DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In early October 1993, the applicant/plaintiff, Denise Shields, was hospitalised at the Rockhampton Hospital which was administered by the fourth defendant, State of Queensland. Doctors Ba Nyunt, Dean Andrew Mullen and Aulent, the first, second and third defendants respectively performed an osteotomy and intramedullary nailing of her left femur. A 13 millimetre by 400 millimetre unlocked nail was inserted into the femur. It is alleged that the nail was some 5 to 6 centimetres too long. Despite undergoing various examinations and procedures between October 1993 and June 2000, it was not until 25 September 2000, that the nail was replaced. Thereafter, the applicant did not suffer any further sharp pains in her left buttock. The present claim is one for damages for personal injuries sustained as a result of the defendants. The last step taken in the action was on 24 October 2001 when a report of Dr. Baker was disclosed to the defendants’ solicitors.

2. [2]
   The proceedings against all defendants were commenced on 29 August 2001. There is medical evidence of a psychiatric nature which suggests that the applicant has been under a disability or lacked capacity since 1993. It is also argued that until September 2000, the applicant was not aware of a material fact which would have justified her commencing proceedings earlier than she did. It is not necessary to determine whether “a material fact of a decisive nature” was not within the applicant’s knowledge until September 2000 on this application. However, the history of the matter shall be considered on both the application for leave to proceed^[1] and the application to strike out the action for want of prosecution.^[2] The lack of capacity issue is relevant on the question as to whether the limitation of actions period applies or not.

Issues for determination

3. [3]
   The main issues on this application relate to whether the applicant has a good cause of action, the long delays between the initial act of negligence alleged and the present application for leave to proceed and whether prejudice to the defendants would be suffered as a result of the delay and which would make a fair trial unlikely.

The factors to be considered

4. [4]
   The relevant factors to be considered on an application of this nature are to be found in the Court of Appeal decision of Tyler v Custom Credit Corporation Ltd & Ors:^[3]

1. (a)
   How long ago the events alleged in the statement of claim occurred

5. [5]
   The initial operation occurred on or about 1 October 1993. Between the date of her discharge from hospital on 14 October 1993 and February 2000, the applicant was seen by not only the first defendant but also other employed medical staff employed by the fourth defendant. These are pleaded in paragraphs 6 to 38 of the Statement of Claim. Throughout the whole period, the applicant complained of pain to her left leg, left hip, left knee and left buttock. It was not until her general practitioner referred her to the Prince Charles Hospital in Brisbane that a decision was made to carry out further operative treatment. In other words, the fourth defendant would hold extensive records of these consultations.

2. (b)
   Delays in commencement of litigation

6. [6]
   Some of these matters have been touched upon in (a). The applicant was operated upon on 25 September 2000. The offending nail was removed and a new nail inserted. The action was commenced on 29 August 2001, some eleven months later. The defendants contend that the limitation date for commencing the claim expired on 1 October 1996. That argument assumes that the applicant has been of full capacity since 1993 and that there is no basis for extending the limitation period. This will be discussed in due course.

3. (c)
   What prospects the plaintiff has of success in the action

7. [7]
   The particulars of negligence rely not only upon the initial insertion of a nail which was too long but also the failure of the fourth defendant by its servants or agents, particularly the first defendant in failing to diagnose to problem of the nail being unlocked or too long. Once the offending nail was removed her main complaints were resolved. The facts speak for themselves. The applicant has good prospects of success. The objective findings of the operation in September 2000 will clearly support her case. This aspect was not pressed by counsel for the defendants.

4. (d)
   Whether or not there has been disobedience of court orders or directions

8. [8]
   This factor is not applicable.

5. (e)
   Whether or not the litigation has been characterised by periods of delay

9. [9]
   In the present case there was a delay of some eight years between the original act alleged to be negligent and the issue of proceedings. The history speaks for itself. However, it might be inferred that until the nail was found to be the problem that the applicant could not have been advised that she had a good cause of action which was worth pursuing. Thereafter no step was taken between October 2001 and the present application which was filed on 3 January 2006. Some explanation was provided by Mr. Catton, the solicitor for the applicant.

10. [10]
    The original application to extend the time in which to sue was adjourned on 8 October 2001 and not proceeded with. Further medical reports were obtained in September and October 2001, March 2002 and 13 April 2005. Mr. Catton left the firm of solicitors acting for the applicant throughout between April 2003 and August 2004. The file was archived in error and no work performed until 2005 when the report from Dr. Flanagan, a psychiatrist, was obtained. This had been recommended by Dr. Baker in August 2002. Dr. Flanagan was of the view that the applicant was of impaired capacity and not capable of making decisions as a litigant. For the purposes of this application, I find that the applicant has been under a legal disability or lacked capacity within the meaning of the Guardianship and Administration Act 2000^[4] since 1993.^[5] This provides some valid explanation as to why proceedings were not issued until 2001.

11. [11]
    The delay since then is more problematical. The guardian is required, the defendants’ counsel submits, to exercise some responsibility and ensure that the action proceeds. That proposition finds support in recent cases.^[6] In other words, the dilatory conduct of the solicitors cannot be relied upon to avoid the consequences of delay.  In the circumstances of this case some explanation is called for by the guardian, George Francis Johnson.

6. (f)
   Whether the delay is attributable to the applicant (or her guardian), the defendant or both

12. [12]
    The defendants were told not to file the notice of intention to defend until the application to extend the time was made. The delay has in part been as a result of the guardian failing to press the solicitors to advance the matter.

7. (g)
   Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity

13. [13]
    No evidence was led in this respect

8. (h)
   Whether the litigation between the parties would be concluded by the striking out of the applicant’s claim

14. [14]
    The defendants argue that if this action is struck out, then it would be an abuse of process to commence a new action. If the applicant lacks capacity, the limitation of actions period is irrelevant. Her guardian could issue new proceedings the next day. The defendants say that that any new action should be struck out.^[7]  In that case, his honour Judge McGill reached the conclusion that “he did not think that the argument that the limitation period had not expired is conclusive in favour of the applicant plaintiff”.^[8]  His honour had discussed the various cases and reached the conclusion that if an action is struck out because of unwarranted delay, that any new action would be an abuse of process of the court so that any further action would be stayed.  His honour was dealing with a case in which the applicant was an experienced litigant who has made a conscious decision not to press on with the particular matter with which his honour was dealing.  It was a complex commercial case.

15. [15]
    His honour did refer to the Court of Appeal decision in Cummings v Davis^[9] where the majority held in relation to an application to dismiss for want of prosecution, that the fact that the limitation period had expired was a relevant consideration which favoured the plaintiffs, so as to tend against dismissing for want of prosecution.^[10]  It is unnecessary to decide the correct approach in the present case.  There is a question still to be decided:  can the limitation period be extended as there was a material fact of a decisive nature which did not come to the attention of the applicant until 2000?  The related issue is whether the limitation period has not run as the applicant has lacked capacity to sue since 1993. This application has proceeded on the assumption that the limitation period has not expired.  That finding does not necessarily favour the applicant.^[11]

1. (i)
   How far the litigation has progresses

16. [16]
    This was touched upon above. The proceedings have issued and no further steps have been taken in relation to pleadings.

10. (j)
    Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. 

17. [17]
    It is clear that the applicant’s present solicitors have failed to advance her case. The file was by accident put into archives after Mr. Catton left. Even after he returned, nothing of moment was done on the file for eight months. The solicitors did issue within 12 months after the nail was removed in September 2000. If a plaintiff or her guardian has not contributed to the delay, dilatory behaviour by the solicitors may be excused.^[12] 

11. (k)
    Whether there has been a satisfactory explanation for the delay

18. [18]
    The period between 1993 and 2000 can be explained away substantially because of the applicant’s mental condition. The explanation offered by the solicitors for the period 2001 and 2006 is somewhat unsatisfactory according to counsel for the defendants. There is some merit in this submission. At the date of the first hearing, there was no evidence from the guardian explaining his role in progressing the case. During 2005, there were communications between the solicitors, but the action was not advanced. This morning an affidavit from the guardian deposed:

“3. a)26 November 2001 – telephone call by me to my solicitors being advised about the present position of Denise’s claim;

1. b)
   30 January 2002 – letter received from my solicitors advising of an appointment for Denise to see Dr Keen;

1. c)
   8 June 2002 – letter received from my solicitors enclosing the report of Dr Keen and advising that a barrister had been briefed for advice;

1. d)
   5 August 2002 – telephone call by me to my solicitors to find out what was happening with Denise’s claim and being advised that barrister’s advice had no yet been received;

1. e)
   24 August 2002 – received letter from my solicitors advising that barrister’s advice had been received and that the barrister’s advice was that Dr Keen’s report should be given to Dr Baker for Dr Baker’s comments;

1. f)
   18 October 2002 – letter received from my solicitors advising that barrister’s advice had been received and that counsel was being briefed in relation to those reports;

1. g)
   7 January 2003 – telephone call to solicitors to advise as to changes of address and to discuss retainer agreement;

1. h)
   8 January 2003 – letter received from my solicitors enclosing a copy of the report of Dr Baker;

1. i)
   In January 2003 Denise and I moved to our current premises at Yaamba. From January 2003 to about July 2003, I had significant problems with my telephone line. I complained to both Telstra and to the telephone industry Ombudsman about the difficulties of having and receiving telephone calls on my telephone line. I was eventually informed by a Telstra technician, whose name I cannot recall, that they discovered that about 150 meters of the telephone line to my property was under water and that the water had penetrated the protective coating of the telephone wire and the telephone wire was therefore water affected. That telephone line should have been a priority telephone line because of Denise’s condition. After the defect in the telephone line was discovered, Telstra then moved our service onto a more secure telephone line and also gave to me a free one year line rental in compensation for the difficulties; 

1. j)
   From May 2003 until September 2003 I telephoned my solicitors on about three or four occasions on dates that I cannot recall, attempting to speak to the new solicitor who was handling Denise’s matter. However, I received no return telephone call;

1. k)
   20 September 2003- telephone call to my solicitors, but once again I was unable to speak to the solicitor handling Denise’s file and I left a message that I was not happy and I would like the solicitor handling Denise’s file to call me back and to tell me why he would never keep the appointments and keep moving them to a later date;

1. l)
   sometime in late 2003 I contacted the solicitors’ office again and spoke to someone whose name I cannot recall about whether the barrister’s opinion had been received and was informed that nothing had been received on the matter and they would contact me once the barrister’s opinion was received;

1. m)
   in February 2004 I once again contacted the solicitors about whether the barrister’s opinion had been received and was advised that nothing had been received in regard to Denise;

1. n)
   on or about 30 September 2004 I received correspondence from my solicitors advising that they had changed their name;

1. o)
   16 November 2004 – telephone call received from my solicitors requesting that Denise attend a psychiatric appointment with Dr Flanagan in February 2005;

1. p)
   14 February 2005 – telephone call to solicitors’ office regarding a new appointment with Dr Flanagan in March 2005;

1. q)
   On or about 10 May 2005 I received correspondence from my solicitors enclosing a copy of the report of Dr Flanagan and advising that they would send that report to the solicitors for the defendants and request that the defendants consent to an order to the effect that Denise had been suffering from a disability from 1993 to the present time;

1. r)
   7 November 2005 – telephone call to solicitors. Being advised that they were still awaiting counsel’s opinion regarding application fro leave to proceed.”

12. (l)
    Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

19. [19]
    The submissions of counsel for the defendants were that this was a case where specific prejudice has been suffered. One of the doctors, Dr. Aulent, cannot be found. Also, the second defendant has a limited recollection of the events. Dr. Aulent was only assisting the first defendant who continued to have an ongoing role in examining the applicant for some years after the initial operation. The second defendant has access to hospital notes and can refresh his memory. I am cognisant of the remarks of McHugh J. in Brisbane South Regional Hospital Board v Taylor.^[13]   I do not accept the submission that there could not be a fair trial.^[14]  The negligence alleged is discrete and clear.  The operation in 2001 clarified what had been missed for some seven years by the first defendant and others.  The regular complaints of the applicant were made to her general practitioner, Dr. Young, who referred her to the fourth defendant.  On most occasions, the first defendant was involved in the review.  This ongoing involvement will allow a clear presentation of the defendants’ case.

Findings

20. [20]
    One had to take into account all of the circumstances: the mental condition of the applicant, the clear history of the failure to properly diagnose her problem, the operation in 2001 which substantially remedied her symptoms, the attempts by the guardian to contact the solicitors to advance the action, the limited prejudice which would be suffered by the defendants.

21. [21]
    The provisions of rule 398(2) requires that the applicant, by her guardian, show that she should be exempt from the prohibition to proceed given that two years has expired since the last step. The legislature has reduced the time from three (formerly O90r9) to two years under the UCPR. The provisions of r 5 require the parties to act expeditiously. The latter has not been done. It has been submitted that r 5 should not be applied in a putative way.^[15]  I accept that submission. I am satisfied that there has been an adequate explanation for the delay.

Orders

1. The applicant /plaintiff have leave to proceed with her claim, not withstanding that no action has been taken in the proceeding for two (2) years.
2. The applicant/plaintiff re-list the application filed 17 September 2001 for hearing within fourteen (14) days of the receipt of the report of a psychiatrist obtained by the respondents from a panel of three (3) psychiatrists provided by the respondents/defendants to the applicant/plaintiff.
3. In the event the parties agree that the said application is not required, then:

1. a)
   the respondent/defendants file and serve their respective defences within 28 days of the date of any order in respect of the said application or agreement referred to above;

1. b)
   the respondent/defendants deliver, within 28 days of the date of any order in respect of the said application or agreement referred to above, a panel of orthopaedic specialists to the applicant/plaintiff for independent medical review;

1. c)
   the applicant deliver her statement of loss and damage, list of documents and any further expert medical reports within a further 28 days thereof;

1. d)
   the respondents deliver their statements of expert and economic evidence and list of documents within a further 28 days thereof.

4. 4.
   The respondent/defendant’s cross application be dismissed.

5. 5.
   The parties have liberty to apply on four business day’s notice to the other party.

6. 6.
   The applicant/plaintiff pay the respondent/defendants’ costs of and incidental to the applicant/plaintiff’s application and the respondent/defendants’ application (including the costs occasioned by the by the adjournment on 24 January 2006) in any event.