Smith v Harvey-Sutton[1998] QCA 232

While the extraordinary delay in this case has been “explained” in the sense that substantial material has been filed showing the steps taken between the various parties in the action, counsel for the appellant plaintiff (Mr Clifford QC) conceded that the explanation is not very clear.  It is difficult to cavil with the learned Chamber Judge’s description of the delay as “inordinate and inexcusable”.  At the same time it must be noted that proceedings are not unilateral and that very long delays are almost invariably the result of inaction on both sides.  It is pointless in this case to attempt to identify fault as between the solicitors, barristers and the plaintiff himself, beyond mentioning that the plaintiff’s own affidavit reveals personal disorganisation and procrastination in responding to messages and requests from his solicitors designed to obtain his answers to the interrogatories.

There is in this case the unusual feature that the defendant’s application to strike out was not brought until the plaintiff was on the brink of seeking a date for trial.  As mentioned above the plaintiff did not require any indulgence from the court in order to achieve this, and the defendant’s application would seem to be in consequence of treating as a “last straw” the plaintiff’s failure up to that time to produce answers to the defendant’s interrogatories.  The defendant’s solicitors had sent at least two warning letters on this subject before bringing the application to dismiss the action.  Even so, the circumstances existing at the time the application was heard were that these answers had been delivered, and extensive information concerning quantum had already been obtained pursuant to the plaintiff’s statement of loss and damage and the supporting documents mentioned in that statement.  The matter was in all respects ready for trial other than the filing of a statement of expert and economic evidence by the solicitors for the defendants.  It was the belief of the plaintiff’s solicitor that the matter could proceed to hearing in Mount Isa in the next sittings of the Supreme Court.  These factors should be seen as operating against a dismissal of the action.

In some cases the absence of an adequate explanation of delay may be a relatively influential factor in the court’s assessment of an application to dismiss.  In the present case there is a picture of extraordinarily slow but steady exchange of relevant information, with the solicitors for both relevant parties participating in the process right up to the brink of readiness for trial.  On analysis it seems to us that the procedural history is not a particularly persuasive factor either way in the resolution of the present matter.  The most important issue would seem to be whether the delay has caused material prejudice to Dr Harvey-Sutton and whether a fair trial could now be had.^[1]

Grounds

The appeal was argued by counsel under four main points.

1. refusal by the learned Chamber Judge to permit counsel for the plaintiff to cross-examine Dr Harvey-Sutton;

2. erroneous finding that Dr Harvey-Sutton had “no independent recollection” of the consultations;

3. no sufficient prejudice shown to justify the order;

4. the defendant’s solicitor’s letter of 16 October 1996 should be taken as an intimation of agreement that the action should proceed.

During argument Mr Clifford conceded that it was difficult to show that the plaintiff incurred any detriment in reliance upon that letter and we do not understand point 4 to have been pressed.  It will be appropriate then to deal with the first three points.

Point 1 - Refusal to permit cross-examination of Dr Harvey-Sutton 

An affidavit of Dr Harvey-Sutton was filed.  It stated that his recollection of the consultations which he had with the plaintiff “is much more hazy than it was when this action commenced in 1981".  He continued–

“ Whilst I am confident that my treatment of the First Plaintiff was reasonable, I consider that I will be severely prejudiced should the matter be allowed to proceed to a trial after the expiration of almost 20 years because my memory is much more hazy and necessary witnesses cannot be located or, if able to be located, are likely to have much poorer memories of the events in question.”

As is common now in chamber proceedings, no shorthand writers were in attendance and no transcript of proceedings is available.  There is a conflict in the evidence provided by various deponents as to what actually happened and in particular whether any formal ruling or determination was made by the learned Chamber Judge on the question of cross-examination of the deponent.  It is clear that counsel for the plaintiff wished to cross-examine Dr Harvey-Sutton on his affidavit and that this requirement had been communicated to the defendant’s solicitors some days before the matter was heard.  Upon being advised that he was required for cross-examination, his solicitors responded that he would not be able to attend court on the return day.  The plaintiff’s solicitors thereupon indicated that they would be agreeable that he be cross-examined by telephone.  This seems to have been the expectation of those representing the respective parties up to the time when the matter was to come on.  However a practical difficulty emerged in that Dr Harvey-Sutton had arranged to leave Mount Isa to go to Cloncurry at approximately noon on the day of the hearing.  It followed that he was available for cross-examination by telephone only until noon.  This was intimated to counsel for the plaintiff shortly after the callover of chamber matters.  Unfortunately the matter was not then reached until some time after noon.  During the proceedings counsel for the plaintiff applied “to cross-examine Dr Harvey-Sutton” upon which the doctor’s counsel advised the Judge that his client was not available as he was on his way to Cloncurry.  Counsel for the plaintiff said that notice had been given requiring him for cross-examination.  What ensued is the subject of differing interpretations by the parties’ solicitors.

It would seem that neither counsel adverted with any precision to the nature of the application that was being made.  Order 41 r. 27 relevantly provides–

“ 27 (1) Any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial.

(2) Such notice may be served at any time before the expiration of 7 days next after the expiration of the time allowed for filing affidavits in reply, or within such further period as the Court or a Judge may allow.

(3) If any such deponent is not produced accordingly, his or her affidavit shall not be used as evidence, unless by the special leave of the Court or a Judge.

. . .”

It would have been more appropriate had the plaintiff’s counsel applied for a ruling that the defendant not be permitted to read the affidavit unless the deponent was produced for cross-examination.  That no doubt would have provoked an application by counsel for Dr Harvey-Sutton to seek special leave of the Judge under sub-rule (3) for it to be read notwithstanding his non-attendance.  The difficulty of applying this rule is enhanced by the fact that it relates to situations of a party “desiring” to cross-examine a deponent, and of course there is no general right to cross-examine a deponent in chamber matters.^[2]  Presumably in order to get over the initial hurdle of showing that this was an appropriate case for cross-examination, counsel for the plaintiff indicated that he wished to discover precisely what Dr Harvey-Sutton recalled  about consultations with the plaintiff and the state of his knowledge at the date of issue of the writ.  An affidavit filed on behalf of the plaintiff alleges that his Honour then stated that the memory of the doctor would naturally be worse now than it would have been previously due to the passage of time, and that it was “not necessary to have the [doctor] called for cross-examination”.  However an affidavit filed on behalf of the doctor asserts that the Judge was not asked to make a ruling on the matter of the cross-examination of the doctor and that counsel for the plaintiff did not press “the application for cross-examination”.  In these circumstances the Court called upon the learned Chamber Judge for a report in relation to the proceedings.

The learned Chamber Judge’s report confirms that he explored with counsel the question of the utility of any cross-examination, but he considers it unlikely that he would have used the words “not necessary” in relation to it.  His Honour’s reconstruction of the matter, so far as it has been possible to respond to our request is encapsulated in the following statements–

“ It may well be that I would have discouraged the prospect of cross-examination, but I cannot now recall specifically disallowing it.  Had I been asked to rule on an application to cross examine, I would have done so, and it has been my practice to note that point in reasons for judgment - if I have thought it may subsequently assume significance.

I should add that there is no note in my Judge’s Notebook dealing with the point.”

It would seem that counsel for the plaintiff took the matter no further.  In particular he did not press for a ruling that the defendant not be allowed to read the affidavit without cross-examination;  and there was no application for adjournment to a date when the doctor would be available on the telephone.  Whilst one can understand counsel’s difficulty in the situation as it evolved, it must be remembered that counsel should insist upon a ruling if it is intended to suggest in due course that a procedure was denied to his client, or upon a ruling if it is intended to object in due course to the reception of evidence.

It seems to us that in the present case counsel, for reasons which no doubt seemed good at the time, simply desisted from pressing the point further, and that nothing more occurred than preliminary argument between bench and bar.  In particular no ruling was insisted upon or given.

We therefore consider that this point fails.

Point 2 - Erroneous finding that Dr Harvey-Sutton had no independent recollection

His Honour’s reasons contain the following statement–

“ I should perhaps have said earlier that the second defendant who is now almost seventy-nine years old, has no independent recollection of the consultations, as I see the matter, although he does have copies of ordinarily cryptic doctor’s notes in relation to them.  The larger part of the second defendant’s assertion about prejudice rested in this . . .”

It was not correct to suggest that Dr Harvey-Sutton has no independent recollection of the consultations.  Indeed the burden of his claim of prejudice was that he had a recollection of the consultations, but that it is now “much more hazy” than when the action commenced.  This is not a case where all the doctor can say is limited to his translation of existing notes and possibly an interpretation of them based upon usual practice.  In addition to the notes, copies of which are still available, a defence was delivered (which can only have been based upon instructions given by the doctor to his solicitors in 1982, interpreting the notes in the light of his then memory) in which the plaintiff’s allegations are dealt with responsively and in greater than usual detail.  Of further relevance is the fact that quite detailed answers to interrogatories were prepared and sworn to by Dr Harvey-Sutton in 1993 when he was aged seventy-four.  Of particular relevance are his answers numbers 20, 31, 32 and 35.  These relate to the all-important attendances of Dr Harvey-Sutton upon the plaintiff on 21 June, 24 June, 26 June and 27 June 1978.  The following are examples of such answers.  With respect to 21 June 1978 he recalls that

“ prior to the application of the plaster cast to the plaintiff’s left arm, the plaintiff’s left arm was significantly swollen and bruised.  It remained bruised and swollen for some days after the application of the cast.  I do not recall the first plaintiff complaining to me after the application of the cast that his left hand felt unnaturally cold.  Had he done so it was my practice to split the plaster with a vibratory plaster saw and separate the split edges 2-3mm.”

With respect to 24 June he states his belief that the plaintiff did visit him at Mount Isa on that occasion, and continues

“ I am not sure whether there was seepage of liquid through the plaster on the first plaintiff’s left upper arm.  If there was significant seepage I would have made a note of this.  As I made no note any seepage would have been minimal and in keeping with the plaintiff’s injury.”

He further states

“ I cannot recall whether the second plaintiff [i.e. the plaintiff’s mother] requested me to remove the plaster.”

and

“ I cannot recall whether I refused to remove the plaster.”

and

“ I believe that I did give the first plaintiff an antibiotic injection and a pain-killing injection on that date.”

With respect to 26 June he states

“ I believe on that date the first plaintiff’s left arm was swollen and discoloured, I cannot recall whether the arm was discharging a malodorous liquid.  It was my invariable practice to record the discharge of malodorous liquid from a cast such as the one in question and my notes make no mention of it.  I do not recall any such discharge.”

He continues that he believes that the plaintiff was complaining of pain but cannot recall whether the plaintiff’s mother requested him to remove the cast, or whether he refused to remove it.

With respect to 27 June he states that the plaintiff’s arm was badly swollen and discoloured, that it was discharging a malodorous liquid, that the plaintiff was complaining of pain and that his mother requested him to remove the plaster cast.  He states that he did remove it and that upon its removal he observed that the left arm had some small black patches between the elbow and the shoulder, that there was some skin left, and that a significant part of the arm between elbow and shoulder was raw but not gangrenous.  He further states that upon removal of the plaster cast a small part of the tissues of the left arm were removed, blisters drained and Phisohex and antibiotic powder applied to the arm with vas gauze dressing.

On the present state of the evidence it is not known whether the doctor’s memory when he prepared his answers to interrogatories with the aid of his notes was much worse than it was at the time of commencement of the action.  The only evidence on the question of fading memory is his assertion in his affidavit of June 1997 that “it is now much more hazy than it was at the time of commencement of the action”.  However no particularity or examples are given, and his affidavit probably does not take the matter much further than a judge would infer to be the case from mere lapse of time.

In this context the erroneous view of the learned Chamber Judge that Dr Harvey-Sutton had no independent recollection at all of the consultations is potentially quite significant.  It relates to the central issue in the determination, and is identified as one of the circumstances leading to his Honour’s conclusion that “those circumstances, together with the inevitable dimming of memories over those many years, combined to constitute a powerful case of prejudice in this situation.”

This then is a valid ground of complaint.  It will be further considered later when addressing the question whether his Honour’s discretion miscarried.

Point 3 - No sufficient prejudice shown to justify the order

The factual dispute is relatively narrow, and in the context of medical negligence cases the issues are relatively straight-forward.  Was the plaster applied too tightly, and was it left on when it should have been obvious that it ought to be removed?  Those primary issues may lead to questions such as what complaints were made of pain, and when did the additional symptoms manifest themselves and were they shown to the doctor.  Once the symptoms and the manner in which they were revealed (or not revealed) to the doctor are found, there is no suggestion of any complex medical issue concerning the fact that the plaster should have been removed.  The available medical evidence includes the following statement of Dr Graham Anderson:

“   I think it should be obvious, but never-the-less needs saying, that standard medical practice demands that in cases of injury where plaster splintage that encircles a limb has been used, persistence of severe pain must be followed by the immediate splitting of the plaster.  If the pain continues unabated the plaster must be removed.

  Splitting and removal of the plaster is even more urgent - a matter of hours rather than days - if there is any evidence of, including a suspicion of acute local pressure or vascular embarrassment.”

No complex conversations are alleged such as might occur when issues such as “informed consent” are raised, or such as commonly arise in cases involving commercial dealings.  Adequate evidence is available of the condition for which the plaintiff came to the doctor to be treated and the fact that by the time the plaster was removed the skin had rotted and serious necrosis had ensued.  These facts are contained in Mount Isa Hospital records.

Mr Clifford QC for the plaintiff/appellant submitted that the disputed facts are few and are not of a complex nature, and that the issue of prejudice from fading memories does not loom as large in such a case.  On the other hand Mr S.C. Williams QC for Dr Harvey-Sutton relied upon the following passage in his Honour’s reasons–

“ I appreciate that statements taken, certain admissions on proceedings, the second defendant’s consultation notes and aspects of the answers to interrogatories would help to reduce areas in which resort to unaided recollection would be important, but as my own experience suggests, in a medical negligence case like this there will be necessarily be such areas, and I am satisfied that in this particular case there are.  Matters of detail can become very significant in these cases and parties may not even realise that relevant detail has been overlooked.”

Mr Williams submitted that the areas where unaided recollection would be important were the conversations between the parties, and the time when the plaintiff complained significantly of pain, oedema and the discharge of malodorous fluid.

Discussion

The principles applicable in applications of this kind have been stated in many cases, sometimes with varying emphasis upon one or more of the factors that tend to be relevant in the determination of such cases.^[3]  Without attempting a comprehensive statement of principle, it may be taken that while the history of the legal proceedings and any explanation concerning the delay are always relevant, the provision of a satisfactory explanation for the delay is not a condition precedent to the continued survival of the action.  Usually the most important factor in the exercise of the discretion is the degree of prejudice that the defendant is likely to suffer as a result of the delay.  However individual factors cannot be satisfactorily weighed in isolation, and it is always necessary to identify all relevant factors affecting the particular case, and then determine on balance whether there is good reason for making the order.^[4]

In a recent decision of the High Court,^[5] concerning an extension of time under s. 31 of the Limitation of Actions Act 1974, recognition was given to the subtle ways in which a fair trial may be prejudiced by the passage of time.  As McHugh J remarked, “Sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties” and “What has been forgotten can rarely be shown.”  That decision, although concerned primarily with factual assessment and the application of a discretion, is now frequently referred to in applications of the present kind, applications under O. 90 r. 9, and indeed in any case where a party wishes to urge that it cannot now have a fair trial because too much time has passed.  It is our  impression that since that decision courts are more prone to uphold a submission of prejudice on this ground.  But there must be a question of degree in every case, and, as Walsh JA observed^[6]

“ Care should be taken to ensure that a discretionary power is not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors in the case which may point to the opposite conclusion.”

In the present case the factual misconception of the learned Judge (see point 2 above) suggests at least some overestimation of the degree of likely prejudice.  Whilst there must be some inevitable disadvantage, possibly to both parties, by reason of such delay, it does not follow that the relevant issues could not be fairly tried.  The facts and issues appear to be relatively simple, and there are firm anchor points including the medical records and the proven condition of the plaintiff upon his admission to hospital, both before and after his attendances upon Dr Harvey-Sutton.

The relative simplicity of the issues to be litigated was regarded as an influential factor in Hullock v Roderick above in which this Court allowed an appeal against a refusal to renew a writ after ten years.  Such an issue is regarded as analogous to those which arise under applications under O. 90 r. 9 and applications to dismiss.^[7]  Quite apart from authority it will usually be the case that the more complex the issues and unavailability of contemporaneous documents and relatively early statements of evidence, the greater the prejudice from delay.  Conversely the simpler the issue and the greater the availability of contemporary material and relatively fresh statements, the less the perceived prejudice.

In our view the overall interests of justice would be better served by allowing this case to be determined at trial than by procedural extinction at the last moment.

We have hesitated in reaching this conclusion and are conscious that this is an appeal from what is called the exercise of a discretion, and of the need to apply the principles recognised in House v The King (1936) 55 CLR at 504-505 and Gronow v Gronow (1979) 144 CLR 513.  The learned primary Judge’s misconception concerning the extent of lost recollection by Dr Harvey-Sutton concerns a matter central to the exercise and makes it necessary to review the determination looking at the matter as a whole.  Such a review must include the circumstances that the plaintiff was not in default of any of the rules of court by that time, that the only party in default by the time the order was made was the defendant, that the matter was ready for trial, and the nature of the issues in dispute.  We do not think that the prejudice which must necessarily be recognised in this case as flowing from such a long delay was sufficient to justify dismissal of the action.

The appeal should be allowed with costs.  The order below should be set aside and replaced with an order dismissing the defendant’s summons with costs.