Watson v State of Tasmania
[2007] TASSC 28
•10 May 2007
[2007] TASSC 28
CITATION: Watson v State of Tasmania [2007] TASSC 28
PARTIES: WATSON, Karen Meryl
WATSON, Kellie Jean
WATSON, Narelle Kathleen (by her next friend Karen Meryl Watson)
and
WATSON, Anna Emily (by her next friend Karen Meryl Watson)
v
STATE OF TASMANIA
and
FAIR, Andrew
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: LDR 61/1994
DELIVERED ON: 10 May 2007
DELIVERED AT: Hobart
HEARING DATE: 4, 5 April 2007
JUDGMENT OF: Blow J
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Time – More than six years since a step taken in a proceeding.
Supreme Court Rules 2000 (Tas), r56(1).
William Crosby & Co Pty Ltd v Commonwealth (1963) 109 CLR 490, applied.
Aust Dig Procedure [283]
REPRESENTATION:
Counsel:
Plaintiff: M J Brett
First Defendant: P Turner
Second Defendant: K B Procter SC
Solicitors:
Appellant: Shields Heritage
First Defendant: Director of Public Prosecutions
Second Defendant: Murdoch Clarke
Judgment Number: [2007] TASSC 28
Number of paragraphs: 55
Serial No 28/2007
File No LDR 61/1994
KAREN MERYL WATSON, KELLIE JEAN WATSON,
NARELLE KATHLEEN WATSON (by her next friend Karen Meryl Watson) and ANNA EMILY WATSON (by her next friend Karen Meryl Watson) v
STATE OF TASMANIA and ANDREW FAIR
REASONS FOR JUDGMENT BLOW J
10 May 2007
The plaintiffs have applied for an order under the Supreme Court Rules 2000, r56(1), permitting them to take further steps in this action. The application is opposed by both defendants. The subrule relied upon by the plaintiffs provides as follows:
"56 (1) If a step, other than an application on which no order has been made, has not been taken in a proceeding for 6 years since the last step was taken, a party may not take any further step in the proceeding without the order of the Court or a judge."
The action relates to the death of a man named Verne Watson on 7 March 1991. The first plaintiff (Mrs Watson) is his widow. The other plaintiffs are his daughters. The plaintiffs contend that he died as a result of medical negligence on the part of members of the staff of the Launceston General Hospital ("the LGH") , and on the part of the second defendant, a general practitioner. Prior to 1 July 1991, the staff of the LGH were servants or agents of the Launceston Public Hospitals Board, but the State has succeeded to the liabilities of that board by virtue of the provisions of the Health (Regional Boards) Act 1991 and the Health Act 1997. In the statement of claim, the plaintiffs each sought damages both pursuant to the Fatal Accidents Act 1934 and for "personal anguish, distress, psychological harm and nervous shock" said to have resulted from the death. The solicitors for the plaintiffs, Messrs Shields Heritage, have represented all four plaintiffs ever since this action was commenced, but have not taken any step in the action since 1999.
On an application under r56(1), the applicants need "to show that there is good reason for excepting the particular proceedings from the general prohibition which the rule imposes": William Crosby & Co Pty Ltd v Commonwealth (1963) 109 CLR 490 per McTiernan, Kitto, Taylor and Owen JJ at 496. In deciding whether good reason has been shown for a plaintiff to be permitted to take a further step in a proceeding, it will ordinarily be necessary to consider the length of any delays, the reasons for them, and any prejudice that the respondent will or might suffer if the order is made: Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465; Dempsey v Dorber [1990] 1 Qd R 418; Appleby v Mobil Oil Australia Ltd 120/1997 Underwood J; Koziol v Gergel [1999] TASSC 12 (Wright J); Aylett v Attorney-General [2003] TASSC 68 (Cox CJ). Delay on the part of an applicant's solicitor will not be treated as severely as delay on behalf of the applicant personally: Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229; Ulowski v Miller [1968] SASR 277 at 282 – 283; Williams v Smith [1984] Tas R 176 at 186; Aylett v Attorney-General (supra) at par12. If the applicant's case lacks merit, that factor will weigh against the granting of the application: Appleby v Mobil Oil Australia Ltd (supra) at 2; Argo Pty Ltd v Attorney-General(No 4) [2006] TASSC 22.
The plaintiffs' case against the State
On the basis of the pleadings and the evidence before me, the plaintiffs' case as to negligence on the part of LGH staff can be summarised as follows:
·The deceased went to the LGH on 17 February 1991 and sought treatment.
·He was suffering from ischaemic heart disease.
·He had had a myocardial infarction.
·He was experiencing chest, shoulder and arm pain. More specifically, for three or four days he had experienced heavy central chest pain, radiating across to the right and left and sometimes into his arms.
·A doctor at the LGH spoke to him and examined him. An electrocardiogram was performed.
·He was diagnosed by LGH staff as suffering from (a) hypertension, (b) chest pain of probable gastric or oesophageal origin, and (c) heavy alcohol and nicotine intake. No heart condition was diagnosed.
·He was given a dose of an antacid medication named Mylanta, given sublingual nifedipine to reduce his blood pressure, discharged on the same day, and advised to see his general practitioner about his blood pressure, and to take more Mylanta if his pain recurred.
·The LGH staff were negligent in not admitting the deceased for at least 24 hours, not undertaking further investigations, and not referring him to a specialist physician.
·But for such negligence, the deceased would not have died.
It appears from the pleadings and from answers to interrogatories that the State admits that the deceased was seen and treated at the LGH on that day, and that he complained of "several heavy, central chest pain episodes over 3 – 4 days radiating to both shoulders and sometimes going into arms" of approximately half an hour's duration each time. There appears to be no dispute as to what investigations were and were not undertaken, nor as to what treatment was and was not administered. It appears to be common ground that the deceased was discharged on the same day without being referred to a specialist physician, and without any heart condition being diagnosed.
At the hearing of the interlocutory application, the plaintiffs adduced expert opinion evidence as to negligence on the part of the LGH staff from an experienced cardiologist, Dr Bowman. He was cross-examined before me. His evidence was unshaken and uncontradicted. His opinions include the following:
·The deceased should have been admitted to the LGH for monitoring or observation for at least 24 hours.
·An assessment of his cardiac enzymes should have been undertaken, and would have been likely to have revealed that he had had a myocardial infarct.
·He should have been assessed by a specialist physician.
·He should have undergone exercise testing.
·Coronary angiography should have been performed, in Hobart if necessary.
·All such investigations and assessments would have been normal in the circumstances, and would have been expected of a reasonably competent doctor.
·The administration of Mylanta might have appeared to relieve the chest pain, but that would not have been a sound basis for concluding that that pain was not of cardiac origin.
·If the above steps had been taken, it is likely that the deceased's ischaemic heart disease and myocardial infarct would have been diagnosed and appropriately treated.
·It is unlikely that the deceased would have died when he did if appropriate treatment had been given to him. There is less than a 6 per cent in-hospital mortality rate for heart attack patients.
To some extent, similar opinions as to negligence on the part of the LGH staff were expressed by another witness, Dr Collins. I will refer to his evidence in more detail when I deal with the plaintiffs' case against the second defendant.
The evidence before me suggests that the plaintiffs have a very strong chance of establishing negligence on the part of the LGH staff, and a significant chance of establishing a causative link between such negligence and the death of the deceased. As Dr Bowman's statistical evidence indicates, a proportion of heart attack patients still die despite being admitted to hospital. The risk of death was greater than average in this man's case because he was both a heavy drinker and a heavy smoker. In order to succeed, the plaintiffs will need to establish not just that negligence caused the deceased to lose the chance of a better outcome from treatment at the LGH, but that his death was caused by the negligence of LGH staff: Fatal Accidents Act, s4. Proof of causation requires more than a "mere mechanical comparison of probabilities": Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 361. A judge or jury would need to be affirmatively satisfied that the death was caused by the negligence. However, even if the deceased were suffering from a heart condition that was likely eventually to result in his death in any event, negligence resulting in an appreciable acceleration of his death would entitle the plaintiffs to damages: Von Hartmann v Kirk [1961] VR 544 at 545.
When he died, the deceased was 45 years old, and had part-time work as a groundsman with the Northern Tasmanian Cricket Association. According to the statement of claim, he was earning only $230 per week before tax. According to Mrs Watson's affidavit, he was earning $300 per week. She was not working. The deceased's income was so low that they were receiving unemployment benefits from the Department of Social Security. According to Mrs Watson's evidence, the deceased had held his part-time position for only about six or seven months before his death. He had previously been unemployed since 1980. Before then he was a crane driver. At the time of his death, his daughters were aged 16, 14 and 13. The eldest had left home. If the plaintiffs establish an entitlement to damages for the loss of financial support from the deceased, it is likely that their damages will be small. Since he did not work for some 10 years, despite having three young children, was only working part-time, was in poor health, was doing physical work for which he may have been unfit, and was a heavy drinker and smoker, it is likely that damages would be assessed on the basis that there was very little chance of the deceased working full time for long or at all, and a strong risk of there being periods when he would have provided no financial support as a result of incapacity or unemployment. The plaintiffs are also claiming damages under the Fatal Accidents Act for the loss of the deceased's household services. There is evidence that suggests he was a hard-working and industrious householder, but the evidence as to his poor health suggests that the damages under that head could be small too.
So far as the second plaintiff – the eldest daughter – is concerned, I have very little evidence to suggest that the deceased might ever have provided her with financial support. There is evidence that she returned to live with the other plaintiffs for two years from December 1991. Her claim appears to relate only to the loss of financial support and household services for the period of two years when she returned to the family home. The plaintiffs' list of documents indicates that she received income tax assessment notices for the years 1992, 1993, 1994, 1996, 1997 and 1998.
Although the statement of claim contains claims by all four plaintiffs for damages for psychological harm, I was told on the second day of the hearing of this application that only the third and fourth plaintiffs wish to pursue such claims. In July 1997 the plaintiffs' solicitors sent to the solicitors for each defendant, as proofs of expert evidence, two reports relating to the allegations of psychological harm. One was a report by a clinical psychologist, Mr Bakker, relating to the third plaintiff. According to that report, she heard her father vomiting in a bedroom on the night he died but did nothing to help him, suffered from unreasonable feelings of grief-related guilt, and possibly suffered from an adjustment disorder that still troubled her in a minor way some five years later.
The other report was provided by a psychiatrist, Dr Hyde. It relates to the fourth plaintiff. Apparently she discovered her father's dead body. According to Dr Hyde's report, she was already experimenting with drugs, and subsequently left home, went to Melbourne, became heavily involved in a variety of drugs, and eventually came to use a combination of illegal drugs, alcohol and anti-depressants. Dr Hyde concluded with the following comments:
"Her description of her reaction following her father's death is in keeping with a normal grieving process. It is difficult to know whether her escalation of drug use would have occurred in any event, in view of the family history of vulnerability and her prior history of exposure."
A plaintiff is not entitled to recover damages to compensate for ordinary grief or sorrow following a bereavement. There needs to be more than severe emotional distress. There needs to be a "recognisable psychiatric illness", or a "lasting disorder of mind or body", or a "serious mental disturbance outside the range of normal human experience": Mount Isa Mines Ltd v Pusey (1970) 125 CLR 303 at 394; Tame v New South Wales (2002) 211 CLR 317; Hinz v Berry [1972] QB 40 at 42 – 43; Page v Smith [1996] 1 AC 155 at 167; Whayman v Motor Accidents Insurance Board [2003] TASSC 149. The report relating to the third plaintiff suggests that her claim for damages for psychological harm might succeed. However the report relating to the fourth plaintiff suggests that its author cannot be expected to give evidence favourable to her.
The evidence as to the medical condition, life expectancy, work history, and earning capacity of the deceased suggests that the plaintiffs' claims under the Fatal Accidents Act, if successful, might result in awards of damages that are well below average for such claims. However, that does not mean that their claims are unmeritorious. Counsel did not refer me to any authority suggesting that permission to proceed should be less readily granted under r56(1) in respect of small claims rather than large claims. I think this application should be considered simply on the basis that the plaintiffs' claims under the Fatal Accidents Act appear to have merit, and that the third plaintiff's claim for damages for psychological harm appears to have merit, whereas the similar claim of the fourth plaintiff may have no merit.
The plaintiffs' case against the second defendant
It is admitted on the pleadings that at all material times the second defendant practised as a medical practitioner in Launceston, and that the deceased consulted him on 19 February 1991 and 6 March 1991. He kept records in relation to both consultations. In December 1991 he provided the plaintiffs' solicitors with a report about those consultations, apparently for the purpose of them considering whether there had been negligence at the LGH. He provided sworn answers to interrogatories about the 1991 consultations in January 1997. The plaintiff's case against the second defendant is largely based on his admissions in his report of December 1991 and his answers to interrogatories. Apparently he had not seen the deceased prior to the consultation of 19 February 1991. On that occasion he took a history from him, measured his blood pressure, diagnosed hypertension, and examined his heart and lungs without detecting any abnormalities. He said in his report that he asked the deceased about the presence of any further chest pain since his trip to the LGH on 17 February 1991, and that the deceased denied any further chest pains since then. He advised him to reduce his alcohol intake, and to return after two weeks for a follow-up in relation to his blood pressure and the reduction of his alcohol consumption. No further investigations were undertaken on that occasion, and no treatment was prescribed. According to the report, the second defendant saw the deceased again on 6 March 1991, measured his blood pressure, found that it had dropped a little, and noted that the deceased said he was trying to give up cigarettes and had reduced his alcohol consumption from twelve bottles of home brew per day to six. Apparently the second defendant asked the deceased to come back after another fortnight, but the deceased died that night.
The plaintiffs contend that the second defendant was negligent in failing to investigate the possibilities of ischaemic heart disease and a myocardial infarction. They rely on expert opinion evidence from a consultant forensic pathologist, Dr Collins, who provided a report in September 1998. Dr Collins swore an affidavit for the purposes of the present application, and was cross-examined before me. His opinions as to the question of negligence on the part of the second defendant appear in the following passage from his report:
"It would appear that Dr Fair, at his consultation with the late Mr Watson on 19th February, 1991 was 'lulled into a false sense of security' with the diagnosis made by the Launceston General Hospital and the apparent normality of the ECG during this admission. Such should NOT have been the case on the symptoms presented to him.
In view of the history of hypertension and high cigarette consumption, coupled with 3 - 4 days of heavy central chest pain radiating into the shoulders, both the hospital and Dr Fair should have been alerted to the very high probability of at least myocardial ischaemia and probably evolving infarction at the time of his presentation to the Accident & Emergency Department. The ECG is not normal, although without being taken in conjunction with the history of chest pain, it could be reported on as 'within normal limits'. There are minor ST/T wave changes apparent on the tracing, such as the T waves in leads VI and V6 being of different heights, although this abnormality is non-specific and not, of itself, diagnostic of myocardial infarction, further investigations should have taken place.
Dr Fair should have reviewed the tracing taken at the hospital or, more appropriately, performed a further ECG on 19th February and harvested blood for the estimation of cardiac enzymes and even admitted him to hospital whilst this diagnostic work-up being [sic] performed. Strong consideration should also have been given to a stress exercise test and coronary angiography, even if all the above tests did not indicate the presence of an infarction, having regard to the risk factors already stated, in order to more completely document the status of late Mr Watson's coronary artery circulation.
In summary, it is my firm opinion that both the Launceston General Hospital and Dr Fair failed to recognise the significance of the deceased's 3 - 4 day history of central chest pain, as an indicator of underlying ischaemic heart disease and that their limited investigations to exclude such a possibility were INCOMPLETE."
Mr Procter SC submitted that Dr Collins is not qualified to express opinions as to what a general practitioner should or should not have done since he is a consultant forensic pathologist, has had almost no experience of general practice, and has had very little clinical experience. I reject that submission. It may be that, all other things being equal, a consultant physician would be in a better position to express opinions about the work of the second defendant. However the Evidence Act 2001, s79, allows any person who has "specialised knowledge based on the person's training, study or experience" to give "evidence of an opinion of that person that is wholly or substantially based on that knowledge". Dr Collins has medical degrees. He has been in practice for 36 years. He has been a pathologist for about 30 years. As a pathologist, he is familiar with disease processes and diagnostic tests, and gives general practitioners advice about them. I therefore think he is amply qualified to express opinions as to what the second defendant should have done on the occasions when the deceased saw him in 1991. Despite a rigorous cross-examination, his opinion evidence was unshaken. And it was uncontradicted. I therefore think that the plaintiffs have a reasonably forceful case as to negligence against the second defendant.
So far as causation of the death, damages for loss of financial support, damages for loss of domestic services, and damages for psychological harm are concerned, the case against the second defendant has the same strengths and weaknesses as the case against the first defendant.
History of the proceedings
Shields Heritage first received instructions from Mrs Watson in relation to her husband's death on 17 April 1991, about six weeks after he died. During those six weeks she sought advice from the office of the Ombudsman as to whether she had any redress against those involved in her husband's treatment. It was recommended that the family seek legal advice. The initial instructions were taken by a legal practitioner named Michael Bartlett. He had carriage of the file until some time in 1994 or early 1995. The Legal Aid Commission of Tasmania granted legal aid in relation to the matter in 1991.
It was nearly 34 months from the taking of the initial instructions before Shields Heritage filed the writ by which this action was commenced on 16 February 1994. The following day was the third anniversary of the deceased's attendance at the LGH. Mr Bartlett still had carriage of the file when the writ was issued. The evidence before me suggests that very little preparatory work was done prior to the issue of the writ.
It is worth mentioning at this point that there is a body of authority in relation to applications for dismissal for want of prosecution in which it has been said that plaintiffs are not to be penalised for waiting until very late in a limitation period before issuing proceedings, but that plaintiffs are obliged to move with greater speed if they have done that: Closer Settlement Board v Thomas [1982] Tas R 179 at 185; Birkett v James [1978] AC 297; Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells [1999] 3 VR 863 at 874.
Apparently it took some time for Shields Heritage to get around to serving the writ, or arranging for service to be accepted. Appearances were filed on behalf of the defendants on 27 October 1994 and 8 November 1994. A statement of claim was delivered in mid-December 1994. The solicitors for the second defendant delivered a defence on 22 December 1994.
Mr Bartlett apparently left Shields Heritage in late 1994 or early 1995. The file relating to this action then passed through the hands of a number of practitioners in the firm in fairly quick succession. Mr Williams had it for a short time. Mr Tree took it over from him, but he left the firm. Ms Watts took it over for a short time. Mr Stanton came to the firm in May 1995, and took the file over from her either in that month or the following month. He had the file until late January 2004.
The action proceeded slowly during 1995. The solicitors for the second defendant filed and served a notice seeking contribution from the first defendant during April. The second defendant made discovery on oath during May. In June the plaintiffs made discovery on oath, but their list of documents was inadequate. In July the first defendant delivered a defence, as well as a notice seeking contribution from the second defendant. An amended statement of claim was served on the solicitors for the second defendant on 20 July. They served an amended notice of contribution on 24 July. The first defendant made discovery on oath in August. Shields Heritage delivered particulars to the solicitors for the first defendant in September, in response to a request made four months earlier.
The litigation did not continue at that pace. The next step that was taken appears to have been over 11 months later, on 22 August 1996, when Mr Stanton delivered interrogatories to the solicitors for each defendant. Sworn answers were filed on behalf of the first defendant on 9 October 1996, and on behalf of the second defendant on 23 January 1997. Four months later, on 21 May 1997, Mr Stanton delivered particulars of the plaintiffs' damages to the solicitors for each defendant. On 2 July 1997, Mr Stanton wrote to the solicitors for the second defendant forwarding some proofs of expert evidence and indicating that he was ready to hold a compulsory conference. He delivered Dr Bowman's proof seven months later, on 23 February 1998. On 22 May 1998, the second defendant's solicitors wrote to Shields Heritage seeking confirmation that they were not proposing to deliver any further expert proofs, and indicating that they would provide their expert proofs once that confirmation was received. Such confirmation was not forthcoming.
As a result of the commencement of the Health Act on 1 July 1997, it was necessary for Mr Stanton to arrange for the State of Tasmania to be substituted as the first defendant. He prepared a consent memorandum, had it signed by the solicitors for both defendants, and filed it on 1 July 1998. A judge made the requested order that day. The solicitors for the second defendant obtained a similar order in their contribution proceedings in August 1998.
Ten months later, on 25 June 1999, Mr Stanton wrote to the solicitors for both defendants forwarding a proof of Dr Collins and some documents relating to the plaintiffs' finances, as well as appointing a compulsory conference for 15 July 1999. On 2 July 1999, he delivered amended particulars of the plaintiffs' damages. For the purposes of r56(1), that was the last step taken in the proceeding. On 15 July 1999, the second defendant's solicitors wrote to Shields Heritage suggesting that the matter was not ready for a compulsory conference because they were seeking comments on the proof of Dr Collins, and suggesting that the plaintiffs' discovery had been inadequate in various respects. The compulsory conference was not held.
Until July 1999 the plaintiffs' litigation was funded by the Legal Aid Commission of Tasmania. But in that month the Commission decided to cease funding civil litigation. An officer of the Commission wrote to Shields Heritage on 14 July 1999 advising of the termination of legal aid. There was an appeal to a review committee, but the chair of that committee wrote to Shields Heritage on 23 September 1999 advising that the Commission's decision to terminate aid had been confirmed. The plaintiffs' solicitors should have completed the litigation long before 1999, even if it had been necessary to take the case to trial.
Mr Stanton did not know what to do in consequence of the termination of legal aid. On the one hand, he thought it would be unfair to abandon the plaintiffs and their case. On the other hand, he was reluctant to do anything further for them when there was a risk that his firm would not get paid. Mr Stanton dealt with the situation by writing two vague letters to Mrs Watson. On 1 October 1999 he wrote advising of the review committee's decision, and saying the following:
"We will, therefore, need to look at alternative ways of funding the continuation of your claim. We look forward to receiving your response to our previous correspondence."
That last sentence apparently referred to a two-page letter dated 14 September 1999 in which Mr Stanton sought instructions from Mrs Watson. I have no evidence as to what instructions he sought. Apparently Mrs Watson did not respond. Mr Stanton wrote to her again on 18 October 1999, simply saying this:
"We refer to the above matter and look forward to receiving your further instructions as a matter of priority."
Mrs Watson is unfamiliar with lawyers and their quaint expressions. She might not have realised what she was being encouraged to do.
Nearly two years went by without any further activity on the part of Shields Heritage. Then the firm prepared a "Notice of Intention to Cease to Act as Practitioner", which was served on the second plaintiff on 5 September 2001, and on Mrs Watson on 8 September 2001. I have serious doubts as to the propriety of the firm's conduct at that stage. Unless it has been expressly agreed otherwise, solicitors who undertake to conduct an action may discharge themselves only if they have good cause to do so: Underwood, Son & Piper v Lewis [1894] 2 QB 306. The outstanding request for instructions had been addressed to only one of the four plaintiffs, but the notices related to all four. Under the Legal Profession Act 1993, s138(2), legal practitioners may cease to represent clients who fail to give reasonable security for future costs, fees, charges and disbursements when required to do so, but the letter of 1 October 1999 fell a long way short of requiring the plaintiffs to pay money in advance.
The plaintiffs responded to the notices by making an appointment to see Mr Stanton. At least three of them saw him on 5 October 2001. They made arrangements to pay $5,000 into his firm's trust account to cover anticipated disbursements. It was agreed that the money would be paid in January 2002, since Mrs Watson had the money invested. Mr Stanton assured the plaintiffs that he would get the matter moving for them. But he did nothing that year.
On 31 January 2002, the sum of $5,000 was paid into the firm's trust account as promised. Nothing happened in February or March, but on 19 April a notice of intention to proceed was filed and served on the solicitors for both defendants. Mr Stanton wrote attempting to convene a compulsory conference to be held on 17 May 2002. He prepared a draft certificate of readiness, and a draft interlocutory application relating to the proofs of the second defendant's expert witnesses. However the compulsory conference did not proceed, the interlocutory application was not filed, and the certificate of readiness remains a draft to this day. The second defendant's solicitors wrote back on 29 April pointing out that the plaintiffs' discovery remained inadequate. One of the plaintiffs brought in a quantity of papers to Mr Stanton's secretary on 14 May 2002, but nothing further happened for a very long time.
Mr Stanton had a "resubmit system". Files in that system were brought out every fortnight or every month and placed on a side table to await his attention. The file relating to this action was dealt with in accordance with that system but, each time it was brought out, Mr Stanton returned it, to be resubmitted to him at a later date. Each time he resolved that he really would attend to it the next time.
In January 2004, he realised that the file had been repeatedly resubmitted for too long, and that he needed to do something to break the cycle. He decided to seek help from a partner of the firm in Hobart, Mr Chambers. He sent the file to Mr Chambers, asking him to review it and advise as to what needed to be done to advance the matter. Mr Chambers looked at the file on or about 3 March 2004, and spoke to Mr Stanton about it on the phone. They discussed the issue of further discovery. It was agreed that Mr Chambers would prepare a letter to the plaintiffs. But he forgot about the file, and did nothing about it. He also had a resubmit system, but he did not use that system in relation to this file. He did not see it again for some 17 months.
Mr Stanton apparently did not follow up the conversation that he had with Mr Chambers in early March 2004. On 30 June 2005 he left Shields Heritage to practise as a barrister. In early August 2005 the fourth plaintiff, who by then was 27 years old, phoned Shields Heritage and asked to speak to Mr Stanton. She had done that a number of times over the previous few years, but had never succeeded in speaking to him, and had always left messages for him, without ever receiving any response. This time she was told that Mr Stanton was no longer with the firm. In her words, she was "unable to get any suitable answers regarding the status and progress of our case". She wrote to the Law Society of Tasmania on 3 August 2005, seeking assistance to obtain information on the progress of the case.
The Law Society contacted Shields Heritage. As a result, Mr Chambers looked for the file. He found it on the floor in a corner of the firm's Hobart boardroom. It is likely that the file had been on the boardroom table one day; that someone had cleared the table so that it could be used, perhaps for a conference with clients; that the file had been put on the floor in the corner then; and that it had lain there for a very long time. Mr Chambers used that boardroom reasonably frequently, but apparently had not ever noticed the file in the corner.
Another practitioner in the firm's Launceston office, Mr Masters, took carriage of the file once it was found. He still has carriage of it. He and the managing partner of the firm met the four plaintiffs on 15 August 2005. It was decided to brief counsel to advise as to evidence and liability. A brief was delivered to counsel on 15 September 2005. The barrister chosen by Mr Masters was Mr Stanton.
Apparently neither Mr Stanton nor Mr Masters realised at that stage that an application under r56(1) was required. The sixth anniversary of the last step in the proceedings had passed unnoticed on 2 July 2005. A notice of intention to proceed was filed and served on 15 September 2005. Mr Masters drafted a supplementary list of documents, but it remains a draft. There was correspondence between the solicitors as to whether the appointing of a compulsory conference in 2002 amounted to a step in the proceeding. It seems that either Mr Stanton or Mr Masters decided that there should be an application under r56. On 16 January 2006 Mr Masters wrote to the solicitors for each defendant asking whether they would consent to an order granting leave under that rule. He was promptly informed that they would not. The rest of 2006 was spent slowly working up the application that is now before me. The application was filed on 28 June. Affidavits were sworn by two witnesses in August, two in September, one in October, and three in November. Whilst the tempo of the litigation had increased, it was still too slow. However there has been no delay on the part of the plaintiffs or their solicitors since the filing of the last affidavit on 23 November 2006.
The action is not ready for trial. It is true that the pleadings are closed, that there are no outstanding requests for particulars, that all parties have made discovery, that the plaintiffs' solicitors have delivered expert proofs, and that the plaintiffs have interrogated both defendants. However various things remain to be done. There needs to be further discovery on the part of the plaintiffs. If the fourth plaintiff's claim for damages for psychological harm is to be pursued, I expect a need for another expert proof might be perceived. The defendants might want to interrogate some or all of the plaintiffs, but probably not until the plaintiffs' discovery is complete. The proofs of the defendants' experts have not been delivered. If and when they are delivered, the plaintiffs' solicitors might decide to deliver further expert proofs, possibly including one or more proofs from new experts.
Responsibility for the delays
The defendants contend that the delays in this action were not entirely the fault of the plaintiffs' solicitors. They contend that the plaintiffs could and should have done more to chase up their solicitors, particularly from 1999 onwards.
It is important not to lose sight of the fact that there are four plaintiffs. Three of them were teenagers when their father died. The two youngest were minors when the writ was filed. Mrs Watson sued as their next friend. When her husband died, she was a housewife who had never held a job. She did a TAFE course in 1992, the year after her husband died, and went out to work for the first time at the end of that year. She has worked ever since, for organisations that provide services for the disabled. It was clear from the way she gave her evidence that she had little understanding of the legal system, that she placed her trust and confidence in Shields Heritage at all material times, and that she simply did not realise how abnormal and unacceptable the delays in this case were. The information that I have about her daughters' careers suggests that they would probably all have been equally unfamiliar with the legal system. Mrs Watson undertook the role of liaising with Shields Heritage until about 1999, and that the fourth plaintiff took over that role at about that time. Mrs Watson nursed her dying mother from 1999 until August 2001. The notices from Mr Stanton advising that his firm intended to cease to act were received shortly after her mother's death.
I am satisfied that, as a general rule, the plaintiffs provided their solicitors reasonably promptly with whatever information and documents they were asked for. The only exception suggested by the evidence concerns the letter of 14 September 1999. Mrs Watson did not provide the instructions that Mr Stanton then sought, whatever they were, but his follow-up correspondence did not specifically remind her of the instructions that he was seeking and did not spell out the consequences of not promptly providing those instructions. There is no suggestion that there has been any shortage of instructions since September 2001. For most of the intervening two years, Mrs Watson was nursing her dying mother. Apparently the desired instructions were not sought from any of the other plaintiffs.
There are a number of strategies that clients can adopt in order to accelerate the work of slow solicitors. They can write to them, ring them, make appointments to see them, arrive at their offices and refuse to leave until a solicitor sees them, complain to the Law Society, or threaten to take their work elsewhere. Some clients are more assertive than others. Some are more confident than others. A client who understands what step his or her solicitor should be taking next has a great advantage over a client to whom legal proceedings are mysterious and incomprehensible. Changing solicitors would be a frightening step for many litigants to take. Many litigants must be reluctant to change solicitors because of fears that work will be duplicated at their expense, and fears that the new solicitors might be no better than the old ones. In my view the plaintiffs in this action, having regard to their apparent inexperience with lawyers and the sorts of people that they seem to be, were not well placed to persuade their solicitors to do their work more quickly. The attempts that they made seem to have proved futile. I do not think they can be blamed for not making greater efforts to speed up their solicitors.
In my view the plaintiffs' contributions to the delays in this matter have been minimal and relatively blameless, and the delays are substantially the responsibility of their solicitors.
Prejudice
If this action proceeds to trial, the principal matters that will need to be covered in the evidence comprise the medical condition of the deceased, the cause or causes of his death, his life expectancy and earning capacity, his financial affairs, the financial affairs of the plaintiffs, and the psychological effects of the death of the deceased on the third and fourth plaintiffs.
An inquest was conducted into the death of the deceased. For the purpose of that inquest, a post mortem examination was conducted by a pathologist, Dr Roberts, on the day after the death. He opined that the causes of death were acute myocardial infarction and coronary artery atherosclerosis. Dr Roberts still practises in Launceston. He swore an affidavit for the purposes of this application and was cross-examined before me. As far as I am aware there is no reason to doubt his opinions as to the causes of the death.
Records were kept by the LGH staff in relation to the deceased's attendance on 17 February 1991. Records were kept by the second defendant in relation to the deceased's two consultations with him.
There is no suggestion in this case that any specific documents have been lost or destroyed, nor that any witnesses have died, disappeared, or become incapable of giving evidence. Mr Procter SC submitted that, if the action were to proceed, the defendants would suffer "actual prejudice" in relation to the assessment of damages. He made that submission on the basis that, as a result of the long delays in this case and the plaintiffs' inadequate discovery, the defendants now have very little ability to investigate the plaintiffs' assertions as to how long the deceased would have lived if he had received the medical attention they say he should have received, what he would have earned, and what he would have spent on his family. However, those matters were always matters of conjecture. No doubt it would be somewhat more difficult to investigate them now than it would have been in 1991, but that is an ordinary result of the passage of time and the consequential dimming of memories and disappearance of information. The prejudice identified by Mr Procter in that submission is not in the same category of specific prejudice as that resulting, for example, from the death of a witness or the destruction of identifiable documents.
There is no doubt that the defendants' chances of receiving a fair trial in this action have been impaired to some degree as a result of lengthy delays to which they made no contribution. The memories of witnesses as to key events in 1991 are likely to be impaired or distorted. Although records were kept by both the LGH and the second defendant, it is inevitable that there will be questions as to matters not recorded. For example, the second defendant apparently did not record whether the deceased gave him a history of the chest pain continuing over three or four days and radiating across to the right and left and sometimes into his arms. Those details were noted at the LGH, but any surviving information as to how much the deceased told the second defendant about his pain, and what the second defendant asked him in order to take a history in relation to that pain, is only available from the second defendant's memories as to what was said or not said over 16 years ago. The first defendant is similarly handicapped in relation to the investigation of unrecorded details of conversations with LGH staff in 1991. I have no evidence to suggest that the defendants knew that claims for damages were being made against them, or were likely to be made against them, prior to 1994. I have no evidence to suggest that they might have known what the plaintiffs' experts were likely to say prior to the delivery of the proofs of Drs Roberts, Bowman and Collins in 1997, 1998 and 1999 respectively. However the allegations of negligence are not new this year. The defendants have known of the negligence claims at least since 1994.
I would be surprised if the financial record-keeping of the deceased and the plaintiffs has been ideal, or even better than average. I would be surprised if no difficulty is encountered in marshalling and investigating the available evidence as to all relevant aspects of their financial histories, but I expect that evidence painting a sufficiently informative picture of their financial histories will be available. No specific inadequacies in the available financial evidence were identified on the hearing of this application. Whilst evidence as to some matters of detail may well have been lost, I think it is quite unlikely that the loss of any such evidence could make a significant difference to the assessment of the plaintiffs' damages.
The delays in this action may have had adverse consequences for the second defendant not only in relation to his chance of a fair trial, but also in relation to his reputation. Allegations that he negligently failed to prevent a patient's death have been hanging over his head for many years. In a professional negligence case, the additional prejudice to a defendant arising from inordinate and inexcusable delay with respect to a claim putting that defendant's reputation at risk is a factor that must be taken into account: Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells (supra) at 880.
To proceed or not to proceed?
The delays in this action between April 1991 and November 2006 were inordinate and inexcusable. There is no reason why this action should not have been settled or tried in the mid-1990s. If this action proceeds to trial, there is a significant chance that the defendants will be disadvantaged to some degree, through no fault of their own, as a result of memories fading and becoming distorted, and evidence having become unavailable. However I think it is very significant that an inquest was conducted, and that records were kept and preserved by the LGH and the second defendant. I also think it is very significant that the delays in this matter were caused substantially by the plaintiffs' solicitors, rather than the plaintiffs themselves.
In my view, all things considered, the plaintiffs have shown that there is good reason for excepting this action from the general prohibition which r56 imposes, namely that they have some meritorious claims for damages which, bearing in mind their circumstances, they (as distinct from their solicitors) have generally been making reasonable efforts to pursue for many years. I therefore think that, despite the matters I have mentioned that weigh in favour of the defendants, the plaintiffs should have the order that they are seeking.
I order that the plaintiffs be permitted to take further steps in this action.
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