Bevan v South Coast Regional Health Authority
[2005] QSC 18
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- Unreported Judgment
- Bevan v South Coast Regional Health Authority[2005] QSC 18
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Bevan v South Coast Regional Health Authority[2005] QSC 18
Bevan v South Coast Regional Health Authority[2005] QSC 18
SUPREME COURT OF QUEENSLAND
CITATION: | Bevan v South Coast Regional Health Authority & Ors [2005] QSC 018 |
PARTIES: | SHARON ANNE BEVAN (plaintiff) v SOUTH COAST REGINIOAL HEALTH AUTHORITY (first defendant) AND KENNETH STEIN (second defendant) AND DERYCK CHARTERS (third defendant) |
FILE NO/S: | BS694 of 2003 |
DIVISION: | Trial Division |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | Supreme Court, Brisbane |
DELIVERED ON: | 17 February 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 November 2004 |
JUDGE: | Moynihan J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – TIME – leave to take a new step in an action pursuant to rule 389 of the Uniform Civil Procedure Rules – striking out for want of prosecution Uniform Civil Procedure Rule 1999 (Qld), r 389 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Cooper v Hopgood and Ganim [1999] 2 Qd R 113; Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd (No 2) (1998) 2 Qd R 551; Tyler v Custom Credit Corporation Ltd & Ors [2000] QCA 178; Vlies v The Commonwealth of Australia [2004] QSC 404 |
COUNSEL: | Mr L A Stephens for the plaintiff Mr J A McDougall for the first and third defendant |
SOLICITORS: | Halliday & Trembath Solicitors for the plaintiff Tress Cox Lawyers for the first and third defendant |
- MOYNIHAN J: The plaintiff seeks leave pursuant to Uniform Civil Procedure Rules 1999 (Qld) rule 389 to take a step in this action; no step has been taken in the action, for more than a year. The first and third defendants apply to have it struck out for want of prosecution.
- The action arises out of the birth and subsequent death of the plaintiff’s child, she was born in the first defendant’s Southport Hospital. The second and third defendants were employed by the first. The second defendant was the senior house officer on duty at the time of the birth. The third defendant was a specialist obstetrician.
- The second defendant had resigned and returned to the UK shortly after the events in issue and before the commencement of the action. He has only recently been served and become aware of the action.
- The negligence case pleaded against the defendants essentially is that it was foreseeable that the plaintiff would have a difficult labour and delivery. Delivery by caesarean section was indicated from early in the pregnancy as the appropriate means of delivery. This course was not followed. Signs of foetal stress which became apparent during labor were ignored. The child was delivered by emergency caesarean section performed by Dr Larkin the director of obstetrics at the hospital.
- The plaintiff went into labour on 18 May 1990 and gave birth on 19 May 1990 after a long labour. As a consequence of complications of the birth process the child was deprived of oxygen and was born with the umbilical cord around her neck. She sustained severe irreparable brain damage and died on 7 June 1990. The plaintiff also suffered injury.
- The plaintiff first consulted a solicitor, Mr Hockey, shortly prior to the child’s death on 7 June 1990. She did so at the suggestion of family members. This consultation was the only time she dealt with Mr Hockey face to face, all subsequent contacts were by telephone or mail.
- Mr Hockey continued to act as the plaintiff’s solicitor albeit in a fairly desultory way until January 2004 as is indicated by the following chronology; it is not exhaustive.
September 1989: | The plaintiff learns that she is pregnant. |
Jan/Feb 1990: | The plaintiff and her family move to Labrador, Queensland. Pre-natal visits to Southport Hospital. |
18 May 1990: | The plaintiff is admitted to the hospital as an in-patient and gives birth. |
7 June 1990: | The child dies. The plaintiff consults a solicitor, Hockey shortly prior to this and retains him. |
22 March 1991: | Hockey instructs counsel in Southport to advise. |
16 December 1991: | Advice from counsel. |
14 October 1992: | Legal aid is refused. |
5 May 1993: | Counsel provides Hockey with a draft writ. |
12 May 1993: | Writ issued. |
19 May 1993: | Limitation period expires. |
5 May 1994: | Writ served on first and third defendants. |
10 May 1994: | First and third defendants appear. |
25 March 1997: | Plaintiff gives notice of intention to proceed. |
2 May 1997: | Statement of claim delivered to first and third defendants. |
2 December 1997: | First and third defendants deliver defence. |
24 June 1998: | First and third defendants’ solicitors write to Hockey for a statement of loss and damage. |
13 October 1998: | Instructions from Hockey to Counsel. |
25 January 1999: | Advice from Counsel concerning non-party discovery. |
2 March 2000: | Notice of change of solicitor for first and third defendants. |
7 March 2000: | Plaintiff gives second notice to proceed. A letter from Hockey to first defendant’s solicitors requests disclosure. |
13 March 2000: | Letter from defendants’ solicitors to Hockey consenting to release of medical records. |
24 March 2000: | Medical records provided. |
28 June 2000: | Notes of a conference between Dr Clarrie Dietman (expert witness) and Hockey. |
15 August 2000: | Note to Hockey from Counsel. |
23 May 2001: | Notes of a further conference between Dr Clarrie Dietman and Hockey. |
15 November 2001: | Letter from Hockey to first defendant’s solicitors re arrangement for a medical expert to review the medical records re liability. |
- In early 2004 the Queensland Law Society intervened because of Hockey’s defalcation and misconduct, his practising certificate was cancelled and arrangements were put in train for other solicitors to take over active files.
- The chronology then continues:
23 April 2004The plaintiff’s current solicitors receive the file. There were no medico legal or other expert reports, no employment history. The correspondence and phone records were scant.
- The plaintiff’s current solicitors took up the conduct of the action, apparently on a speculative basis.
| 28 April 2004: | Letter from plaintiff’s current solicitors to first and third defendants’ solicitors about state of proceedings. |
| 20 May 2004: | Notice of change of solicitors. |
| 20 October 2004: | Plaintiff applies for leave to proceed. |
- In Tyler v Custom Credit Corporation Ltd & Ors [2000] QCA 178 Atkinson J listed a useful checklist of considerations in applications such as these.
“(1)how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
- how long ago the litigation was commenced or causes of action were added;
- what prospects the plaintiff has of success in the action;
- whether or not there has been disobedience of Court orders or directions;
- whether or not the litigation has been characterised by periods of delay;
- whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
- 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;
- whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
- how far the litigation has progressed;
(10) whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed if responsible is regarded as more difficult to explain than delay by his or her legal advisers.”
- The events in issue occurred almost 15 years ago. Hockey had been retained before the child died. The plaintiff retained Hockey after the birth and before the death of her child. The writ was issued seven days before the expiration of the limitation period. The statement of claim was delivered some years later, seven years after the events in issue.
- The action is not yet ready for trial although that apparently could be achieved fairly shortly, subject to the considerations subsequently canvassed.
- The plaintiff has reasonable prospects of success in her action. Her first child was born on 4 April 1989. He was delivered by emergency caesarean section due to foetal distress.
- The doctor responsible for that delivery advised her to have a caesarean delivery for her second child. He told the plaintiff he would forward her records to the Southport Hospital.
- When she commenced to attend the Southport Hospital the second defendant proposed a delivery by trial of labour.
- On that and subsequent visits the plaintiff expressed concerns about the birth and method of delivery. She was reassured and told that she would be closely monitored and at the “least sign” of trouble the trial by labour would be abandoned and there would be delivery by caesarean section.
- Other indications of risk indicating the potential for complications and of the development of complications after the plaintiff went into labour are pleaded. It is alleged they were ignored or there was not a sufficiently prompt response. Delivery by caesarean section was unduly postponed.
- It cannot be said that there has been disobedience to court orders or direction. It can however be said that the provisions of the rules as to the steps in progressing an action to resolution in a timely way have largely been ignored. I note that since 1 July 1999 the undertaking to proceed expeditiously implied by r 5(3) has been in effect.
- The litigation has been permeated with delay. The delay is largely attributable to the dilatoriness, incompetence and neglect, of the solicitor originally retained by the plaintiff.
- The terms of Hockey’s retainer are not altogether clear. Legal aid was refused on 14 October 1992. Hockey asked the plaintiff for money on occasions and the applicant paid him some $750 in total.
- The plaintiff deposes that when she complained, as she “sometimes did” about lack of progress Hockey indicated that he was busy with other matters in which his fees were being paid and that these had priority. This made the plaintiff apprehensive about complaining
- It is not clear what would have happened if Hockey had asked for more money. The plaintiff may have been able to raise it or for example, have entered into an arrangement with Hockey or some other solicitor to progress the action on a speculative basis.
- No doubt difficulty in locating the second defendant was a consideration in the progress of the litigation but the first and third defendants had been served by 5 May 1994.
- In any event it does not seem to have been too difficult to locate him. The present solicitor for the first and third defendants (there have been a number of changes of solicitors) located the second defendant by an email to the U.K. to the Medical Council on 12 November 2004, wrote to him on that day and telephoned him on the 19th of the month.
- It is true that the solicitors for the first and third defendants were content to let the action proceed at Hockey’s pace but the plaintiff had carriage of the action.
- It is necessary to consider the extent to which the delay by the plaintiff’s former solicitor is to be sheeted home to her.
- In Vlies v The Commonwealth of Australia [2004] QSC 404, McMurdo J considered the plaintiff’s role in delay by the solicitors retained in the action. He rejected their submission to the effect that a delay which puts a fair trial at risk is not so important when it is caused by the lawyers rather than the client. He agreed with the remarks of Derrington J in Cooper v Hopgood and Ganim [1999] 2 Qd R 113, 124, that incompetence of the plaintiff’s lawyer may not always provide a convincing answer because the circumstances may require the plaintiff to engage lawyers who would prosecute the case.
- I sympathise with the plaintiff who relied on Hockey. She deposes that during the “entire period of my involvement” with the solicitor originally retained she received very few written reports as to the progress of the claims. She kept him informed of her contact details and responded promptly to his requests for information and documentation.
- As I said earlier when the plaintiff “sometimes” complained she was put off and was “apprehensive about complaining”. She did not seek to pursue any avenue of complaint or seek advice from another solicitor.
- Those things said the delay in progressing the action was inordinate. The plaintiff was exceptionally forebearing in her tolerance of the delay when it was in her interest to have the matter resolved expeditiously. She took no steps to pursue any avenue of complaint and did not seek advice from another practitioner. The delay has put a fair trial of the action at risk.
- The general consideration about the effect of delay on the quality of evidence identified by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 in the well known passage at 551 apply here:
“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 (22), “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly it must often happen that time will diminish the significance of a known act or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A conflict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
- There are a number of considerations which arise in the specific circumstances of this case. Dr Larkin, the first defendant’s Director of Obstetrics at the time, he delivered the baby is dead. His notes are available but he has not given a statement.
- The attending midwife has no independent recollection of the events surrounding the delivery.
- The second defendant was the senior house officer on duty at the time of the birth and is the party against whom the most weighty allegations are made. As I have said he did not know of the action until contacted in November 2004. He was able “generally” to recall the incident but could not recall details.
- It is true there are contemporaneous medical records. The difficulties inherent in relying on such evidence when a witness has no independent memory of the matters spoken of in the statement were referred to in Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd (No 2) (1998) 2 Qd R 551 at 557 by Pincus JA. Comparable considerations arise here, the weight of the notes is considerably diminished in those circumstances.
- A major component of the plaintiff’s damages claim is for nervous shock. It appears that no medical reports have been obtained about this condition other than a report by Dr Crittenden, a psychiatrist. That is dated 27 September 2004 and followed an examination on 28 August 2004; 14 years after events giving rise to the action.
- That time lapse casts a shadow over disentangling the effect of the birth from subsequent events in the plaintiff’s life. This makes establishing a reliable factual basis for any opinions expressed in respect of that issue by Dr Crittenden, or any other doctor, a hazardous exercise.
- In the circumstances of this case in my view, the prevailing, consideration is the inhibiting effect of delay in prosecuting the action on a fair trial.
- A subsidiary consideration is that the plaintiff did no service to her intentions not taking steps to have the matter resolved in a timely way by her solicitor or by retaining another solicitor.
- I therefore refuse the application for leave to proceed and dismiss the action.