SUPREME COURT OF QUEENSLAND

[1]  WHITE JA:  On 3 September 2010 the appellant’s proceedings against the four defendants were struck out for want of prosecution in the Supreme Court at Townsville.  Leave was given to make submissions about costs and in a separate decision, on 19 October 2010, the court ordered the appellant to pay the third and fourth defendants’ costs and made no order for costs in favour of the first defendant.  The second defendant had not participated in the proceedings but supported the strike out applications.  The appellant appeals only the order striking out her proceedings against the first defendant.

Summary

[2] The appellant’s right leg was amputated below the knee in the Townsville General Hospital on 22 January 2001 after her right foot had become irremedially infected.  The appellant attributed this outcome to the defendants (now confined to the first defendant) who had allegedly provided inadequate medical services to arrest the progress of the infection prior to her admission to the Townsville General Hospital from Mt Isa.

[3] The first defendant, the State of Queensland (“the State”), is responsible for the operation of the Mt Isa Base Hospital.  It was represented throughout by private solicitors, not the Crown Solicitor. 

[4] The second defendant was the Injilinji Aboriginal and Torres Strait Islanders Corporation for Children and Youth Services, incorporated pursuant to the Aboriginal Councils and Associations Act 1976 (Cth), which conducted the Yapatjarra Medical Service at Mt Isa.  It had been served with the applications to strike out by the State and the third and fourth defendants.  It did not appear on the hearing but the primary judge was told it supported the applications.

[5] The third and fourth defendants were registered medical practitioners employed by the Yapatjarra Medical Service.

[6] The appellant, an indigenous woman born in 1951, was a type 2 diabetic, a condition known to all of the defendants (or their relevant employees).  She was treated by the defendants on various dates relevant to these proceedings between October 2000 and January 2001.  She first consulted solicitors in July 2002.  Between January and October 2003 Notices of Claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) (“the PIPA”) were delivered to the defendants.  Although the appellant’s cause of action against the defendants crystallised when her leg was amputated on 22 January 2001, it was uncontroversial that her claim was governed by the PIPA. 

[7] On 4 December 2003 leave was given in the Supreme Court at Townsville to issue proceedings to preserve the limitation period pursuant to s 43 of the PIPA.  An order staying those proceedings until the pre-court proceedings were completed was made.  The appellant’s claim and statement of claim were filed on 5 December 2003.  In separate proceedings the third and fourth defendants sued the State for indemnity and contribution.  Those proceedings are of no concern on this appeal.

[8] The PIPA processes continued from 2003 until April 2010 when it was accepted the stay ceased to have effect after the mandatory final offers had been exchanged.  The appellant’s claim and statement of claim were served formally (they had been provided to the defendants earlier) in May and June 2010 respectively. 

[9] The State filed an application seeking orders dismissing the appellant’s proceedings pursuant to the Uniform Civil Procedure Rules and the inherent jurisdiction of the court on 11 June 2010.  The third and fourth defendants filed their application on 18 August 2010.  The applications were heard on together on 27 August 2010.  It was not contended that there had been relevant delay by the appellant after the PIPA processes had concluded.  Rather, the assertion was that the delay over the whole period was such that the defendants were prejudiced to an extent which precluded them having a fair trial.  Since there had been no breach of the rules[1] the primary judge dealt with the applications in the inherent jurisdiction.  There is no argument that his Honour was in error in so doing. 

[10]  The applicants contended below that the claim issued on 5 December 2003 required, notwithstanding the stay, to have been renewed pursuant to r 24.  In that circumstance it was contended the service of the claim and statement of claim after the conclusion of the PIPA proceedings was of no effect.  The primary judge did not accept that contention holding that the rules and the PIPA provisions needed to be read harmoniously so that the stay operated for all purposes and the claim was maintained until the conclusion of the PIPA proceedings.  There is no cross-appeal from that finding.

[11]  The primary judge concluded that because there was actual and presumed prejudice due to the delay by the appellant in proceeding against the defendants which could not be remedied, her proceedings should be struck out.

Grounds of appeal

[12]  The appellant accepts that her appeal is from an order made in the exercise of a discretion to which the principles stated in House v The King[2] apply.  To set aside such an order, it is necessary to identify some error of principle or other error such as taking into account irrelevant matters, not taking into account relevant ones or acting on a mistake of fact, or making an order that suggests an unidentifiable error because it is plainly unjust on the facts.[3]  The appellant contends that the primary judge erred in the exercise of that discretion in that:

●  he found actual prejudice arising out of lack of recollection on the part of the a medical practitioner who had treated the appellant (Dr Hayward) which was unsupported by the evidence;

●  in finding that there was no record of certain hospital employees being currently employed when the proper enquiry was whether they could be located or were unavailable to give evidence at a trial;

●  in failing to give proper weight to the failure of the State to seek an earlier remedy pursuant to s 35 of the PIPA and thereby acquiesced in the slow progress of the appellant’s claim; and

●  in failing to take into account the State’s failure to give proper disclosure of documents and thereby impeded the appellant’s ability to progress her claim.

The appellant did not pursue at the hearing of the appeal Grounds 2.2(e) and (f).[4]

Chronology

[13]  Rather than consider, objectively, what the Yapatjarra Medical Service and Mt Isa Base Hospital records reveal, initially, it is useful to consider how the appellant presented her claim to the State.  In her Notice of Claim pursuant to the PIPA dated 7 January 2003 the appellant described the incident in respect of which she made her claim: 

“The claimant attended Mt Isa Base Hospital throughout 2000 for treatment relating to a back condition.  In some of the consultations mention was made in the clinical notes of problems experienced by the claimant with her diabetic condition.  On 29 and 30 October 2000 the claimant presented with a rash and on 1 December 2000 she presented with ‘spots’ underneath both feet.  She gave a history of having stepped in some spilt bleach which caused the spots to appear.  On 20 December 2000 she presented to the hospital and was admitted.  During her admission some sort of minor procedure involving a scalpel or needle was carried out in the region of her right heel.  She subsequently attended the hospital as an outpatient for dressings to the right foot on 30 December 2000 and on 1 and 2 January 2001.  On 5 January 2001 she attended the emergency department and on 10 January 2001 attended for review and was prescribed anti-biotics.  On 12 January 2001 she was admitted and subsequently underwent debridements which failed to halt the progress of the infection of her right foot.  She was transferred to Townsville General Hospital where she underwent (unsuccessfully) hyperbaric treatment before having her right leg amputated below the knee on 23 January 2001.”[5]

[14]  In response to the question (in the Form) whom did she believe was the person who caused the incident and why, the appellant identified the “Medical and nursing staff of Mt Isa Base Hospital” and gave as her reasons:

“Failing to diagnose her condition, failing to recognise the severity or potential severity of the condition in light of the claimant’s known diabetic status, failing to initiate drug therapy or appropriate drug therapy in time to control the infection in the claimant’s right foot and failing to treat the infection or refer the claimant for treatment at an appropriate stage.”[6]

[15]  The appellant had failed to answer many of the questions in the Notice of Claim Form.  On 4 February 2003 the solicitors for the State responded, pursuant to s 12 of the PIPA, noting that the State was a proper respondent but the Notice of Claim was not compliant because necessary questions had not been answered and required answers on statutory declaration.  The State, through its solicitors, wrote a second letter in the same terms on 3 April 2003.  The appellant’s solicitors responded about three weeks later with the information that the appellant was in intensive care in the Townsville General Hospital.  His next communication was 23 September 2003. He noted that the appellant had been admitted to the Townsville General Hospital with life threatening heart problems; had undergone heart surgery; was in hospital for six to seven weeks; and had resumed contact with her solicitor on 8 September 2003.  The solicitor enclosed the appellant’s statutory declaration and a copy of the Mt Isa Base Hospital records.  The solicitor noted that a PIPA Notice of Claim had also been given to the Yapatjarra Medical Service.

[16]  The appellant’s statutory declaration entitled “Supplementary to Notice of Claim” declared, in response to question 13 on the Notice of Claim seeking the details of the persons who had caused the incident,

“… I say that I do not know the details of the person/s who caused the incident.  A copy of the Mount Isa Hospital records containing such information was attached to my notice of claim.  Those records were then sent back to my solicitors by Crown Law on 7 January 2003 (reference …) and then returned by my solicitors to Crown Law on 9 January 2003.  I attach hereto a further copy of those records.”[7]

In relation to question 19 which required a description of the treatment the appellant claimed caused her injury, she declared it was “the lack of treatment” as set out in her initial claim which was the substance of her claim.

[17]  By letter dated 22 October 2003 the State’s solicitor accepted that the Notice was now a complying Notice of Claim.  The writer added:

“Pursuant to section 22(2) of the Act we require that you provide us with a report from a doctor setting out an opinion regarding the nature and extent of the personal injury allegedly suffered by your client and the causal relationship between the incident complained of and the personal injury alleged to have arisen.”[8]

That provision in the PIPA requires a claimant, if the claim is a health care claim, to give a respondent a single report from a doctor with appropriate qualifications and experience in the relevant field that includes an opinion regarding the nature and extent of the personal injury alleged to have been suffered and the causal relationship between the incident and the injury.  Despite numerous requests over the ensuing years, a medical report (comprising two reports from Dr J Niesche dated 10 April 2006 and 21 August 2007) was not provided to the State until April 2008.

[18]  The Mt Isa Base Hospital medical records (and the Yapatjarra Medical Service records) relating to the appellant which are in the Appeal Record reveal that she had had numerous attendances for many other medical matters during 2000 and earlier.  She was treated, according to those records, by numerous medical officers, consultants and nursing staff. 

[19]  The medical records from the Yapatjarra Medical Service (where the appellant was also seen for a number of medical conditions) reveal that she attended on 8 December 2000 complaining of pain in her left ankle, painful toes and fingers due to arthritis “also laceration feet from glass 2/52 ago – needs dressing”.[9]  On 18 December 2000 the appellant attended at the Yapatjarra Medical Service complaining of an infected right foot.  On 19 December the entry describes her as suffering from cellulitis to her right foot secondary to a wound from a broken bottle. 

[20]  The appellant attended at the Emergency Department of the Mt Isa Base Hospital on 1 and 12 December 2000 complaining of pain in her hands and back.  There was no notation that she sought treatment for her right foot.  She was admitted to that hospital on 19 December 2000[10] having reported that she stood on glass in the kitchen on or about 4 December 2000.  She underwent a debridement of her right foot and was treated with intravenous antibiotics and discharged home on 21 December 2000.  The appellant was readmitted on 24 December.  A swab taken from the wound in her right foot grew enterococcus faecalis.  She was again treated with intravenous antibiotics and discharged home on 29 December 2000. 

[21]  The appellant attended at the Emergency Department of the Mt Isa Base Hospital in early January 2001.  On 5 January her right foot wound swab grew staphylococcus aureus.  The appellant was readmitted on 12 January for debridement of her right foot and underwent surgery on 13, 15 and 17 January.  On 17 January she was transferred to the Townsville General Hospital.  The amputation occurred on 22 January.  The appellant was discharged at the beginning of April 2001.

[22]  As can be seen, the appellant’s account in her Notice of Claim, did not reflect closely the hospital records.

[23]  After receiving and considering the extensive records of the Mt Isa Base Hospital (341 pages) and the Townsville General Hospital (590 pages) the State noted, in a letter to the appellant’s solicitors dated 31 December 2003, that the first entry concerning the appellant’s right foot appeared on 18 December 2000 in the Yapatjarra Medical Service records.  Again an appropriate medical report to comply with s 22(2) was requested.  Information was sought from the appellant pursuant to s 22(1)(b) of the PIPA. 

[24]  The appellant responded with a statutory declaration dated 2 March 2004. In response to the question whether she had sought treatment for “the laceration wound to her right foot when she attended Mount Isa Base Hospital on 1/12/00 and 12/12/00?” as recorded in the records of the hospital, the appellant declared:

“I did not ever have a laceration wound on my right foot when I attended Mount Isa Base Hospital at any time.  When I attended Mount Isa Base Hospital on 1/12/00 and 12/12/00 it was not in connection with the condition of my right foot.”[11]

She was asked to say when the wound to her right foot became infected and answered:

“I do not say that any wound in my right foot became infected but that an infection of some sort developed in the heel of my right foot on or about 7 December 2000.”[12]

In response to the question what signs and symptoms were present to cause the claimant to believe that the foot wound was infected, the appellant answered:

“I did not have an infected wound in my right foot.  However, on or about 7 December 2000 when I consulted Dr Noel Hayman at Mount Isa Base Hospital, there was a dark pink roughly circular area about the size of a ten cent piece on the underneath side of my right heel in approximately the middle.  It was sore to touch and appeared to be inflamed.  There was an area of inflammation running in a line from the roughly circular area stretching towards the inside edge of my heel.”[13]

This was the first mention of the “elusive” consultation on 7 December 2000.

[25]  On 9 March 2004 the State’s solicitors expressed concern that the factual issues were not clear.  The appellant had denied suffering a laceration wound to her right foot yet the Yapatjarra Medical Service records had her reporting that she had suffered a laceration injury to her feet in late November 2000 and attending for dressing the laceration on 8 December.  On 12 December she had complained of an infected right foot.  The writer noted that on 19 December the appellant was recorded as attending the Yapatjarra Medical Service with cellulitis to the right foot secondary to a wound from a broken bottle.  The appellant was recorded as attending the Mt Isa Base Hospital on 19 December 2000 giving a history of having stood on some glass in the kitchen on 4 December 2000.  The writer continued:

  “Your client’s statement that she never had a laceration wound to her right foot is contrary to all of the evidence in the medical records.

…

Your client alleges that she consulted Dr Noel Hayman at Mt Isa Base Hospital on 7 December 2000.  The medical chart records that your client attended the Emergency Department at Mt Isa Hospital on 1/12/2000 and 12/12/2000 but there is no record of her having attended on 7/12/2000.  If you maintain that this consultation occurred, please refer us to the relevant entry in the medical chart in order that we can investigate this allegation.”[14]

The writer again pressed for an expert medical opinion in support of the claim.

[26]  On 13 April 2004 the appellant’s solicitors responded that the appellant had instructed that she had not had a laceration wound to her right foot.  To support her assertion that she had attended the Mt Isa Base Hospital on 7 December 2000 the appellant’s solicitors continued:

“We enclose a copy of a medical certificate from the records of Mount Isa Base Hospital.  The certificate is by Dr. Noel Hayman and certifies that our client was seen at the Mount Isa Base Hospital as an out-patient on 7 December 2000 suffering from ‘foot infection’.  There may be no clinical note of our client having attended at the Mount Isa Base Hospital on 7 December 2000 but our client’s instructions are that she did attend on that date and the medical certificate corroborates it.

We are instructed that our client’s presenting signs and symptoms were that she felt unwell, had soreness under her right heel, exhibited a dark pink circular area about the size of a ten cent piece in approximately the middle of her right heel which was sore to touch and appeared to be inflamed with a line of inflammation running from the circular area towards the inside edge of her heel.  In addition, there were also four or five small, whitish-coloured, blotchy marks about the size of small buttons underneath both her feet.”[15]

The solicitor suggested that the hospital records were unreliable on this matter.  He added that the appellant was not in a position to provide expert evidence.

[27]  The certificate itself is far from clear.  It contains identifying letters and numbers associated with the appellant and her name.  A handwritten notation states that the appellant was admitted as an “IN” Patient on “7/12/00” although the printed “IN” has, immediately next to the handwritten “IN”, been crossed out.  The subject was described as suffering from a “foot infection”, was totally incapacitated for work, was still a patient on “10/1/01”; was to attend outpatients and would be unfit for duty for one month.  The signature is not readily decipherable but the first three letters of the surname appear to be “Hay…”.  It is dated 10 January 2001.  The appellant had ceased working in October or November 2000 and had told the occupational therapist in 2009 that she was considering options then open to her of work in Orange, New South Wales or moving to Townsville.[16]  The reference to work is thus puzzling, as was the reference to being an inpatient.

[28]  A great deal was made of the identity of the medical practitioner who had signed the certificate and is an aspect of Ground 2.2(d).  The certificate is the only documentary evidence that the appellant had consulted at the Mt Isa Base Hospital on 7 December 2000.  It is nearly two weeks earlier than the earliest notation in the hospital records of complaint about her right foot.  The Mt Isa Base Hospital records show the appellant attending at the Emergency Department on 10 January 2001.  The time of her attendance is 8.21(am) and identifies the doctor who saw her at 9.00(am) as Dr “Hayward”.[17]  The notation refers to pain in the appellant’s right foot due to a chronic diabetic ulcer; that she was having regular dressings; that swabs were taken on 5 January 2001 and two infections – staphylococcus aureus and enterococcus faecalis were identified.  The appellant was noted to be sensitive to two antibiotics.  The foot had been dressed that day and so the doctor had not seen it - “to be seen at next presentation”.  The treatment was Amoxycillin, Flucloxacillin and Panadeine Forte.  The appellant was to be seen at outpatients on the next Friday by Dr Gallery.  There is no mention of a medical certificate.

[29]  The State’s solicitors made enquiries about this certificate from the Mt Isa Health Service administrators which brought the following response by letter dated 13 May 2004:

“In relation to the medical certificate that the claimant is relying on as evidence that she attended Mount Isa Hospital on 7 December 2000, the following comments were [sic] offered:

1.It appears that this was signed by a Dr Nick Hayward, not Noel Hayman.  Noel Hayman has not worked at Mount Isa Hospital.

2.Dr Hayward has signed the medical certificate on the 10 January 2001 and indicated that the patient was admitted as an inpatient to Mount Isa Hospital on 7 December 2000 and was still an inpatient when he saw her.  Records are being checked at the moment as no record, either physical or electronic, can be located that indicates that Mrs Lekau was an inpatient on 7 December.  Further information will be provided to you as soon as possible.”[18]

A “Patient Presentation Search Screen” showed the appellant’s recorded presentations at the Mt Isa Base Hospital relevantly between 29 October 2000 and 10 January 2001 as on 1, 12, 19, 23, 24 and 30 December 2000 and 1, 5 and 10 January 2001.  The appellant had several admissions as an inpatient from 19 December 2000.

[30]  By letter dated 11 January 2005 the State’s solicitors informed the appellant’s solicitors that Noel Hayman was not employed at the Mt Isa Base Hospital and that investigations revealed that no consultation had occurred on 7 December 2000.[19]

[31] Dr Noel Hayman was located and on 7 April 2005 he was provided with a copy of the medical certificate.  By letter dated 13 April 2005 he said he had never worked at the Mt Isa Base Hospital and had not signed the medical certificate.  The State’s solicitors located Dr Nicholas Hayward.  He responded that he was employed at the Mt Isa Base Hospital at the relevant time; that the signature on the certificate looked “very like” his; and added:

“I note that you say there are no records of her admission to the hospital but from the certificate it appears possible that she was treated as an outpatient and seen only in the emergency dept.  I believe everyone we saw there was recorded and I would not have written the medical certificate if I did not have any notes.  I cannot remember writing the certificate.  I spent most of my time at Mount Isa working in the emergency dept but did spend some time on the medical ward so could have written it from there.  It is true the date could have been misprinted.  I could not make out the medical condition she was suffering from as the fax quality was not great.”[20]

That communication was sent by email with an address at Bradford in the United Kingdom.  In August 2010, the State’s solicitors, contemplating the application to strike out, made contact with Dr Hayward again.  He responded merely:

“Please contact again if you need any more information although I am not sure what I can add to the initial correspondence.”

[32]  The appellant’s representatives are rightly critical of the State in failing to pass on the information that the medical practitioner who gave the certificate on 10 January 2001 was Dr Nicholas Hayward not Dr Noel Hayman.  The primary judge described the breach of the State’s obligations to disclose information under the PIPA as “serious” and was the principal reason why his Honour did not award the State its costs on the application.[21]  This is discussed further in respect to Ground 2.2(d). 

[33]  The State’s solicitors sought a medical report pursuant to s 22(2) of PIPA from the appellant’s solicitors on seven occasions between October 2003 and January 2008.  Instructions had been accepted by the solicitors on the basis that the appellant would pay outlays as and when they were incurred.  The appellant’s solicitors deposed that the progress in the matter was “to some degree”[22] bedevilled by the inability of the appellant to fund outlays for medical reports.  The firm first asked for payment for a report from Dr  Niesche on 29 October 2003 but the appellant was unable to do so until more than two years later on 8 February 2006.  The solicitor’s chronology also reveals the significant difficulties which he had in obtaining another report from an expert in infectious diseases when Dr Niesche’s report was not sufficiently supportive of a causal link between the alleged lack of treatment and the amputation.  The appellant was also out of contact with her solicitors for some lengthy periods from time to time.

[34]  The solicitor’s chronology notes that in May 2009 an expert opinion was sought but it was not until the end of July 2009 that the solicitor was contacted and advised that the specialist selected was not properly qualified to give an opinion.  Another expert was recommended from whom an opinion was sought.  He was unavailable until late March 2010.  Dr J McCormack was identified but he could not respond until January 2010.  The solicitor was informed in November 2009 that Dr McCormack was accepting no further medico-legal referrals until after Christmas.

[35]  Meanwhile contact was made with the defendants about a settlement conference under the PIPA regime which was eventually dispensed with.  Mandatory final offers were made in March and April 2010.

[36]  After several enquiries the appellant’s solicitors were advised by Dr McCormack’s rooms in May 2010 that he was away sick and would not return until June.  He was again contacted in June and some progress was apparently made.  In August he conferred with the appellant and on 25 August 2010 his report was received and provided to all the defendants, two days before the hearing of the applications.

The reports of Dr J Niesche

[37]  Dr Niesche’s first report was dated 10 April 2006 and was based mainly on the records of the Yapatjarra Medical Service and the Mt Isa Base Hospital.  He did not examine the appellant.  Dr Niesche’s report proceeded on the understanding (from the records) that the appellant presented at the Yapatjarra Medical Service on 8 December 2000 complaining, amongst other things, of penetrating wounds to her left foot from glass fragments; and on the same day at the Mt Isa Base Hospital with pain in her left ankle.  Dr Niesche described the next visit to the Yapatjarra Medical Service on 11 December with no complaints about the right foot noted.  He referred to a visit to Yapatjarra Medical Service on 18 December noting cellulitis to the right foot secondary to a wound from a broken bottle; an admission to the surgical ward of the Mt Isa Base Hospital on 20 December with multiple foot ulcers after stepping on glass 2-3 weeks previously; and reviewed on 2 January 2001.

[38]  Dr Niesche wrote “She did not attend for follow-up appointment on 10.1.01”[23] but was admitted again on 12 January 2001 from the outpatient’s department with worsening pain from the discharging ulcer in her right foot.[24]  Dr Niesche was asked a number of questions by the appellant’s solicitors about the appropriateness and timeliness of her treatment.  He noted that the treatment on 8 December at the Mt Isa Base Hospital[25] was appropriate and the antibiotics administered promptly and efficiently.  He also considered that the timing of the transfer to the Townsville Hospital was within reasonable time limits “as aggressive debridement had been carried out in Mount Isa Hospital [and] it is unlikely that the outcome would have been different if she had been transferred to Townsville Hospital earlier.”[26] 

[39]  Dr Niesche was asked for a supplementary report based on further documents including the medical certificate dated “10 or 16/1/01”[27] and the appellant’s instructions that she attended the Mt Isa Base Hospital on 7 December 2000 with soreness under her right heel but for which she received no treatment.  He noted that there was no recorded evidence of treatment on 7 December or of infection being present on her visit on 8 December to the Yapatjarra Medical Service.  Dr Niesche was instructed to assume that the appellant did not give a history of having stepped on broken glass and did not have lacerations to either foot and was not given antibiotics nor was her foot dressed on 8 December. 

[40]  On those assumptions Dr Niesche concluded:

“Under the assumption that your client’s instructions are correct and there was inflammation in the right heel as described in your instructions, antibiotics should have commenced on 7/12/00, with regular follow-up and review from that date.  From the description in your client’s instructions it is unlikely that debridement would have been necessary on 7/12/00.  You ask on the balance of probabilities would the course of your client’s condition have been different.  It is possible with the administration of antibiotics starting on 7/12/00 that the inflammation may have settled without abscess formation and without the need for debridement and later subsequent amputation.  However, this is by no means certain as it is common for infection in the foot associated with diabetic vascular disease and neuropathy to progress in spite of antibiotic administration leading to repeated extensive debridement and later amputation.”[28]

The State’s solicitors responded by letter dated 11 April 2008 asserting that Dr Niesche’s reports did not support the PIPA claim or the Supreme Court claim and was not compliant with s 22(2)’s requirement in that it did not describe the nature and extent of the personal injury suffered and the causal link between the incident complaint of and the injury.[29]

Dr McCormack’s report[30]

[41]  Dr McCormack had been provided with a letter of instructions, the statement of claim, the medical records from the Yapatjarra Medical Service, Mt Isa Base Hospital and the Townsville General Hospital.  He consulted with the appellant’s lawyers but did not examine the appellant.[31]  Dr McCormack concluded that the appellant:

“… was a poorly controlled diabetic with what is commonly and generically described as a diabetic foot infection.  Such infections are notorious for starting from relatively minor beginnings but can rampage quickly.  The ability of such infections to proliferate rapidly is related to several factors; 1) the diabetes itself, particularly if it is poorly controlled, 2) the presence of peripheral neuropathy, which alters the early warning system of pain, 3) the propensity for many different organisms to be involved in the process.  When such infections gather momentum it can be very difficult to control them, management requires vigorous and appropriate intravenous antibiotics accompanied by extensive debridement of the necrotic (dead) tissue.  Amputation is indicated if these measures cannot control the infection and patients can readily die from the septic consequences of such an infection.”[32]

Dr McCormack continued:

“On perusal of the notes regarding [the appellant] I can identify three areas where I feel [the appellant’s] management was suboptimal and where alternative management may have made a difference to her outcome.  The absence of clinical records in many instances is regrettable.  Although her right foot was the one involved some of the earlier notes refer to her left foot, I am assuming that to be an error.”

[42]  Dr McCormack suggested that the presence of “Enterococcus faecalis” on the swab of 24 December 2000 may have gone “unnoticed” and noted there were a limited number of drugs to which that organism was sensitive including ampicillin, amoxicillin and vancomycin.  He suggested that none of those drugs were commenced until 5 January 2001.  In fact, as was demonstrated to the primary judge, the hospital records show that ampicillin and flucloxacillin were commenced by 26 December 2000.[33]  Dr McCormack opined that the dose of cephalothin at transfer on 17 January 2001 to the Townsville General Hospital was too low for an infection of such seriousness and the appellant’s weight.  Another criticism concerned the radiological investigation of the appellant’s right foot.  Dr McCormack observed that x-rays were insensitive at picking up evidence of osteomyelitis or of delineating the extent of soft tissue infection.  An MRI, if available, would have been the investigation of choice and a CT scan would have been preferable to x-rays. 

[43]  Dr McCormack concluded that the appellant’s management over the Christmas and New Year period was “suboptimal” “although the paucity of clinical notes make it difficult to assess this”.  Finally, Dr McCormack concluded:[34]

“I appreciate that it is easy to be wise in retrospect about clinical issues however I believe if more vigorous management including investigation, more appropriate and higher dose antibiotics and earlier debridement were carried out prior to [the appellant’s] admission on the 12th January 2001 a below knee amputation may not have been required.  My perusal of her case suggests that had these measures been carried out in a more timely manner it is more likely than not that [the appellant] would not have required amputation.”

[44]  Dr McCormack had been asked to make a number of assumptions.[35]  One of those assumptions was that on 7 December, feeling unwell and with an area of inflammation on the inside edge of her right heel, the appellant had attended at the Mt Isa Base Hospital for medical advice and, if necessary, treatment.  The following appears:

“She was seen by a doctor who examined the underside of her right foot but unfortunately was called away for an emergency admission and did not return.  [The appellant] left the hospital after a couple of hours without receiving any treatment.  There is no clinical note for this attendance…”[36]

[45]  This assumed fact is taken up in later[37] - on 10 January 2001 the appellant saw Dr Hayward “the same doctor whom she consulted on 7 December 2000”,

“Dr Hayward issued Barbara with a medical certificate certifying that she had been seen as an outpatient on 7 December 2000 at that time suffering from a foot infection.”[38]

Another assumption was that when the appellant presented to the Yapatjarra Medical Service on 8 December 2000 she told Dr Walker (of that Service) that she was “scared” as a diabetic that she might get a serious infection in her right foot. 

The decision below

[46]  The following summary of the primary judge’s decision, accepted by the State as accurate, appears in counsel for the appellant’s appeal outline:

“After a detailed recitation of the factual background, and an express acknowledgement of the decision of this court in Basha v Basha and the ‘relevant considerations’ identified in Tyler v Custom Credit Corporation Limited, his Honour –

(a)ruled that the court was entitled to consider the matter by reference to the whole history, including the steps taken or not taken prior to the giving of notice and those taken since the giving of notice …

(b)commented upon the significance of an absence from the Mt Isa Hospital clinical records of any mention of the appellant’s asserted attendance, and complaint of symptoms, at the hospital on 7 December, 2000,[39] a circumstance which he described as something ‘which would plainly have a central importance to the claim against the first defendant’ …

(c)observed that a significant contributor to the appellant’s delays had been her impecuniosity …

(d)described the evidence (subject to an incorrect factual assumption having been drawn by a reporting expert commissioned on the appellant’s behalf) as being such as to provide a basis for the conclusion that the appellant had reasonable prospects of success, though by inference only as against the respondent …

(e)balanced that observation by pointing to the ‘substantial’, ‘gross’ delays in progressing the matter, probably the most notable of which, he said, was the failure to provide Dr Niesche’s expert reports for a significant time …

(f)expressed the view that, whilst the particulars of negligence in the statement of claim were sufficiently broad to encompass the breaches of duty identified in his report by Dr McCormack, that report raised ‘new allegations’…

(g)ruled that not only had there been prejudice of the kind identified in Brisbane South Regional Health Authority v Taylor[40] but that the respondent had also suffered actual prejudice…

(h)ordered, ‘not without some sympathy for the plaintiff’, that the proceeding be dismissed …”[41]

[47]  To that analysis the State’s counsel added that the primary judge also considered that:

●  no application had been made by the State under s 35 of the PIPA even thought there had been lengthy delay and threats to make such an application;

●  the reports of Dr Niesche had been obtained late, disclosed later after much prompting; did not support the appellant’s case in Dr Niesche’s first report and “somewhat more favourable to the plaintiff” in the supplementary report;

●  the report of Dr McCormack was not sought until April 2009; delivered in August 2010; and entirely new in terms of the criticisms it made; and wrong on a factual level as to one major aspect;

●  with respect to delay, the relevant treatment took place in December 2000 – January 2001; the proceedings were instituted only as the limitation period was expiring in December 2003; no medical report was provided to support the appellant’s claim pursuant to s 22 of the PIPA for four and a half years despite numerous requests; and

●  nearly 10 years had passed since the relevant event.

Grounds of appeal

(i)Ground 2.2(a):  a finding of actual prejudice from DrHayward’s lack  of recollection

[48]  The appellant contends that his Honour erred in reaching this conclusion of actual prejudice because Dr Hayward’s lack of recollection was limited to the writing of a certificate or, alternatively, he would have had a lack of recollection from an early time in any event.  Dr Hayward’s response on 18 April 2005 has been set out in full above.[42]  He does offer an explanation that the date could have been misprinted because he asserts a belief that everyone seen at the hospital was recorded and he would not have written the medical certificate without notes.  When he responded again on 16 August 2010[43] he expressed his doubt that he could add to what he had already said.  As the appellant’s counsel contended, it may well be that Dr Hayward would have had no recollection of the appellant even when the Notice of Claim was first given.  Had the appellant proceeded with reasonable expedition then that lack of recollection would have been an occurrence not unfamiliar in litigation where a witness does something regularly and has no independent recollection.  That may operate to the disadvantage of either party but will not preclude a trial being had because there has been no disentitling conduct. 

[49]  The assertion of an attendance on 7 December 2000 was not raised until the statutory declaration on 2 March 2004.  That assertion was in conflict with the description of the incident given by the applicant in the Notice of Claim and was not in any hospital record.  It was not until over three years from the alleged attendance that it was raised.   By this stage the observations of McHugh J in Brisbane South Regional Health Authority v Taylor[44] would have likely been apt:

“As the United States Supreme Court pointed out in Barker v Wingo,[45] ‘what has been forgotten can rarely be shown’.  So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed.  Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.”

[50]  As an aspect of this ground of appeal the appellant contends that in exercising his discretion the primary judge did not give sufficient weight to the failure to disclose the documents concerning its enquiries about the identity of the doctor who had signed the certificate.  Had it done so, the appellant contends, she would not have devoted so much fruitless time to this matter.  The chronology of the appellant’s solicitors does not do more than indicate that over a lengthy period during which the appellant was either out of touch with her solicitors or was unable to fund the necessary outlays, from time to time there was an examination of the hospital records and the taking of instructions from the appellant about what was contained in those records.  This would have been essential for an understanding of the whole of her case not merely to search for a “Doctor Noel Hayman” who had signed, it was thought, the certificate on 10 January 2001.  The primary judge saw the chronology in this way.

[51]  The primary judge did not err in concluding that there was some actual prejudice.

(ii)Ground 2.2(b):  unavailability of other hospital employees

[52]  The primary judge mentioned, as an aspect of prejudice, that there was no record of any of a list of persons presumed to have been employed and whose names appeared in the records of the hospital at the relevant times.  His Honour said:

“A case of this kind would by its very nature turn to a significant degree upon the contemporary records, but as was pointed out [in] Tricon Industries and Abel Lemon & Co Proprietary Limited Number 2 [1998] 2 Queensland Reports 551, there are inherent difficulties in relying upon contemporaneous records where witnesses have no independent memory of the matters contained therein.”[46]

[53]  The appellant contends that the evidence did not lead to that conclusion and the appropriate enquiry was whether the employees could be located or were unavailable to give evidence at a trial.  The appellant further complains that the enquiries that were made were over seven and a half years after the appellant made her claim; and that during the lengthy PIPA process the State took no steps to seek statements or proofs of evidence from any relevant staff member at the Mt Isa Base Hospital.  The appellant complains that by doing nothing the State has been able to rely upon prejudice due to the passage of time.  In a sense, this misstates the circumstances.  The appellant had not provided a medical report as required by s 22(2) which supported her claim; she had contended, contrary to her initial claim, that certain recorded events had not occurred; and had asserted a consultation had partially taken place which was not recorded.  Although not revealed, there was the response from Dr Hayward that he had no recollection beyond identifying his signature and that the date might have been a misprint.  There was, it might be thought, no imperative for the State to trawl through the many staff and former staff who might recall the appellant’s infected right foot.  The prejudice of the kind to which his Honour referred when mentioning these employees was of the kind referred to by Atkinson J in Tyler v Custom Credit Corporation Limited:[47]

“The prejudice caused by the passage of time may be as insidious as it is subtle in that the parties cannot demonstrate what it is that they have forgotten.”

Where “there is delay the whole quality of justice deteriorates”.[48] 

[54]  It was open to the primary judge, in the exercise of his discretion, to conclude that given the slow pace of the PIPA proceedings and the contradictory statements by the appellant, not only about the 7 December attendance but also her explanation of what she actually told the treating medical staff about treading on glass, that recall would be important and would not be forthcoming.  It did not require those staff to be searched for and, if found, asked if they could remember to conclude, as his Honour did that their unknown whereabouts and recollection was a likely source of prejudice.  There is no error demonstrated.

(iii)Ground 2.2(c) – failure to use s35 of the PIPA

[55]  The appellant complains that the primary judge failed to give proper weight to the failure by the State to utilise s 35 of the PIPA concerning the appellant’s delay in providing a medical report.  As the primary judge observed when considering this submission, s 35 empowers the court to order a defaulting party to take specific action to remedy the default within a particular time and to make consequential orders including orders as to costs if that does not occur.  His Honour noted that threats were made by the State from time to time, but an application was not made.  His Honour observed:[49]

“This is not an irrelevant consideration but it can never be overlooked that it is the plaintiff who has instituted these proceedings and who gave the notices of claim.”

[56]  In a claim based on medical negligence a claimant is required, pursuant to s 22(2), at the outset, to provide a respondent with an appropriate medical report.  This is clearly to avoid an open ended claim and allows a respondent to see what it is the claimant is alleging so as to be able, amongst other things, to retain expert advice itself.  The State’s solicitors regularly sought such a report from the appellant.  The appellant contends that the failure to make an application constituted acquiescence in the delay in the PIPA process.  The appellant could not have concluded that the State was giving her as much time as she needed to produce the relevant medical report.  The letters were courteous but firm and regular.  The primary judge did not overlook this matter and he did not err in not giving greater weight to it so as to conclude the State had acquiesced in the appellant’s delay.

(iv)Ground 2.2(d) - disclosure

[57] The appellant contends that the primary judge failed to take into account that the State had not given proper disclosure about the identity of the medical practitioner who had signed the certificate of 10 January 2001.  Those investigations and the responses had not been disclosed to the appellant until the documents appeared as exhibits to the State’s solicitor’s affidavit sworn on 18 August 2010.  Section 27 of the PIPA provides:

“(1)A respondent must give a claimant –

(a)copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim –

(i)reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates …”

Section 27(2) provides:

“A respondent must –

(a)give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent’s possession later, within 7 days after it comes into the respondent’s possession…”

Section 27(4) provides:

“If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.”

[58]  The appellant contends that by not disclosing the material promptly the State allowed the appellant to carry out unnecessary and fruitless investigations in the period from 21 May 2007 to 12 September 2008 which delayed the advancement of the claim.  A perusal of the chronology would suggest that this submission is overly sweeping. As already discussed, that period in the chronology included many consultations with the appellant about the hospital charts; dealing with Dr Niesche and providing those reports to the defendants; consulting the original hospital records in Brisbane; serving a list of documents on each of the defendants; seeking the Orange Base Hospital records because of a change in the appellant’s medical condition; and receiving an advice on evidence from counsel.  The examination of the hospital records involved far more than searching for “Dr N Hay…”.  In submissions, counsel suggested that it was “ironic” that the primary judge took the failure to disclose into account on the question of costs.  The PIPA empowers a court to reflect such a failure in costs.

[59]  The State’s response to Ground 2.2(d) explains that the more recent email from Dr Hayward was obtained after the PIPA process had concluded.  It seems to be accepted by the appellant that the earlier documents, at the time they were received, might properly have been thought to attract privilege.  On 30 November 2007 this court decided in Watkins v State of Queensland[50] that correspondence with a third party is not privileged when obtained in the PIPA process.  Thereafter, the appellant contends, the documents ought to have been disclosed.  The State contends that all the information contained in the letter of 13 April 2005 from Dr Noel Hayman to the State’s solicitors[51] in which he stated that he had never worked at the Mt Isa Base Hospital and did not sign the medical certificate dated 10 January 2001 was information which was contained in the letter of the State’s solicitors to the appellant’s solicitors on 11 January 2005.[52]  If that be accepted, there remains the letter of 13 May 2004 from the Mt Isa Health Service District,[53] already set out above, and the email from Dr Nicholas Hayward of 18 April 2005[54] which has also been set out.  The State concedes that the email communication from Dr Nicholas Hayward falls within the reasoning in Watkins[55] being a communication between a solicitor and a third party.  It contends that the letter of 13 May 2004 continues to attract legal professional privilege because it was between the solicitor and the client.  In Watkins it was emphasised that the provisions of the PIPA do not abrogate legal professional privilege.  That statement has recently been confirmed in this court in Felgate v Tucker.[56]

[60]  If Watkins had been understood as requiring a review of the documents which had (or had not) been disclosed pursuant to the PIPA process, that would not have occurred until the end of 2007 and would not, it may be thought, have made an appreciable difference in the progress of the PIPA proceedings since the appellant was yet to find a medical specialist who could produce a report which would comply with the requirements of s 22(2) of the Act.

[61]  Although the primary judge did not discuss the failure to provide the response from Dr Hayward to the appellant’s solicitors he did not overlook it.  He regarded the difficulties with the 7 December consultation as only one aspect of the appellant’s case and regarded the years that it took to obtain a favourable medical report as the significant fact.  His Honour did not err in failing to give this neglect any greater weight in the assessment of the outcome of the application.

Conclusion

[62]  His Honour noted that a significant contributor to the appellant’s delay has been her impecuniosity.  He noted that large sums had been expended at times by her and on her behalf.[57]  His Honour also recognised that there may be reasonable prospects of success on the basis of Dr McCormack’s report, although noting that the impact of the wrong assumption made by him in respect of the antibiotic treatment on his opinion would be unknown.[58]  His Honour concluded:

“On the other side of the coin however is the fact that these are medical negligence cases where the relevant events occurred almost 10 years ago and where there have been substantial, indeed gross delays in progressing the matter in a number of respects, perhaps the most notable of which is the failure to provide the medical reports of Dr [Niesche] for a significant time.”[59]

[63]  His Honour noted that the report of Dr McCormack expanded the allegations beyond those in Dr Niesche’s report and, while acknowledging that the statement of claim was drawn in broad terms, commented that Dr McCormack raised different allegations from those under consideration in Dr Niesche’s report.  The primary judge engaged in an appropriate weighing exercise recognising that the effect of delay on the quality of justice and the capacity for the parties to have a fair trial was an important influence in reaching his conclusion.  His Honour did not fail to consider adequately or to give sufficient weight to any matter which he needed to consider, nor did he give undue weight to any matter which he appropriately considered.  His decision was not unreasonable or unjust such that his discretion miscarried.  In those circumstances the appeal should be dismissed.

[64]  MARGARET WILSON AJA:  I agree with the order proposed by White JA and with her Honour’s reasons for judgment.

[65]  MARTIN J:  I agree, for the reasons given by White JA, that the appeal should be dismissed.