Nyks v Tolhurst[1998] QDC 293

BETWEEN:

AND:

REASONS FOR JUDGMENT - BOULTON D.C.J.

Delivered the 9th day of November 1998

This is an application on the part of the plaintiff for leave to proceed in the action.

The action is a medical negligence action arising out of cosmetic surgery performed by the defendant upon the plaintiff in July 1986. The last step taken in the action by the plaintiff was the delivery of her affidavit of documents in December 1993. The defendant delivered his affidavit of documents in April 1994.

The plaintiff's delay is sought to be explained by her very serious psychiatric problems - serious to the point where her capacity to give instructions to her solicitors was not merely questioned but actually denied by expert psychiatric opinion. She has also had changes of solicitors in recent years which would seem to have occurred for reasons beyond her control, although to some extent, those changes may be a product of the fact that she has been a very difficult client for solicitors to deal with.

At first sight, her delay appears to be quite irresponsible. Not only was there the delay from 1994 onwards, but by letter dated 16th December 1997, the defendant's solicitors notified the plaintiff's solicitors of the need for leave to proceed and of their intention to oppose such an application if it were made. That application has only been made in recent weeks following a conditional order for dismissal for want of prosecution which was made by Acting Judge Hinson on 4th September 1998. That order was made subject to leave to proceed being granted on or before 16th October 1998. However, liberty to apply was granted for an extension of time on two days notice.

The plaintiff filed this current application on the 12th of October 1998 and it came before me on the 15th of October 1998. On that day I made an order extending time to the day following the handing down of my decision in the matter.

This is not a case where the plaintiff has lost interest in the action. As a matter of fact she has taken an obsessive and sometimes bizarre interest consulting a huge number of doctors, writing numerous letters, including letters to the defendant himself and his legal advisers.

The plaintiff's then solicitors received a report from Dr Joan Lawrence dated 4th May 1994 advising in quite unequivocal terms that the plaintiff was incapable of giving instructions to solicitors and receiving advice. At that time the plaintiff's solicitor was Ms Rosemary Hill of R.F. Hill & Associates. According to the affidavit of the plaintiff, Ms Hill became unwell and could not continue. The conduct of the matter was then taken over by Atherton and Co, and Mr Hoskins. In October or November of 1996, Mr Hoskins left the firm and the matter passed to Nall Payne on or about 21st January 1997.

The affidavit of Cameron John Hoare filed 3rd September 1998 details the conduct of the matter since that time. The quite voluminous material was collated and a brief sent to counsel to advise. That advice was received on or about 28th May 1997. The plaintiff attended Dr Brian Hazel, a psychologist, and also attended around this time a conference with counsel. She was referred to Dr Peter Mulholland and on or about 28th November 1997, an appointment was made for her to see Dr Mulholland on 30th March 1998. Dr Mulholland's report dated 6th April 1998 is Exhibit B. He thought her a borderline case when it came to having sufficient psychiatric capacity to conduct her litigation. He thought though that her paranoid disorder may have had some causal connection with her 1985 surgery.

A perusal of the plaint reveals that there is no claim made for psychological or psychiatric consequences of the 1985 surgery.

In early 1998, the plaintiff's solicitors also referred the plaintiff to Dr Michael W Lanigan, a plastic and reconstructive surgeon. Dr Lanigan was asked to comment on whether there was a causative factor linking her 1985 surgery with a collapsed nasal valve. He thought that this would be difficult to establish. He was also asked about an alleged failure on the part of the defendant to obtain a psychological assessment of the patient or to perform a CT scan prior to surgery. Again Dr Lanigan thought that clinical evaluation by the defendant may have rendered such actions unnecessary.

The plaintiff was also referred to Dr Frank Szallasi. Dr Szallasi provided a report dated 3rd March 1998. He thought that the narrowing of her airways resulting in nasal obstruction was the result of her rhinoplasty. He went on to say:

It should be noted that the plaint alleges damage from the application of an external splint.

Dr Szallasi goes on to dismiss as “not mandatory and not always feasible” the practice of one surgeon contacting a surgeon who has performed an earlier operation. He also considered psychological or psychiatric evaluation prior to cosmetic rhinoplasty as “not routinely undertaken”. He is dismissive of the need for CT scans prior to such surgery and concludes:

A psychological report conducted by the Toowong Psychology Centre over the hand of Dr Brian E. Hazell and Madonna Abella speaks of the plaintiff's obsession with perceptions of injustice. The report at paragraph 4 of the prognosis lists her complaints:

I was also referred to a report of Dr Jim Hallam, an ENT surgeon, dated 9th September 1998. Dr Hallam provides a history outlining her initial rhinoplasty performed in 1985 by Dr Dell Hinkley which was unsatisfactory in some respects. He then refers to the corrective surgery in 1986 performed by Dr Tolhurst, which is the subject of the present litigation. Following this surgery, she has experienced right nasal obstruction and has been dissatisfied with the cosmetic result.

Dr Hallam agrees that the cosmetic result, while not severe, is less than perfect. Her also agrees that there is a mild functional problem with her nose as a result of previous surgery with regards to right nasal obstruction. Significantly, he does not attempt to isolate the contribution to this effect of the surgery performed by the defendant.

As to post-nasal drip, nasal infections with subsequent systemic complaints, Dr Hallam thinks that there is no way of proving a connection with previous nasal surgery.

When the defendant's application came before Acting Judge Hinson on 3rd September 1998, the plaintiff's solicitors served the Public Trustee with a copy of the summons. The Public Trustee declined to become involved unless appointed manager of the plaintiff's financial affairs.

On 4th September 1998, Acting Judge Hinson found that “the court is not satisfied that Alicja Nyks is suffering mental disability to such a degree that warrants the appointment of a next friend”.

It cannot be said in these highly unusual circumstances that the plaintiff has been guilty of intentional and contumelious disregard for the defendant. However, I have referred in some detail to the comments of Dr Lanigan and of Dr Szallasi in response to queries made by the plaintiff's own solicitors which suggest that there is very grave difficulty after such a lapse of time in making out the allegations of negligence. More importantly, there are serious difficulties after such a lapse of time in the defendant responding to allegations such as those communicated by the plaintiff to Dr Hazell.

The defendant's counsel advanced the following submission as to prejudice:

Some of these factors may operate more heavily against the plaintiff. I have already pointed out that there is no claim for psychological or psychiatric injury to be found in the plaint. To that extent there will be no disentangling of psychological consequences to be performed by the defendant on trial. Rather, the obsessive and bizarre attitudes of the plaintiff which are so well documented are likely to present almost insuperable difficulties to her in presenting her case.

Disentangling the effects of the 1986 surgery rom those of the earlier surgery performed by Dr Hinkley could well be very difficult.

I would be reluctant to refuse leave to proceed to the plaintiff on the grounds of her own disability and the difficulty that that may cause her in presenting her case. I note her obsessive beliefs of injustice and the opinion of Dr Hazell that success in the litigation may assist her in a recovery.

I am not persuaded that the inconvenience to Dr Tolhurst who lives in England and has a sick mother is of major significance to the outcome of this application. Of more significance is the fact that there is an allegation against his professional competence which has persisted for 12 years and which, on much of the evidence, seems relatively trivial and in some respects quite unreliable. What really persuades me to refuse leave to proceed in the present case, however, is the very long lapse of time that has occurred. This will make it extremely difficult to respond to the sorts of allegations that are being made some of which would seem to be based on the conversations at the time. Very important too is the obvious difficulty experienced by the medical specialists who lack precise knowledge of the circumstances which prevailed at the time.

The principles to be applied in cases of this kind are well established in such cases as Wilson v Rynon (1984) 2 Qd.R. 83 and Dempsey v Dorber (1990) 1 Qd.R. 418. In the lastmentioned case, it was held that the proper approach to the question was to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there was good reason to making the order.

I am not at all satisfied that there is good reason for excepting this action from the general prohibition. Accordingly, I refuse leave to proceed.

I order that the plaintiff pay the respondent's costs of and incidental to the application to be taxed.