Downie v Residual Health Management Unit HC Auckland Cp351-Sd00

[2001] NZHC 400

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CP351-SD00

BETWEEN GEORGE WATT DOWNIE
Plaintiff

AND RESIDUAL HEALTH MANAGEMENT UNIT
Defendant

Date of Hearing: 27 April 2001

Counsel: K G Davenport for Plaintiff
K Anderson for Defendant

Judgment: 23 May 2001

RESERVED JUDGMENT OF PRIESTLEY J

Introduction

[1] On 5 February 2001 I delivered an interim judgment on the plaintiffs application seeking leave to commence a proceeding pursuant to s. 4(7) of the Limitation Act 1950. I adjourned the application on a part-heard basis to enable the plaintiff to file an amended statement of claim.

[2] This judgment follows a resumed hearing and must be read in conjunction with my earlier interim judgment.

[3] The intended plaintiff has filed an amended statement of claim which differs substantially from the pleading which was before me last year. Additionally the plaintiff has resiled from his counsel’s concession, made at the earlier hearing, that he was not suffering under a disability for the purposes of s. 24 of the Limitation Act.

Amended Statement of Claim

[4] The amended statement of claim recites the various factual allegations reviewed in my interim judgment. Reference is again made to the plaintiff’s admission to North Shore Hospital on 5 February 1993; his discharge, despite his alarming symptoms on 9 February 1993; his readmission to the same hospital for surgery on 11 March 1993; and the 15 July 1993 removal of an 18 centimetre rubber drain which had been left in situ.

[5] The amended statement of claim alleges that the defendant was obliged to observe various statutory obligations and duties imposed by ss. 4, 8 and 11 of the Health and Disability Services Act 1993.

[6] The first cause of action which claims special damages of $19,921.00 and general damages of $40,000.00 is based on negligence. Allegations are made that the defendant breached its duty of care to the plaintiff by failing to have adequate staffing in place to ensure continuity of treatment; by discharging the plaintiff because of a shortage of inpatient beds; by failing to provide the plaintiff with written or oral instructions about the management of his rectal bleeding; by failing (being essentially a systemic failure) to provide the plaintiff with relevant information about readmission; and by failing to have adequate protocols in place to deal with the situation.

[7] The second cause of action seeks the same relief on the same allegations and alleges breaches of statutory duty arising under The Health and Disabilities Services Act.

[8] The third cause of action seeks $40,000.00 by way of exemplary damages. This claim focuses on the alleged failure to remove the rubber drain. Again it is alleged that the defendant owed the plaintiff a duty of care in respect of surgical procedures, particularly with regard to management protocols for the insertion, removal and checking of surgical devices and having in place practices or protocols which recognise the risk of surgical implements being overlooked.

[9] It is alleged in this third cause of action that the North Shore Hospital had no protocols in place to ensure the counting of surgical devices in operations and that any existing practices or protocols were not adhered to, with reckless disregard for the safety of the plaintiff and other patients. The actions of the defendant, it is alleged, amounted to gross negligence and reckless and contumelious disregard for the plaintiff’s rights.

[10] The amended statement of claim also alleges that the plaintiff was suffering from a disability, a psychiatric disorder, from the “date of the first operation” until approximately September 1995.

New Evidence and Alleged Disability

[11] The plaintiff filed a further affidavit (16 March 2001). He deposes:

“7. During the period following my discharge from North Shore Hospital until my final discharge from the twice daily care of the District Nursing Service; being a period of two and a half years (13 April 1993 until 26 September 1993 [sic]), I was in a constant state of being unwell. This state of being not only covered constant acute pain, numerous re-admissions to North Shore Hospital and to the Southern Cross Hospital, a heart attack, but also that of psychological turmoil. This turmoil manifested itself in long periods of depression and worry . . .

8. At the time, I did not think my mental state was linked or was related to the physical events that were occurring in my body . . . At one stage, my GP . . . suggested that I start a course of anti-depressive medication. Due to the large amounts of medication that I was on at the time, plus the adverse publicity being raised at the time about this type of treatment, I decided that I would struggle to overcome my mental state without medication . . .

9. . . . All that I do know is that before leaving the hospital and during the two and a half years of nursing care I suffered from varying long degrees of depression and often deep mental fear of death . . . Having achieved [a] state of wellbeing I was able to look back and judge the past events in relation to my condition and then decided to take the necessary action against Waitemata Health.”

[12] An affidavit was also filed from M E C Honeyman, a registered medical practitioner and specialist psychologist who saw the plaintiff on 13 March 2001. Dr Honeyman’s conclusions are:

“48. There is a very clear history from Mr Downie, which is independently corroborated by his wife, of quite severe and debilitating depression, beginning in 1993 and persisting through probably until 1996. It may arguably still be incompletely resolved. The depression was not detected because of Mr Downie’s coping style, in which he reassured others that everything was fine. His GP made this diagnosis in January 1995, but through fear or lack of knowledge, Mr Downie did not undertake active treatment at that stage.

49. In my opinion, Mr Downie did not appreciate the fact that he had a major depressive illness at that stage and he did not appreciate the impact that this disorder had on all levels of his functioning.”

Principles and Submissions

[13] I indicated in my interim decision that in respect of this s. 4(7) application I would unhesitatingly adopt the approach prescribed in W v Attorney General [1999] 2 NZLR 709 unless I was totally satisfied that the plaintiffs claims were statute barred. As stated by Tipping J:

“[115] Put shortly, applications under s. 4(7) of the Limitation Act 1950 should be determined without prejudice to issues of limitation, unless the intended claim is beyond doubt on its face statute barred. In that case leave should be refused. If the date of accrual of the cause of action, or any other aspect of limitation is doubtful. leave should be granted, if otherwise appropriate, and all limitation issues determined at trial. (737)”

[14] On the basis of the new evidence supplied (supra) the plaintiff now contends that from 1993 until September 1995 his depression and psychiatric state was such that he was unable to appreciate the linkage between events in 1993 and his general state of physical and mental health, with the result that his various causes of action did not accrue until September 1995.

[15] Additionally the plaintiff alleges that he has suffered from a disability from “the date of the first operation” until approximately September 1995 for the purposes of s. 24 of the Limitation Act, such disability being a psychiatric disorder.

[16] Section 24 of the Limitation Act 1950 relevantly provides:

“24 Extension of limitation period in case of disability

If, on the date when any right of action accrued for which a period of limitation is prescribed by or may be prescribed under this Act the person to whom it accrued was under a disability,-

(a) In the case of any action . . . in respect of the death of or bodily injury to any person, or of any action to recover a penalty or forfeiture or sum by way thereof by virtue of any enactment where the action is brought by an aggrieved party, the right of action shall be deemed to have accrued on the date when the person ceased to be under a disability or died, whichever event first occurred; or

(b) In any other case the action may be brought before the expiration of 6 years from the date when the person ceased to be under a disability or died, whichever event first occurred,-”

[17] Counsel for the defendant mounted cogent attacks on every aspect of the plaintiffs claim and the leave application. It was pointed out that the Health and Disability Services Act 1993 did not receive royal assent until 10 May 1993 with the result that the various statutory obligations and duties pleaded (supra, para. [5]) would not have extended to the defendant at the time of the plaintiff’s February 1993 discharge. This submission is undoubtedly correct and places the plaintiff in the invidious position of having to amend the statement of claim yet again to refer to the relevant legislation which was operative in February 1993.

[18] With regard to the first cause of action counsel for the defendant submits that whether or not a patient should be discharged is a clinical decision made by a doctor. It is not a decision driven by a hospital facility or by administrative considerations. Counsel submits that the first cause of action (negligence simpliciter) cannot succeed since the discharge in February 1993 would constitute medical misadventure as defined by the Accident Compensation Act 1992. If the alleged facts constitute medical misadventure in substance then the bar of the Accident Compensation legislation must apply, (Attorney General v McVeagh [1995] 1 NZLR 558; van Soest v Residual Health Management Unit [2000] 1 NZLR 179).

[19] Counsel observed the pleading in the amended statement of claim alleged that the plaintiff was suffering from a psychiatric disorder from the date of the “first operation” until September 1995. On the facts currently available, the first surgical procedure to which the plaintiff submitted was that carried out at the private Southern Cross Hospital on 11 February 1993. Thus, submits the defendant, the plaintiff cannot allege that for the purposes of s. 24 he was under a disability on the date when his first right of action accrued (i.e. the date of his discharge from North Shore Hospital two days earlier).

[20] Counsel further submitted that the first cause of action, quite apart from any statutory, bar presented by the Accident Compensation legislation, could not succeed because the plaintiff had not discharged the onus of showing the alleged breach of duty in fact caused the alleged harm or that such an allegation had any prospect of success.

[21] Counsel disputed whether the evidence of Dr Honeyman and the plaintiff in combination was sufficient to establish that the plaintiff was labouring under a psychiatric illness and/or had a disability. Dr Honeyman’s affidavit, it was submitted, did not pinpoint any date in 1993 when the plaintiff experienced his depression nor was there evidence that he was labouring under an unsound mind at any stage.

[22] On the third cause of action relating to the claim for exemplary damages counsel’s submission was that leaving the drain in situ did not, on the authorities, constitute gross negligence.

[23] Counsel for the plaintiff met these objections with the submission that there was sufficient evidence before the Court to justify granting leave under s. 4(7) on the normal terms. It was submitted that the first cause of action did not accrue until such time as the consequential damage manifested itself.

[24] Reference was made to the Court of Appeal decision, T v H [1995] 3 NZLR 37 where Hardie Boys J stated:

“Whether or not a person is of unsound mind it must depend upon the purpose of the enquiry, and must in all cases be a matter of fact and degree. In the present context, the question must be determined in the light of the purpose of s. 24 of the Limitation Act. Read against the definition of s. 2, that purpose is plainly to ensure that a person who is incapable of or disabled in a more general sense from instituting proceedings would not lose the right to do so while the incapacity or disablement continues. In the light of that purpose I have no doubt that one who from established psychiatric or psychological causes is unable to bring him or herself to initiate proceedings is to that extent of unsound mind and so under a disability while that condition lasts. (at 49)”

Counsel also referred me to P v T [1998] 1 NZLR 257 (260) where Richardson P said:

“. . . a person claiming a disability by way of unsoundness of mind for Limitation Act purposes must show that the alleged unsoundness: (i) resulted from a demonstrable and recognised mental illness or disability; and (ii) sufficiently inhibited the capacity to sue as to preclude him or her from bringing proceedings, rather than being just an inability to face up to the process of suing.”

[25] It is sufficient, in counsel’s submission, to have produced evidence suggesting that the plaintiff was under a disability in 1993 for the purposes of crossing the s. 4(7) threshold.

Decision

[26] The attacks mounted by the defendant’s counsel on every aspect of the plaintiffs claim are hard to resist. With respect, even in its repleaded form, the plaintiffs causes of action bear some resemblance to a grab-bag of allegations designed to avoid formidable substantive and procedural obstacles.

[27] It is difficult to see how on the face of current Accident Compensation legislation the decision made on February 1993 to discharge the plaintiff from North Shore Hospital and the undoubted negligence in failing to remove the surgical drain can be classified as anything other than medical misadventure. On the basis of the authorities reviewed in my interim decision it is difficult to see how failure to remove the drain can form a foundation for an exemplary damages claim. The plaintiff will also face formidable difficulties in discharging the onus that his depression between February 1993 and September 1995 constituted either a disability for the purpose of s. 24 or a condition which would operate to defer the accrual of the negligence causes of action to September 1995.

[28] However, those are not the issues which I need to decide for the purposes of a s. 4(7) application. The plaintiff’s three causes of action are arguable. They may fly in the face of current authority. However, I rather suspect that at some future date Courts will be tempted to provide remedies for victims of medical misadventure and systemic failures in hospitals over and above the benefits and support currently available under the Accident Compensation legislation.

[29] For all sorts of complex social, fiscal, and legislative reasons the compensation entitlements of the victims of negligence have fallen far short of the much trumpeted recommendations of the 1967 Woodhouse Commission Report. Such a perception may well lead to the Courts providing remedies which are not currently available in the same way that in recent times common law remedies have been extended to include the victims of historic sexual abuse. It is never beyond the wit of judges to expand the common law in an innovative way without violence to its principles and precedent. As Cardozo rightly pointed out “. . . the end of the law . . . determines the direction of its growth . . . ” The Nature of the Judicial Process (1921) 102.

[30] For the purposes of this decision, it is unnecessary for me to speculate on the problems which may confront the plaintiff’s causes of action or on whether the plaintiff’s reliance on statutory obligations and duties may, in this or some future case, provide a route to bypass the current shields available to clinical negligence.

[31] What I must instead determine is whether the Limitation Act defence which is clearly available to the defendant should be determined at this pre-trial stage. On the authority of W v Attorney General (supra) I should only refuse leave if the intended claim is beyond doubt statute barred on its face.

[32] I am unable to make such a finding. Despite perceived weaknesses, in my judgment the date of accrual of the plaintiffs causes of action, whether the plaintiff was indeed under a disability for the purposes of s. 24, and whether the intended claims are statute barred, are all matters which on the current state of the evidence are surrounded by doubt.

[33] It would be wrong, in my judgment, to determine Limitation Act issues when that doubt is present. The Court of Appeal has ruled against such a threshold determination.

[34] Accordingly it is appropriate for me to grant leave pursuant to s. 4(7) of the Limitation Act 1950 to the plaintiff to commence his proceeding outside the two year limitation period. Such leave is without prejudice to the defendant’s rights to raise all Limitation Act defences available to it.

[35] Although the plaintiff is legally aided and obliged to seek costs I decline to award costs against the defendant on this application. The plaintiffs initial pleadings and application were far from satisfactory. As a result of my direction that an amended statement of claim should be filed the defendant has been obliged to attend and make submissions at two hearings rather than one. Had the plaintiffs claim been properly pleaded that situation could have been avoided.

Orders

[36] I make the following orders:

[a] Leave is granted to the plaintiff pursuant to s. 4(7) of the Limitation Act 1950 to commence his proceedings outside the two year limitation period.

[b] Such leave is without prejudice to the defendant’s rights to raise any defences available to it under the Limitation Act 1950.

[c] The parties will bear their own costs.

[d] The Registrar is directed to list this matter for a Directions Conference (45 minutes) before a Master at the first available date. I anticipate that such a Directions Conference will be limited in the first instance to timetable orders and directions relating to the filing of a statement of defence and interlocutory applications.