Dowell v Australian Hospital Care (Pindara) Pty Ltd
[2003] QDC 343
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Dowell v Australian Hospital Care (Pindara) Pty Ltd[2003] QDC 343
- Add to List
Dowell v Australian Hospital Care (Pindara) Pty Ltd[2003] QDC 343
Dowell v Australian Hospital Care (Pindara) Pty Ltd[2003] QDC 343
DISTRICT COURT OF QUEENSLAND
CITATION: | Dowell v Australian Hospital Care (Pindara) Pty Ltd (ACN 005 288 095) t/as Pindara Private Hospital & Ors [2003] QDC 343 |
PARTIES: | ERICA DOWELL Plaintiff and AUSTRALIAN HOSPITAL CARE (PINDARA) PTY LTD (ACN 005 288 095) TRADING AS PINDARA PRIVATE HOSPITAL Defendant and EMERGENCY MEDICAL GROUP PTY LTD (ACN 077 844 627) First Third Party and IMPACT HEALTH CONSULTING) PTY LTD (ACN 059 406 147) Second Third Party and DR ANTHONY MICHAEL HAYEK Third Third Party and DR ADAM INGLIS Fourth Third Party |
FILE NO/S: | D854/2001 |
DIVISION: | District Court |
PROCEEDING: | Application |
ORIGINATING COURT: | Southport |
DELIVERED ON: | 6th October 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 25th August, 2003 |
JUDGE: | R D Hall DCJ |
ORDER: | I make orders in terms of paragraphs 1, 2 and 3 of the application |
CATCHWORDS: | Limitation of actions - Application of Statutes of Limitation - Amendment of Pleading – Amendment introducing new parties - After expiration of Limitation period - Discretion of Court - Relevant considerations. Procedure - Practice under Rules of Court – Other matters - Joinder of Defendants after expiration of limitation period – Discretion – Relevant considerations – Uniform Civil Procedure Rules, Rule 69(2)(g) Cases cited: Cacchia v Rungert (2002) QCA 20 Cooper v Dexter (2003) QDC 031 H v Queensland Newspapers Pty Ltd (2001) QSC 083 Jerome v Hill (2001) 1 QDR 496 Lupus v State of Queensland (2003) QSC 093 Pritchard v Racecage Proprietary Limited (1997) 72 FCR 203 Whittaker v Commonwealth of Australia (2001) QSC 079 |
COUNSEL: | Ms K F Holyoak for the plaintiff Mr G Diehm for the defendant Ms J Rosengren for the third parties |
SOLICITORS: | McInnes Wilson for the plaintiff Ebsworth and Ebsworth for the defendant United Medical Protection for the third parties |
- [1]The plaintiff in this action, a claim for damages for medical negligence, applies to make the present third parties defendants to the action. The statement of claim alleges that on the 8th September 1998 the plaintiff was admitted to the Emergency Centre of the Pindara Private Hospital operated by the defendant. The plaintiff alleges that she was there diagnosed as having a thrombosis in her right arm and received treatment by hospital staff and was discharged. Subsequently in January 1999 a cardiovascular specialist diagnosed a deep vein thrombosis of the brachial veins of her right arm and she was advised that the treatment provided at the Pindara Emergency Centre was inappropriate.
- [2]The defence filed on behalf of the defendant contained a small number of admissions of non-essential facts and a large number of non-admissions of the facts alleged in the statement of claim on the basis that the defendant “was not presently able to verify the truth or otherwise of the plaintiff’s allegations” which, incidentally, related even to the incorporation of the defendant and its carrying on business as a private hospital under the name and style “Pindara Private Hospital”.
- [3]More relevant pleadings contained in the defence are in paragraphs 4 and 8. Paragraph 4 related to the plaintiff’s claim in paragraph 5 of the statement of claim that she “was diagnosed by a doctor employed by the hospital as being dehydrated;” and said, “As regards paragraph 5(b) of the statement of claim the defendant: (a) does not admit the plaintiff was diagnosed as being dehydrated on the basis that despite due enquiry, the defendant is not presently able to verify the truth or otherwise of the said allegation; and (b) denies any such diagnosis (which is not admitted) was undertaken by a doctor employed by the hospital on the basis that the doctor was a visiting medical officer and not an employee of the defendant.” Paragraph 6 of the defence responds to paragraph 8(c) of the statement of claim which alleges that the plaintiff had an ultrasound conducted on her right arm by the hospital staff and admits that an ultrasound was conducted on the plaintiff but denies that it was undertaken by hospital staff on the basis that the doctor who performed the ultrasound was a “visiting medical officer and not an employee of the hospital”.
- [4]The plaintiff had claimed at all times that she believed that she had attended the Pindara Private Hospital’s Emergency Centre and her solicitor swears that the pleadings of the defence filed on behalf of the defendant confirmed the accuracy of the plaintiff’s instructions. The defendant’s pleading did not cause her any alarms because it was her view that the defendant hospital had a non-delegable duty to the plaintiff irrespective of whether the treating doctors were employees or visiting medical officers.
- [5]Without going into any further detail it can clearly be said that the pleading filed on behalf of the defendant concealed more than it revealed and in fact revealed nothing of the true operation of the Pindara Emergency Centre.
- [6]Official records of the Emergency Centre, tendered as exhibits to the affidavit of Harry Porter McCay are headed “Pindara Emergency Centre, Pindara Private Hospital, Emergency Centre, Pindara Emergency Centre, Emergency Card.” Those records are alleged to have been disclosed in the defendant’s list of documents and statement of expert and economic evidence dated 16th January 2002 and copies were provided to the plaintiff’s solicitors by letter dated 6th February 2002 (see Exhibit HPM5 to the affidavit of Mr McCay). Those events occurred outside the limitation period as did the filing of the defence.
- [7]Almost 12 months after the filing of the defence, namely on 22nd October 2002, the defendant applied in a “Proposed application without oral hearing” for leave to file and serve a third party notice directed to the present first, second, third and fourth third parties. There were no appearances on the return date of that application and I made an order granting that application. The material filed in support of that application and served on the plaintiff’s solicitors, included a “Service Agreement” between the defendant and “Emergency Medical Group Proprietary Limited”. In the terms of that agreement the Emergency Group undertook to provide professional medical services for the Emergency Centre at the hospital to the exclusion of all other medical practitioners other than attending specialist practitioners. The scheme of the agreement was that Impact Health Consulting Pty Ltd would take over the emergency medical services formerly provided by the Pindara Private Hospital which would allow the Emergency Group to use free of any charge or levy the premises, staff, equipment, materials and medical and laboratory services (“the medical facilities”) at the hospital during the term of the agreement and to give to the Emergency Group exclusive use of the “medical facilities” situated in the Emergency Centre “subject to the Emergency Group and AHC reaching agreement on day surgery access”.
- [8]The agreement does not seem to provide for any consultative or other fee or payment by the defendant to Impact Health Consulting Pty Ltd but the defendant was indemnified by “the Emergency Group” against all actions and claims etc arising from negligent use, misuse or abuse of the services or facilities in the Emergency Centre and against any claim of loss, damage, injury or death caused to property or person by the Emergency Group.
- [9]The terms of that document clearly indicated that the defendant was entitled to an indemnity from Impact Health Consulting Pty Ltd and the affidavit of Chelsea Leigh-Anna Perkins, to which the aforesaid service agreement was exhibited, alleged in paragraph 8: “The treatment complained of by the plaintiff in the primary action was administered by Dr Hayek and Dr Inglis neither of whom are employees of Pindara Private Hospital.” Ms Perkins also deposed that the company extract obtained from the Australian Securities Investment Commission for Emergency Medical Group Proprietary Limited discloses Dr Anthony Michael Hayek as a director at relevant times but reveals nothing of any association with or relationship with Impact Health Consulting Pty Ltd. Nor does her affidavit mention the relationship between the first and second third parties and Dr Inglis, the fourth third party.
- [10]Ms Perkins’ affidavit is also entirely silent as to the existence or terms of the “consultancy agreement” which was provided to the solicitors for the plaintiff in explanation of the defendant’s application to join the third parties and was received by the solicitors for the plaintiff on the 12th August 2003. The “consultancy agreement” contains no reference to Emergency Medical Group Pty Ltd or any covenant or term as to indemnification of the defendant. However, the third party statement of claim seeks indemnity or contribution from the first, second, third and fourth third parties pursuant to s 6 of the Law Reform Act 1995 as well as an indemnity from the first third party pursuant to the service agreement. Indeed the third party statement of claim makes it clear that the “consultancy agreement” provided by the defendant’s solicitors to the solicitors for the plaintiff is not relied upon by the defendant at all, for the purposes of this action.
- [11]In addition to the claim as originally and presently pleaded, I am informed that it is proposed to add a further cause of action against the proposed defendants, a claim pursuant to the Trade Practices Amendment Act (No. 1) 2001. No leave is required for the addition of that claim which has a limitation period of six years, that is until the 8th September 2004 (see s 82(2)). It does seem that the damages recoverable in that claim and the heads thereof are identical with those recoverable in the action as presently instituted (Pritchard v Racecage Proprietary Limited (1997) 72 FCR 203).
- [12]The further additional proceedings could be commenced by the plaintiff against all the present third parties as defendants in a separate action. That situation was considered by McGill SC DCJ in Cooper v Dexter (2003) QDC 031 where his Honour said:
“If the application were refused, the plaintiff could issue a separate proceeding against the third respondent and therefore the practical issue becomes whether it is more convenient for this claim to be included as part of the present action or whether it should be a separate action. It is not necessary for the plaintiff to show at this stage either that he has a good cause of action against the additional defendant or even that he has a prima facie case against the proposed party. He need only show what a plaintiff in filing a statement of claim has to show, the pleading of a good cause of action against the defendant. In my opinion, where there is no issue arising about the limitation period, the plaintiff does not need to show more for the purposes on application under r 69(1)(b)(2) in terms of proving his case… It follows therefore that, in my opinion, it is not necessary for me to determine whether either finally or on a prima facie basis the plaintiff has a good cause of action against the third respondent. It is sufficient for the plaintiff to seek to plead a good cause of action against the third respondent. It is sufficient for the plaintiff to seek to plead a good cause of action against the third respondent. There is no doubt that it is possible for the plaintiff to have a good cause of action, depending on whether the plaintiff can prove a factual basis necessary to satisfy the requirements of s 601AG (of the Corporations Act 2001). The plaintiff should therefore be able to proceed to do so in an ordinary way.”
- [13]If such a separate proceeding was commenced then almost inevitably the two proceedings would be consolidate or an application made for them to be heard together. That might well be regarded by all parties as a desirable course to adopt, with potential benefit for all .
- [14]The application is brought under Uniform Civil Procedure Rules r 69(2)(g). Mr Holyoak has submitted without contest, as follows: (a) The rule confers a very general direction which is not limited to “special” or “peculiar” circumstances (Jerome v Hill (2001) 1 QDR 496, approved by the Court of Appeal in Cacchia v Rungert (2002) QCA 207 at para 15; Whittaker v Commonwealth of Australia (2001) QSC 079 and Limpus v State of Queensland (2003) QSC 093); (b) The exercise of the discretion is not to be used or refused punitively (Jerome v Hill (supra)); (c) An explanation for the failure to join the party within time will always be relevant although lack of explanation is not a precondition to the power (H v Queensland Newspapers Pty Ltd (2001) QSC 083 at para 20); (d) Uncertainty as to who is the responsible party may be justification for joinder of an additional defendant to avoid any risk that the wrong party may have initially been chosen as a defendant and the plaintiff might, as a consequence, fail (Cacchia v Rungert (supra) at para 28; Lupus v State of Queensland (2003) QSC 93 at paras 23 and 24); (e) The proposed defendants would be deprived of the benefit of a statutory limitation period, and therefore exposed to a liability that they would not otherwise be exposed to but this may be weighed against other factors including whether any specific prejudice in addition to the ordinary disadvantages caused by delay can be pointed to (Lupus v State of Queensland (supra) at para 25.
- [15]Mr Holyoak argues that the discretion to be exercised under r 69 is more readily available to the plaintiff in these proceedings because in respect of the claims for negligence and breach of contract, the plaintiff is not seeking to join parties outside the limitation period for that purpose alone. The existing third parties can be sued within the limitation period with respect to the Trade Practice Amendment Act claims anyway, whether by joinder to the present proceedings by leave or by separate proceedings initiated without leave. He argues it is therefore more appropriate to consider the other claims which are sought to be included, the present claims against the defendant, not as a joinder under UCPR 69(2)(g) but rather as amendments to a statement of claim against parties already joined, brought within the limitation period, whereby new causes of action are sought to be introduced arising out of the same or substantially the same set of facts (UCPR 376(4)). His argument continues that the amended causes of action need to be antedated to the time when the original proceedings were commenced, rather than when the Trade Practices Act proceedings could now commence without leave for them to be enforceable so that leave is required under UCPR 69(2)(g).
- [16]He further argues that as the proposed defendants are presently third parties in the action they already have to deal with almost certainly the same set of facts and circumstances and legal issues as those they would confront if joined as defendants. The claim in the third party proceedings brought by the defendant also claims tortfeasor contribution therefore raising precisely the same issues as a joined defendant would face because tortfeasor contribution cannot exist unless notionally there is a liability in the third parties to the plaintiff. Therefore questions such as duty and causation as between the third parties and the plaintiff would have to be considered in any event by the court. Further it is argued that the respondent third parties have not pointed to any prejudice of any kind. There has been no doubt that they had been on notice of the claim for some years and it is argued that the affidavit of Mr McCay is redolent of preparation and an ability to defend itself vigorously because it goes so far as to argue that based on medical evidence that has been obtained by the proposed defendants, any proceedings against them would be futile. The absence of any prejudice at all in circumstances where the third parties are already engaged in the proceedings is a very weighty matter favouring exercise of discretion. Finally he argues that the delay which has occurred has been explained. It is submitted the plaintiff shoulders no personal responsibility for the delay in that her misapprehension that the Emergency Centre which she attended was part and parcel of the Pindara Private Hospital is completely understandable. It is argued that it would be unjust if the plaintiff should be disbarred from enforcing rights of action simply because of confusion created by the commercial arrangements of the party that appeared to provide the allegedly negligent services to her. That confusion was transmitted to the solicitors for the plaintiff by the style and manner of pleading of the defence of the defendant. The misconception of the contractual and other relationships between the defendant and the present third parties is demonstrated by her letter of the 22nd of May 2002 (Exhibit ACL2) to her affidavit filed on the 10th of July 2003. That misconception appears to have continued to operate on her mind until July or August of this year when she finally received copies of the defences of the third parties.
- [17]The application is resisted by the present third parties firstly on the ground that the plaintiff has not made out a prima facie case against the proposed defendants. Ms Rosengren took me to the medical reports already provided in the material filed and argued that the plaintiff’s case as against the third parties was futile and unsustainable. Her detailed argument overlooks the crucial consideration that it is not necessary, indeed it is not appropriate, that I determine, in the context of this application, a very clear and serious conflict of medical opinion. In my view it is sufficient for the plaintiff to establish that there is medical evidence, apparently cogent, supporting her claim as against the proposed defendants and that requirement is satisfied in my view by the evidence contained in the opinions expressed by Dr Aroney. Ms Rosengren also argued that the plaintiff’s solicitors should have been alerted by the defence of the defendant filed on 22 October 2001, denying liability and pleading that the doctors were visiting medical officers and not employees of the defendant and that the need to join the third and fourth third parties should have been obvious. More importantly, she argues, while the hospital was always going to owe a non-delegable duty to the plaintiff its pleading raised a doubt whether that non-delegable duty of care would extend to the treatment provided by the third and fourth third parties.
- [18]It seems to me, with respect, that that argument is misconceived. The defendant’s pleading is quite deceptive; it appears to be saying ‘We’re not liable to the plaintiff because the doctors who treated her were not employees of the defendant’. It does not plead that the treating doctors were employees of or visiting medical officers engaged by some other entity. There is nothing in the pleading filed by the defendant, in my view, which ought to have put Ms Dowell or her Solicitors on guard as to the possibility of a private arrangement between the defendant and the first and second third parties.
- [19]Ms Rosengren also argued that the plaintiff had failed to show that it was just to join the proposed defendants and deny them of the right to rely on the “limitation defence” because-
- [20](i) The plaintiff failed to explain why she delayed instituting proceedings until just before the limitation period expired;
- [21](ii) She failed to demonstrate what investigations were made before action commenced to identify the relevant defendants;
- [22](iii) She knew of the Drs. Hayek and Inglis as early as February, 1999;
- [23](iv) The Defence was filed nearly 2 years before this Application, affirmatively pleading that those doctors were visiting medical officers and not employees of the defendant.
- [24]So far as I can determine, allegations (i) and (ii) are correct but those omissions are not fatal to the application. Allegation (iii) and (iv) are also correct but do not assist the respondent Third Parties because of the deceptive nature of the Defendant’s pleading in the Defence.
- [25]Mr Diehm for the defendant argued that it could not be said that the defence filed on his client’s behalf itself led the plaintiff into any error. He argued that at best all that can be said is that it failed to disabuse the plaintiff of a mistake which she had made and there was no opportunity for the defendant to do anything more before the limitation period expired. Indeed the limitation period had expired between the filing and service of the statement of claim and the filing of the defence.
- [26]Further, Mr Diehm argued that rather than adding the third parties as defendants, the better course would be to substitute them for the existing defendant, suggesting that there cannot be any serious issue any longer as to who it was that provided the professional medical services from the Emergency Centre. One can sympathise with Mr Diehm’s position but as Mr Holyoak pointed out, there still remains some uncertainty as to the liability of the defendant. The issue of vicarious responsibility for advice given by Dr Grosser, requested initially by Dr Inglis, the fourth third party, has not been the subject of any evidence at all. Further, it appears from the terms of the service agreement referred to earlier that nursing and office staff remained employees of the defendant notwithstanding that they were engaged in the Emergency Centre. Until those matters were clarified it would not be prudent to substitute the third parties for the present defendant.
- [27]I am satisfied that the plaintiff has shown that it is just to include the four third parties as defendants in these proceedings. In my opinion, the plaintiff’s misunderstanding of the roles of the defendant and the third parties is perfectly understandable and reasonable. Indeed, I believe she could not reasonably be expected to have concluded otherwise than she did, that she was treated as an outpatient at the Emergency section of the Pindara Private Hospital.
- [28]I accept the contentions of Mr Holyoak that Ms Langford’s misconception of issues of legal responsibility as between the defendant and the third parties was caused by misleading pleadings contained in the defence and that misconception was not removed entirely until the defences of the third parties were provided to her on the 24th of June 2003. I find that although there may have been reasons to suspect, there were not sufficient grounds to know that the third parties should be joined as defendants prior to that date.
- [29]Accordingly I make orders in terms of paragraphs 1, 2 and 3 of the application.