Jonsson v The State of Queensland
[2001] QDC 95
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- Unreported Judgment
- Jonsson v The State of Queensland[2001] QDC 95
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Jonsson v The State of Queensland[2001] QDC 95
Jonsson v The State of Queensland[2001] QDC 95
DISTRICT COURT OF QUEENSLAND
CITATION: | Jonsson & Ors v. The State of Queensland & Ors [2001] QDC 095 |
PARTIES: | ANNABELLE CANTARA JONSSON First Plaintiff and TRACEY LEE MARGARET TAYLORSecond Plaintiff and CYNTHIA JOY WALKERThird Plaintiff and THE STATE OF QUEENSLAND First Defendant and ENDOVASIVE PTY LTD ACN 061 512 132 Second Defendant and QUEENSLAND SURGICAL PTY LTD ACN 058 061 233 Third Defendant and FEMCARE LIMITED Fourth Defendant |
FILE NO/S: | D 2853 of 2000 |
DIVISION: | Chambers |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 19 June 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 June 2001 |
JUDGE: | Judge Robin Q.C. |
ORDERS MADE: | 15 June 2001 |
ORDER: | Plaintiffs to file and serve separate statements of claim, leading to separate trials |
CATCHWORDS: | Practice and procedure – Uniform Civil Procedure Rules, r 5, r 65, r 68, r 69 – separate statements of claim and separate trials (failing further contrary order) ordered – 3 plaintiffs sue in respect of sterilisation procedures relying on subsequent advice that the chances of failure were higher than represented prior to surgery because of possible failure of “Fishlie clip” applicators – unknown whether their procedures in fact failed – although procedures occurred at the same hospital, they were on different days – different surgeons and medical advisors were involved – the plaintiffs’ prior and subsequent medical histories were apparently considerably different. Queensland Estates Pty Ltd v. Co-Ownership Land Development Pty Ltd (No. 2) (1971) QdR 165; Hagan v. Bank of Melbourne Limited (1994) 2 QdR 507; Henschell v. Brittany Crepe Co. Pty Ltd (1981) QdR 173; Bishop v. Bridgelands Securities (1990) 25 F.C.R. 311. |
COUNSEL: | G. Mullins for the plaintiffs J. Dalton for the first defendant T. Perry for the second defendant T. McBride for the fourth defendant |
SOLICITORS: | McInnes Wilson for the plaintiffs Hunt & Hunt for the first defendant Sparke Helmore for the second defendant Freehills for the fourth defendant |
- [1]These are reasons for the following orders which were made in Chambers on 15 June 2001:-
“(1) that the plaintiffs file and serve independent statements of claim, and have liberty to replead as each may be advised
- (2)that failing further order to the contrary, the claim of each plaintiff be tried separately
- (3)that disclosure take place on the basis of a single proceeding incorporating the claims of all three plaintiffs
- (4)costs reserved”.
- [2]Such orders were made on the first defendant’s application for orders including the following:-
“1. That the second and third plaintiffs be removed from these proceedings.
- Alternatively, that there be separate trials of the actions brought by the first, second and third plaintiffs.
- That paragraphs 4, 5, 6, 7, 8.1, 8.2 and 8.3, together with schedules 1. 2 and 3, of the plaintiffs’ further amended statement of claim dated 11 April 2001 be struck out.
- That the plaintiffs have leave to re-plead in relation to the paragraphs mentioned at order 3 above.”
- [3]Each of the plaintiffs underwent a surgical procedure at the same hospital operated by the defendant, which should have ensured sterilisation by clamping of fallopian tubes by “Filshie clips”. Each received a letter a year or more afterwards from the Royal Women’s Hospital (and may have received other advice) that the chance of the sterilisation procedure having failed had been discovered to be significantly greater than previously appreciated; suggested ways of proceeding were indicated, including further sterilisation procedures and use of alternative modes of contraception. The “new” information which became available was that applicators supplied by the maker of the clips, whose function was to compress the clips so as to achieve a reliable seal, were liable to fall “out of calibration” after a certain amount of use. One of the complaints against the first defendant is of its failure to keep applicators adequately calibrated and serviced by an authorised repairing agent. The other complaints against it are:-
“8.2 failing to warn the plaintiffs that the prospect of pregnancy may be much greater than three in 1000;
8.3 failing to adequately attach the Filshie clip to the plaintiffs’ fallopian tubes.
8.4 failing to record the serial number of the applicator used in the surgery to ensure that the relevant applicator used in the surgery could be identified if there was some question or concern in respect of its operation or satisfactory function.”
- [4]The other defendants are brought in as part of the chain of suppliers of the clips and applicators; they are charged (speaking compendiously) with supplying unsuitable products and with failing to supply appropriate instructions for their use. (The third defendant was said to be in liquidation, and unlikely to be concerned in the proceeding.) The second and fourth defendants attended the hearing of the application to abide the order of the court, although Mr McBride, for the fourth, did make submissions in the end. His client and Miss Perry’s have not encountered the same difficulties the first defendant complains of in pleading to the statement of claim; their defences are on the file.
- [5]The impugned paragraphs in the statement of claim, apart from paragraph 8, are as follows:-
“4. On or before August of 1999, each of the plaintiffs underwent a sterilisation procedure at the hospital operated by the first defendant, particulars of which are supplied in the schedule annexed hereto.
- Following the surgery, each of the plaintiffs ceased to use other form of contraception.
- Between August and November of 1999, each of the plaintiffs was advised:
6.1 that procedures performed at the hospital using Filshie clip applicators that had not been serviced for over 12 months had a potentially high failure rate;
6.2 that two of the applicators used by the hospital had not been serviced or calibrated and were out of calibration to a degree that may give rise to a higher than acceptable rate of failure;
6.3 that they should consider using alternative forms of contraception until they could discuss the issue with their doctor or the hospital;
6.4 that there was not way of determining whether the instrument used in their sterilisation procedure was one of those which was out of adjustment;
6.5 that the risk of pregnancy if the instrument was not properly adjusted could be several times higher than the three in 1000 normally associated with the procedure;
6.6 that to be perfectly safe, they should not rely on the sterilisation procedure performed by the first defendant as a means of avoiding pregnancy;
6.7 that the following alternatives were available:
6.7.1 the plaintiff could undergo a hysterosalpingogram, however, this test would only show whether the tubes were blocked on the day the test was performed.The situation could change as the tubes could block of unblock at any time for unrelated reasons;
6.7.2 the plaintiffs could look at alternative forms of contraception.
- As a consequence of the advice from the first defendant:
7.1 the sterilisation procedure undergone by the plaintiffs on the dates referred to in the schedule has or may have been wasted;
7.2 the plaintiffs have suffered emotional and psychological distress;
7.3 the plaintiffs have or may be required to undergo further surgery, further testing or use alternative forms of contraception, particulars of which are contained in the schedule.”
- [6]There is a separate schedule for each plaintiff. The third plaintiff’s is as follows:-
| “Date of Birth: | 13 November 1960 |
| Date | Event |
| 11.08.98 | Application of clips |
| 23.08.99 | Receipt of letter advising of potential problem |
| 27.08.99 | Commenced use of alternative contraception |
| 27.09.99 | Hysterosalpingogram and re-sterilisation |
| Damages claimed | |
| Pain, suffering and emotional distress with interest at 2% | $45,000.00 |
| Cost of further surgery | 3,000.00 |
| Domestic care following further surgery | 3.000.00 |
| Cost of further contraception | 1,000.00 |
| Travelling/Special damages with interest at 6% | 1,000.00” |
- [7]The last-mentioned “Event” is absent in respect of the first and second plaintiffs. No date is replicated anywhere in the three schedules; otherwise, absolutely identical assertions and claims are made.
- [8]The first defendant, represented by Ms Dalton, was highly critical of the separate claims being identical. In particular, she argued (and I would agree) that it cannot be that identical dollar amounts could genuinely be thought appropriate; the plaintiffs’ cases must surely have important distinguishing features. My reaction was one of concern at the potential for unnecessary embarrassment of a judge who comes to assess all three damages claims and makes assessments which may differ widely among plaintiffs who have made a joint approach to the court on the basis their damages should be the same. Meredith v. Palmcam Pty Ltd (2000) QCA 113, Appeal 1255 of 2000, 7 April 2000 indicates the importance of careful pleadings of various components of damages.
- [9]I cannot approve of the collective style adopted in the statement of claim. While no great ingenuity may be required to plead to the schedules, I do not think the first defendant should have to do that. I doubt that any more paper or ink would have been required to present the defendants with a pleading containing separate or discrete allegations of fact referable to particular plaintiffs. However, there is little attraction in turning the proceeding into a pleading war and I have found it unnecessary to make orders about particular parts of the statement of claim. On the other questions raised in the application, the conclusion reached means there will be a new, individual statement of claim for each plaintiff, it is likely Miss Dalton’s concerns will be adequately addressed when the repleading exercise is undertaken.
- [10]Rule 65 of the Uniform Civil Procedure Rules is:-
“65 (1) In a proceeding, 2 or more persons may be plaintiffs or defendants or applicants or respondents if –
- (a)separate proceedings were brought by or against each of them and a common question of law or fact may arise in all the proceedings; or
- (b)all rights to relief sought in the proceeding (whether joint, several or alternative) arise out of the same transaction or event or series of transactions or events.
- (2)Also, in a proceeding, 2 or more persons may be defendants or respondents if –
- (a)there is doubt as to -
- (i)the person from whom the plaintiff or applicant is entitled to relief; or
- (ii)the respective amounts for which each may be liable; or
- (b)damage or loss has been caused to the plaintiff or applicant by more than 1 person, whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or applicant.”
- [11]There could hardly be any argument about the joinder of all four defendants. The presence of claims of all three plaintiffs in a single proceeding was conceded by all parties to be within rule 65(1), presumably (a). It is unnecessary for me to express any view. Mr Mullins (for the plaintiffs) is probably correct in asserting there is, at least, a common question of fact potentially arising as to instructions the first defendant, or its medical staff, may have received regarding the use of clips and applicators from other defendants. The state of communicated instructions was not necessarily the same as at the various dates of the three impugned procedures.
- [12]Rule 69 is available as a basis for an order removing one or more of the plaintiffs from the proceeding. Given the concession as to rule 65 and the principles set out in rule 5, much relied upon by Mr Mullins, it would be quite unjustifiable to force any of these plaintiffs to the expense and trouble of entirely new proceedings.
- [13]Rule 68 is also available as a source of relief for a litigant inappropriately disadvantaged by the use made of rule 65, it is in part:-
“68 (1) This rule applies to a proceeding, despite division 2, if including a cause of action or party may delay the trial of the proceeding, prejudice another party or is otherwise inconvenient.
- (2)The court may, at any time –
- (a)order separate trials; or
- (b)award costs to a party for attending, or relieve a party from attending, a part of a trial in which the party has no interest; or
- (c)stay the proceeding against a defendant or respondent until the trial between the other parties is decided, on condition that the defendant or respondent against whom the proceeding is stayed is bound by the findings of fact in the trial against the other defendant; or
- (d)make another order appropriate in the circumstances.”
- [14]I think it is clear that a judge called upon to determine this whole proceeding will be required to determine three completely independent claims, if it matters, write three judgments – quite apart from issues that might arise among the defendants, presently unknown, given the early stage we are still at. This flows not only from there being three individual plaintiffs whose circumstances both before and after the attempted sterilisation procedures will surely be different and particular to them (including physical and psychological). The procedures complained of may have occurred in the same hospital, but they occurred on different days (14 July 1997, 7 August 1997 and 11 August 1998) and were carried out by different surgeons. At a single trial, the judge will be asked to find each of the three surgeons individually negligent. See paragraph 8.3 of the statement of claim. The warnings (if any) given to each of the plaintiffs before undergoing the procedure were given at different times and by different practitioners; the terms of each one would have to be carefully found by the judge, uninfluenced by evidence relating to other plaintiffs. Cf. Connell v. Nevada Financial Group Pty Ltd (1996) 139 ALR 723.
- [15]There is no evidence before the court to show whether the procedure in fact failed in the case of any of the plaintiffs, although Mr Mullins stated from the bar table that x-rays showed, in each plaintiff, a clip partly open. So far as the evidence showed, Mrs Walker, in the course of a surgical procedure she was to undergo anyway, underwent clip replacement, when nothing untoward about the outcome of the original procedure was observed. On the evidence before the court, the other plaintiffs have not undergone further investigations or procedures, but have returned to alternative forms of contraception. It has been noted that more than a year separated the first plaintiff’s procedure and the third plaintiff’s, giving rise to the possibility that the defendants (the first in particular) knew or should have known more about the pitfalls of the procedure and acted accordingly in performing their duty of care as time went by.
- [16]Mr Dalton’s written submissions in relation to paragraph 8.2 assert that the failure to warn case is not properly pleaded:-
“Before any failure to warn can be causative, such matters as what each individual plaintiff would have done if properly warned would have to be pleaded.”
The lesson may probably drawn, again, that, even if there are some common issues, there must be vital issues particular to each plaintiff.That observation would hold true even if, as Mr Mullins invited the court to predict, quantum issues were resolved and the trial concerned liability only.
- [17]My assessment, as things presently stand, is that a trial of all claims before a single judge, at a single sitting, would become unwieldy. I think it something better avoided. The case for a single trial is weakened, in my opinion, by Mr Mullins identifying at a number of points in the hearing things the plaintiffs “don’t know”. See eg. p52.13, p55.30 and p58.39 of the transcript. It is hardly appropriate to use this proceeding to help the plaintiffs “fish out” their own cases.
- [18]It is an unavoidable consequence, I fear, that costs may be increased by separate pleadings and trials. During the hearing, some thought was given to steps that could be taken to avoid hardship to the plaintiffs, in particular, from having to conduct three separate trials. Nothing useful eventuated, but I would not like to see the quest abandoned. It emerged during the hearing that this proceeding is but one of several in this court involving the same defendants, clips and applicators, among a still larger number including so-called “Wrongful Life” claims in the Supreme Court. I have suggested the possibility of some case management of the District Court proceedings as a group. Steps along these lines may lead to resolution of issues in some proceeding or other with a practical outcome that like conclusions are accepted as highly likely, if not inevitable in others.
- [19]Miss Dalton referred to some interesting authorities on the former Supreme Court Rules, whose terms were different from the UCPR provisions: RSC Order 3 rule 1 and Order 3 rule 5A. See Queensland Estates Pty Ltd v. Co-Ownership Land Development Pty Ltd (No. 2) (1971) QdR 165; Hagan v. Bank of Melbourne Limited (1994) 2 QdR 507; compare Henschell v. Brittany Crepe Co. Pty Ltd (1981) QdR 173.Although Ryan J. was dealing with an issue of joinder rather than separate trials, his comments in Hagan at 509 are a helpful reference to the pertinent considerations:-
“A critical question, in my opinion, is whether joinder would be likely to result in unfairness to any party.I was referred to a judgment by Wilcox J. in Bishop v. Bridgelands Securities (1990) 25 F.C.R. 311, in which, while holding that the discretion to permit joinder was in terms unconfined, he said that it was appropriate to consider what principles ought to guide the exercise of such a discretion.He said (at 314-315):
“The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation.Considerations of costs and delay may often support the grant of leave …; but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.Secondly, regard must be had to practical matters.For example, it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors … Similarly, although all applicants might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims.The discrete material may overbear that which is common to all the claims.Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent;”
In the present case, it seems to me that the application of these principles leads to the conclusion that while the claims of the first, second, third and fourth plaintiffs may be appropriately joined, the claims of the fifth and sixth plaintiffs are sufficiently distinct that it would be wrong to give leave to join them.The alleged discussion and representations occurred at separate meetings respectively of the first and third plaintiffs (who represented also their wives, the second and fourth plaintiffs), and of the fifth plaintiff (who represented also his wife the sixth plaintiff).The representations made to the fifth plaintiff may have been similar, but I consider that the possibility that the proceedings may be unfair to the defendants if all the plaintiffs are jointed in one action is substantial.
It was suggested that if joinder is not allowed, there was a real danger of an undesirable situation of inconsistent judgments based on the same or similar subject matter.There was a consideration which led Connolly J. in Henschel v. Brittany Crepe Co. Pty Ltd [1981] QdR. 173 to conclude that separate trials of the defendants would be inappropriate.But on the allegations contained in the draft statement of claim, it may be that different findings in relation to the claims of the fifth and sixth plaintiffs from those of the other plaintiffs may be justified.
- [20]In Queensland Estates, Matthews J. ordered separate trials of the causes of action against the first and second defendants, on the one hand and those alleged against the third defendant on the other; his decision was upheld by the Full Court.
- [21]I think a severance, but here on the plaintiffs’ side, is the correct outcome. Circumstances may change dramatically, and I would not suggest for a moment that an order for separate trials made now would not be reviewable. I have been in two minds as to whether it might not be preferable to adjourn the application for separate trials (merely ordering separate statements of claim at this stage), perhaps with an intimation that, as at this present time, I would strongly favour separate trials. Mr Mullins submitted an order for separate trials was premature. The separate trials issue was argued fully. I think the better approach is to make the order for separate trials now, so that the parties know where they stand, and also know they have the ability to apply to the court in future that the trials be held together.
- [22]The arguments focused to an extent on the possibilities of “inconsistent judgments” should the plaintiffs find themselves before different judges. I do not think that is a real concern here. I agree with Miss Dalton that different outcomes may be appropriate, depending on the evidence adduced in respect of each plaintiff’s claim. It is not a case where a particular plaintiff deserves protection against the risk of “falling between stools”. One might as well say there would be cause for concern if the plaintiffs in the other proceedings in this and other courts alluded to obtain different outcomes. It is untenable to suggest that, because these three plaintiffs have made common cause, they are entitled to expect that they will succeed or fail together.