DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant/defendant, Dr. John Morris, seeks to strike out the action for want of prosecution. The application relies on rules 5 and 280 of the Uniform Civil Procedure Rules 1999 as well as the inherent jurisdiction of the Court. Either approach has been approved as a proper approach: Quinlan v Rothwell (2002) 1 Qd. R. 647.

2. [2]
   The respondent/plaintiff was treated by the applicant between December 1998 and March 1999. The applicant is an orthopaedic surgeon by profession. The Claim and Statement of Claim was filed on 24 December 1999 and filed on 12 January 2000. It alleges mistreatment of a left knee injury. The chronology is outlined in the submissions (Exhibit 1). The last step in the action was taken on 22 April 2002 when the respondent served a copy of the report of Dr. Allman dated 22 November 2001.

3. [3]
   This application is not opposed. The plaintiff’s solicitors were served on 17 May 2004 by post and in the ordinary course should have received the material on 19 May (affidavit of Mr. Sivyer filed by leave).

4. [4]
   The principles to be applied on an application of this nature have been determined by the Court of Appeal in Tyler v Custom Credit Corporation Ltd. (2000) QCA 178.  These principles were applied by me in Vincent v Temple DC 641 of 1995 an unreported decision of 24 October 2003.

Factors to  be taken into account  

“how long ago the events alleged in the statement of claim occurred and what delay there was before litigation was commenced”

5. [5]
   The treatment by the applicant commenced in December 1998. The last treatment occurred in April/May 1999 according to the pleadings. The action was commenced on 24 December 1999.

“what prospects the respondent has of success in the action”

6. [6]
   The prospects of success are not good. Both the experts of each side have expressed the view that support the professional expertise of the applicant. Dr. Allman for the respondent was somewhat equivocal in his report. He did not recognise deep vein thrombosis as a common complication after an arthroscopy. Further surgery may be necessary for all sorts of reasons. Dr. Morgan who was retained by the solicitors for the applicant was more direct. He believed that Dr. Morris has treated the respondent appropriately. He could not detect any lack of care in the treatment by Dr. Morris. The specialist physician, Dr.O'Donovan gave an opinion which may be given little weight given the expert orthopaedic reports.

“whether or not the action has been characterised by periods of delay”  

7. [7]
   The action was not advanced by the respondent between November 2000 when an amended Statement of Loss and Damage was served and April 2002 when the report of Dr. Allman was served. In that period the applicant’s solicitors served its reports on the respondent. No explanation has been given for the delay since the latter date. There is no material which suggests that the respondent’s impecuniosity has been the reason for the delay.

“whether the litigation between the parties would be concluded by the striking out of the respondent’s claim”

8. [8]
   The short answer to this is “yes”. The limitation period has expired. The claim is based in negligence.

“how far has the litigation progressed”

9. [9]
   After the filing of the Notice of Intention to Defend on 16 February 2000, no further step has been taken in the Court. The last step has been referred to as the delivery of the Amended Statement of Loss and Damage served in April 2002.

“whether or not the delay has resulted in prejudice to the applicant leading to an inability to ensure a fair trial”

10. [10]
    The applicant says that the treatment occurred some five (5) years ago. The failure to warn by the applicant is relied upon. The application cites Brisbane South Regional Health v Taylor (1996) 186 CLR 541 at 551:

“….where there is delay the whole quality of justice deteriorates.  Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed.  But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties.  Prejudice may exist without the parties or anybody else realising that it exists.  As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, ‘what has been forgotten can rarely be shown’”.

In a case of operative treatment, a doctor may have notes which assist to recall what the nature of the treatment was.  The details of the procedure would be lost with the passage of time. 

Findings

11. [11]
    The various factors have been discussed above. In the absence of any explanation by the respondent, given the delays, it is appropriate that the action be struck out.

Orders  

1. It is ordered that the respondent/plaintiff’s action be struck out for want of prosecution.
    
2. It is further ordered that the respondent/plaintiff do pay the respondent/defendant’s costs of the application and the action on a standard basis to be assessed.