Raabe v Brisbane North Regional Health Authority
[2005] QSC 41
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
- Raabe v Brisbane North Regional Health Authority[2005] QSC 41
- Add to List
Raabe v Brisbane North Regional Health Authority[2005] QSC 41
Raabe v Brisbane North Regional Health Authority[2005] QSC 41
SUPREME COURT OF QUEENSLAND
CITATION: | Raabe v The Brisbane North Regional Health Authority and Ors [2005] QSC 041 |
PARTIES: | PATRICIA ANN RAABE (BY HER LITIGATION GUARDIAN SHANE PARRETT) |
FILE NO/S: | SC No 1762 of 1994 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 10 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 November 2004 |
JUDGE: | Holmes J |
ORDER: | 1. The defendant’s application is allowed in part. 2. The parties are to make submissions as to the final form of the orders. |
CATCHWORDS: | PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the proceedings were commenced over ten years ago - where no limitation period because plaintiff under a disability – where plaintiff had not recently failed to take a step in the proceeding and had not failed to comply with an order of the court- where third and fourth defendant deceased and second defendant unable to be located - where claim for damages for personal injuries in battery, negligence and breach of contract in conduct of appendectomy and hysterectomy – whether, in the exercise of the court’s inherent jurisdiction, proceedings should be struck out for want of prosecution – alternatively, whether proceeding should be stayed as an abuse of process PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – JUDGEMENTS AND ORDERS – OTHER MATTERS – Supreme Court of Queensland Act 1991 (Qld), s 101 – Uniform Civil Procedure Rules 1999 (Qld), s 321 - Whether adjourned mediation operates to stay application. Limitations of Actions Act 1974 (Qld) Supreme Court of Queensland Act 1991 (Qld), s 101 Uniform Civil Procedure Rules 1999 (Qld), r 321 Birkett v James [1978] AC 297 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cooper v Hopgood & Ganim [1999] 2 Qd R 113 Cummings v Davis (2000) QSC 158; on appeal at [2001] QCA 293 Hunter v Chief Constable of West Midlands Police [1982] AC 529 Jago v District Court of New South Wales (1989) 168 CLR 541 Quinlan v Rothwell [2002] 1 Qd R 647 Raabe v Brisbane North Regional Health Authority [2003] QSC 359 Raabe v Brisbane North Regional Health Authority [2000] QSC 257 Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (1992) 175 CR 218 Turvey v Steindl [1997] QSC 2 Walton v Gardiner (1993) 177 CLR 378 Williams v Zupps Motors Pty Ltd (1990) 2 Qd R 493 |
COUNSEL: | K Fleming QC with J McDougall for the applicant J Miles for the respondents |
SOLICITORS: | Nicholsons Lawyers for the applicant TressCox Lawyers for the respondents |
- This application, to strike out the plaintiff’s claim for want of prosecution, is brought on behalf of the first, fourth, fifth and sixth defendants. The action was begun in 1994 in respect of events occurring in 1986. Because the plaintiff was, and is, under a disability, the expiry of the usual limitation period did not bar her claim.
Background
- In 1986, when the plaintiff was fourteen, the fifth and sixth defendants, respectively a surgeon and paediatric registrar, performed an appendectomy and hysterectomy on her at the Royal Children’s Hospital, which fell under the auspices of the first defendant. The plaintiff’s mother, Mrs Gent, (named as second defendant in the action) gave her written consent to the procedures on the plaintiff’s behalf. The fourth defendant, Dr Latham, was the deputy medical superintendent of the hospital at the time of the operations. He had a number of consultations with the plaintiff and her mother between 1984 and 1986, in the course of which the prospect of hysterectomy was discussed; it seems probable that it was he who arranged the surgery.
The history of the litigation
- On 4 November 1994, the plaintiff issued a writ of summons against seven defendants, claiming damages “for personal injuries in battery, negligence and breach of contract” for the two operations, which, the endorsement said, were “performed without the plaintiff’s lawful and/or informed consent”. The writ was served on the first, fourth, fifth and sixth defendants on 8 March 1995. What follows in this paragraph concerns only those defendants. They entered an appearance on 29 March 1995. In the interim, the plaintiff’s solicitors provided their solicitors with a copy of a draft statement of claim. An amended statement of claim was delivered to them on 25 May 1995. On 21 June 1995 those defendants delivered a request for particulars, which was not answered until August 1996, and delivered their defence on 16 December 1996. In January 1997, they delivered a list of documents and requested that the plaintiff serve a statement of loss and damage. After two reminders, the plaintiff’s statement of loss and damage was delivered to them on 18 April 1997. On 8 July 1997 their solicitors wrote to the plaintiff’s solicitor requesting delivery of the plaintiff’s list of documents. A draft unsigned list was provided with a promise that the executed documents would follow, but nothing further arrived.
- On 12 July 2000, I heard an application by the plaintiff for leave to proceed against all defendants[1]. The third defendant, Ms Dignan, a psychologist who had assessed the intellectual capacity of the plaintiff, had died in 1990, some years prior to the issue of the writ, and no attempt had been made to serve her personal representatives. There was nothing at that time to show that Mrs Gent, the second defendant, had ever been served (although correspondence has since come to light which suggests that she was served with the writ and nothing further). The seventh defendant, Dr Scruton, a general practitioner who, it was said, gave advice relevant to the decision to perform the operations, had delivered her defence in July 1995 and had received nothing further from the plaintiff by way of disclosure or statement of loss and damage. I refused leave to proceed against those defendants and dismissed the action against the seventh defendant for want of prosecution, those orders being made on 31 July 2000. However, I gave leave to proceed against the first, fourth, fifth and sixth defendants.
- Following those orders, the plaintiff delivered a statement of loss and damage on or about 14 September 2000 and a report of Dr Grey, a psychiatrist, dated 9 May 1994, in November 2000. In March 2001, an amended statement of loss and damage and copies of records from treating medical practitioners and other health professionals were delivered, as were some data from a Dr Attwood, a psychologist, who had in April 2001 tested the plaintiff’s intellectual capacities.
- In 2001, the plaintiff’s solicitors experienced difficulty in contacting her because she had separated from her violent ex-husband. He had been her litigation guardian in the action and had to be replaced. There was then some delay between September 2001 and May 2002 in identifying a suitable alternative. On 3 July 2002 the Registrar ordered the substitution of a new litigation guardian, Mr Parrett. The question then arose as to whether that order constituted a step in the action, two years having elapsed without any other step being taken. On 9 October 2003, the plaintiff made another application for leave to proceed and the defendants again made a cross application for striking out[2]. The application for leave to proceed was successful; Philippides J found it unnecessary to resolve the question of whether a step had been taken, since she considered leave ought in any case to be given. Her Honour dismissed the defendants’ cross-application, observing that there was “no further matter of prejudice which the defendants can point to, other than the fact that an additional three years or so has passed”[3].
- The plaintiff’s solicitor, Mr Brown, has filed an affidavit on this application in which he says that the plaintiff has now been examined by a Dr Grover, an obstetrician and gynaecologist. She has provided a report which has been furnished to the defendants’ solicitors. The plaintiff has also had a number of appointments with a Dr White, a psychiatrist specialising in the treatment of intellectually disabled persons, who gave his report in February 2004. It also was provided to the defendants. On 28 April 2004, the plaintiff’s second supplementary list of documents was served on the defendants’ solicitors and those documents of which copies were requested were provided on 18 May 2004.
- An amended statement of loss and damage was served in June 2004, and on 23 June 2004 a request for trial date was served upon the defendants’ solicitors. On 20 July 2004, some details and supporting documents in respect of claims for pharmaceuticals were provided to the defendants’ solicitors at their request; at the same time, the plaintiff’s solicitors repeated their request for completion of the request for trial date. After some further pressing of the request for trial date, a mediation took place in October 2004. It did not result in any settlement, and was adjourned.
The effect of the adjourned mediation
- It seems that the parties agreed to and took part in the mediation without filing a consent order as prescribed by s 101 of the Supreme Court of Queensland Act 1991. A consent order once filed is taken to be a referring order; it thus has the same effect as an order of the Supreme Court requiring attendance at mediation. Counsel for the plaintiff submitted that, notwithstanding the absence of a consent order, r 321 of the Uniform Civil Procedure Rules applied. It provides:
“Subject to an order of the court, if a dispute in a proceeding is referred to an ADR process, the dispute and all claims made in the dispute are stayed until 6 business days after the report of the ADR convenor certifying the finish of the ADR process is filed with the registrar.”
- Here the mediation was not finished: it had been adjourned to a date to be fixed. On that basis counsel submitted that the proceeding was stayed, and the defendants were not entitled to proceed with their application. I do not accept that submission. It seems to me that the mediation was an informal arrangement not governed by s 101, and there is nothing that could be described as a referral. Consequently r 321 has no effect. If I were wrong about that, I would in any event exercise the discretion which exists under r 321 to order that any such stay be lifted.
The pleadings & particulars
Battery & lack of consent
- The amended statement of claim is a lengthy document; I will confine myself to those parts which concern the first, fourth, fifth and sixth defendants. It alleges that the appendectomy and hysterectomy were performed on the plaintiff “without her lawful and/or informed consent” and amounted to a battery committed on her by the first defendant. The basis of the allegation of lack of consent is not further specified in the pleading. In the circumstances of this case, a number of conjectures as to what is intended arises: that the plaintiff was capable of giving consent, but was not properly informed, so that no real consent was given; that the plaintiff was not capable and that her mother’s consent was ineffectual because she was not acting in her best interests; or that the plaintiff was not capable and it was not within her mother’s power to consent, the sterilisation procedure instead requiring a court order. (These issues are raised subsequently in the pleading in the context of negligence.)
- It does not seem that any formal request for particulars of the allegation of battery was made, but in a letter of 26 March 2001 the plaintiff’s solicitors set out the circumstances as to the plaintiff’s lack of “lawful and/or informed consent”. They asserted in that letter that the plaintiff’s age made her legally incompetent; that her immaturity prevented her from understanding the nature and ramifications of the surgery; that she had been made pregnant by a member of her family and suffered a miscarriage; that she had been “inveigled into the surgery procedure on the false pretence of appendectomy”; that she should have had independent legal and medical opinion “given her especially duressed [sic] condition”; and that she was “generally in a condition of mental disadvantage, factual ignorance, legal incompetence and physical duress”. Those particulars do little to identify what underlies the allegation of lack of lawful or informed consent. The reference to incompetence suggests a disavowal of the first of the possible bases to which I have referred, that the plaintiff was capable of consenting but was not properly informed; but the allegation that she was “inveigled” suggests the contrary. The ambiguity is completely unsatisfactory, but it seems at least in part attributable to the defendants’ lack of insistence on any precision as to the issues raised.
Negligence, informed consent and the plaintiff’s incapacity
- Alternatively, it is said that the defendants or one or some of them were guilty of negligence in a number of respects. One set of allegations, summarised, is that the defendants failed to inform the plaintiff of the nature and effect of the hysterectomy, particularly having regard to its irreversible effect and her intellectual impairment, and failed to ensure that she understood the nature and consequences of the operations and was able to and did give informed consent to them. The operations were performed, it is said, when the defendants knew or ought to have known that the plaintiff was not giving her informed consent. That sits rather oddly with the assertion of legal incompetence in connection with the battery allegation, and with another group of particulars of negligence, which, although not expressed as alternative, alleges negligence in the performance of the operations when the defendants knew or ought to have known that the plaintiff suffered from an intellectual impairment and was incapable of understanding the effect and nature of the operations, including the irreversible nature of the hysterectomy. There is an associated general allegation that the defendants failed to “be aware of the special nature of the plaintiff’s personal circumstances”.
- Further particulars provided in response to the defendants’ request do not shed much light on the pleading to the effect that the defendants should have ensured the plaintiff’s informed consent, although it is said, in that connection, that her intellectual impairment was such as to require her to attend a special school, but that a 1984 assessment was that “she did not meet the criteria of being ‘severely intellectually handicapped’”. That might underlie a contention that the plaintiff did have the capacity to consent to the procedures, although in other respects the pleadings and particulars suggest the contrary. The “plaintiff’s personal circumstances” are identified as her position as an intellectually impaired child, and it is said that the defendants ought to have known of her intellectual impairment because of their consultations with and examinations of her.
Negligence & the role of the plaintiff’s mother
- Other allegations in the statement of claim are directed to the role of the plaintiff’s mother in giving consent. It is said that the defendants failed to investigate the relationship between the plaintiff and her mother, and performed the operations with actual or constructive knowledge, firstly, that the plaintiff’s mother in consenting to them was not acting in the plaintiff’s interests, given a history of sexual abuse by members of her family, known to both the plaintiff’s mother and the first defendant, which had occurred while the plaintiff was under her mother’s care and control; and secondly, that the plaintiff’s mother had applied duress to her to have the operations performed. It is also alleged in this connection that the defendants performed the operations knowing that the plaintiff was not represented by an independent person to “assist her in giving informed consent”.
- By way of particulars of what investigations of the relationship and her mother ought to have been made, it is said that the level of care and supervision provided by the plaintiff’s mother, the reliability of her information about behavioural problems and difficulties the plaintiff had at school, and the reason for her request for a hysterectomy, as opposed to other forms of fertility control, ought to have been investigated, as should the question of whether other factors militated against accepting the view of the plaintiff’s mother that a hysterectomy was to be preferred. Those other factors are said, rather opaquely, to include “the outcome and reports resulting from referrals by various medical practitioners to the Department of Family Services, child and sexual abuse units”.
- A more direct response is given in relation to the allegation that the defendants knew or ought to have known that the plaintiff’s mother was not acting in her best interests. It is said that the fourth defendant, Dr Latham, knew or had suspicions about sexual abuse of the plaintiff by her mother’s de facto husband, which had been confirmed on his referral of the plaintiff to a paediatrician, Dr Eckert, whose examination indicated previous sexual abuse.
- Particulars were sought of the duress allegedly applied by the plaintiff’s mother. They were refused, on the clearly erroneous ground that that was not in issue between the plaintiff and these defendants. But to a request for particulars of the facts and circumstances by which the defendants knew or ought to have know that the plaintiff’s mother had applied duress to her, this answer is given: that they “include” the fact that her attendance at the hospital for an appendectomy when it was not necessary or in her interests “was merely an excuse upon which the second defendant fraudulently induced the plaintiff to attend the hospital for the real purpose of having the hysterectomy performed”. As particulars of the defendants’ means of knowledge of duress, this is sheerest nonsense.
- The answer to a request for particulars of how the defendants knew or ought to have known the plaintiff was not represented by an independent person to assist her in giving her consent, twists away from the original pleading (which suggests that the complaint is directed to the quality of the plaintiff’s consent) to whether consent was properly given by her mother on her behalf. It is said that “in consideration” of allegations elsewhere in the pleadings and particulars (as to duress, suspicions of sexual abuse, and the defendant’s failure to investigate the information provided by the plaintiff’s mother) the second defendant “did not have or was not in a position to give consent on behalf of the plaintiff for the performance of the said operations, such operations not being in the best interests of the plaintiff”. The particulars seem, in short, to be of a different allegation from that which is pleaded.
Negligence - failure to meet requirements
- There is a further complaint in the statement of claim that the defendants performed the operations knowing that the guidelines and policy statements of the hospital in relation to sterilization of a person suffering intellectual disabilities had not been followed. A request for particulars of the relevant policies and guidelines was met by an assertion that the allegations in the pleading sufficiently informed the defendants. One’s suspicion is aroused that the drawer of the pleadings could not identify any relevant policy or guideline but rather hoped that something might turn up. At any rate, the reluctance to particularise suggests that this allegation has no basis in reality. Finally, it is said that the defendants were negligent in performing the hysterectomy with real or constructive knowledge that it should not be undertaken “without the consequences and effects of the operation on the plaintiff being referred, addressed and determined by an appropriate Court of law”.
Breach of contract
- The contract pleading is to the effect that the first defendant agreed to treat and advise the plaintiff with due care, which would include having regard to her personal circumstances and family background and ensuring that she was properly appraised of the procedures to be undertaken and also that the guidelines of the hospital would be followed in relation to the surgery. It is then alleged that those matters in themselves represented a breach of the agreement; but presumably what was intended was an allegation that these terms were breached, possibly by reference back to the earlier particulars of negligence.
Causation and Damage
- The pleading as to causation in negligence is scant indeed. No specific link is pleaded between the alleged failure to obtain proper consent and the plaintiff’s having undergone the operations. Nor is it directly asserted against these defendants that the procedures were not in the plaintiff’s best interests. It is simply alleged that by reason of the matters pleaded the “plaintiff was injured and is unable to procreate and has thereby suffered loss or damage”. Her damage is pleaded as infertility, anxiety, nervous shock and scarring; it is said that she has endured pain and suffering, lost income, required gratuitous assistance and may require further psychological counselling. The claim for damages includes exemplary damages.
The defence
- I should add, for the sake of completeness, that the defence filed in 1996 consists, as was then permissible, almost entirely of denials and non-admissions, with admissions only of formal matters. It advances nothing.
The loss of evidence
- The unsuccessful mediation took place on 26 October 2004. In the meantime, however, Dr Latham had died, on 20 October 2004. Ms Eden, the solicitor with conduct of the action on behalf of the defendants, obtained a statement from Dr Latham in June 1999. With the assistance of the plaintiff’s medical records he was able to recall his involvement with both the plaintiff and her family. That was in contrast to the two surgeons involved in the matter, neither of whom had any independent recollection of the plaintiff, and Dr Scruton, the former seventh defendant, who had no recall of the events and could not locate her records. Ms Eden says that when she took Dr Latham’s statement she did not explore with him medical attitudes to sterilization of intellectually disabled girls as at 1986. Ms Harris, a partner of the firm which acts for the defendants, says that she became aware of Dr Latham’s illness in mid-September 2004 and spoke to him then. At that time he was extremely ill and receiving pain relief for the cancer from which he suffered; the medication caused him hallucinations. Not surprisingly, no attempt was made to obtain any further statement from him.
- As to the circumstances of other prospective witnesses, Ms Eden says that she has not been able to find the plaintiff’s mother, Mrs Gent, who was originally the second defendant. In 1995, the solicitors for the parties were informed by Mrs Gent’s then solicitors that she was 49 years of age, was diabetic, had suffered a stroke and could not work. She was then living in Western Australia. Recent inquiries there have been unable to locate her: the firm of solicitors who had acted for her no longer have any record, and she is not listed on the federal electoral roll for Queensland or Western Australia, although there is no record in Western Australia of her death. Ms Eden says that she was able to identify another possible witness, Dr Eckert (the paediatrician who had examined the plaintiff), but when contacted in November 2004 he was either unable or unwilling to assist.
The remaining contemporary evidence
- Certain records of the Royal Children’s Hospital have been disclosed to the plaintiff. They include letters from Dr Latham to doctors involved with the plaintiff in some way, including Dr McGuckin, the fifth defendant, and Dr Scruton. In those letters, Dr Latham speaks of his suspicion when he first saw the plaintiff in 1984 that she had been sexually abused by her mother’s former de facto husband, and of his reference of her to various agencies in that regard. In April 1985, according to the correspondence, the plaintiff was examined by Dr Eckert. The results of the examination did not dispel Dr Latham’s impression that the plaintiff had suffered from sexual abuse.
- In 1986, Dr Latham wrote to Dr McGuckin seeking advice and explaining that the question of the plaintiff’s personal hygiene had been discussed at length with her mother and Dr Eckert and that Mrs Gent preferred hysterectomy to the plaintiff’s lifetime use of Depo-Provera. Dr Latham goes on in that letter to give Ms Dignan’s opinion that because of reduced intellectual function the plaintiff would not be able to take responsibility or control of her fertility and would not be able to care for a child. He also gives a view (either his own or Ms Dignan’s) that the plaintiff is incapable of giving informed consent, and he expresses his own perception that a hysterectomy would be in the plaintiff’s interests. In a 1988 letter setting out the plaintiff’s case history, he gives similar reasons for the performance of the surgery, referring to Ms Dignan’s assessment of the plaintiff’s intelligence as low, prospective difficulties in the plaintiff’s control of her fertility and in managing her personal hygiene, and her parents’ preference for a hysterectomy over long-term Depo-Provera use.
- Other hospital documents include a consent form signed by the plaintiff’s mother and a note of the surgery, which records that both appendix and uterus were normal; conference notes from the Royal Children’s Hospital for three meetings in December 1984, February 1985 and April 1985; a case review note from the SCAN team dated 27 February 1985; notes from the Social Work Department from 11 December 1984 and 18 February 1985; and a copy of the Social Work Department closing summary of August 1988. The case notes deal largely with allegations of sexual abuse of the plaintiff by juvenile male relatives as well as her mother’s former de facto husband; they pre-date the surgery and do not discuss the prospect of it.
The plaintiff’s expert evidence on liability issues
- The plaintiff has obtained reports from three obstetrician/gynaecologists, Dr Grover, Professor Bennett and Dr Adam. Dr Grover did not qualify as a specialist until 1990, and concedes difficulty in commenting on practice in the mid 1980’s. In her reports of May 2002 and October 2003, she examines the reasons for the performance of the hysterectomy on the plaintiff and gives as her conclusions that the records do not show major problems with management of menstrual hygiene; that other means of contraception such as Depo-Provera or oral contraceptive pills could have been used; and that so far as the plaintiff had exhibited some behavioural problems, there was no evidence surgery would have resolved them. She also suggests, perhaps outside her area of expertise, that the plaintiff should not have been regarded as having “severe intellectual disability”.
- Dr Grover goes on to consider the records at the Royal Children’s Hospital in Melbourne of hysterectomy in the 1980’s, noting that up to 1984 there was no documentation on the records as to the need for any legal opinion or authority, as opposed to two instances in 1985 and 1988 in which there was some unspecified “communication to clarify the legal issues” and obtaining of guardianship approval. She concludes that there was a change in attitude as to the legality of sterilising minors. She also observes that from 1985 in South Australia and from 1987 in New South Wales, legislation existed to regulate sterilisation procedures in intellectually disabled young women. She extrapolates from that to suggest that the issue “was already being widely discussed and of wide concern”.
- Professor Bennett says that during his practice in the United Kingdom between 1976 and 1983, he and his colleagues would not perform irreversible surgery unless there were no alternatives, and sought advice in such cases from the medical defence union. On his return to Australia in January 1983, he noted that there were discussions going on in NSW which resulted in legislation. He agrees with Dr Grover’s identification of the relevant issues.
- Dr Adam examined the plaintiff in January 2001, finding no abnormality in her reproductive organs apart from the removal of the uterus. His report is curious because there are lines drawn through parts of it, possibly with an intention to remove anything which might be considered beyond his expertise; for example, a view that the plaintiff would not have been able to care for a family. But one of the portions through which a line has been drawn is Dr Adam’s expression of his belief that the action taken was “appropriate for the day”.
- The plaintiff was also assessed by a psychologist, Dr Attwood and a psychiatrist, Dr White. Dr Attwood first assessed the plaintiff in 2000. On his testing the plaintiff’s overall intelligence quotient was 63; a level of intellectual disability which he describes as “within the mild range”. In his report, he gives his view that the plaintiff’s intellectual functioning “would not preclude her” from caring for a child. He goes on to say that strategies to assist persons with a mild level of intellectual disability to manage person hygiene “would have been available” during the 1980’s. In 2002, when the question was raised as to whether a new litigation guardian was needed, Dr Attwood performed another assessment of the plaintiff using an alternative intelligence scale. Over various tests her performance ranged between that comparable to a child of seven and one of nine and a half years. He expressed serious doubt that the plaintiff had the intellectual capacity to give instructions.
- Dr White appears not to have found Dr Attwood’s test results compelling. In his report, he says that it is essential to a diagnosis of intellectual disability that there be disabilities in a range of functional capacities, including those “for communication, for self-care and for health provision”. Since, he said, he saw no sign of any reduction in those capacities, he could find no evidence that supported a current diagnosis of intellectual disability.
The application for dismissal
- The defendants now bring this application, maintaining that the court should, in the exercise of its inherent jurisdiction, dismiss the action for want of prosecution. This was so, it was argued, notwithstanding that the plaintiff had not recently failed to take a step, nor had she failed to comply with any order of the court. Rather, it was said, there now existed no prospect of a fair trial because of the loss of evidence. Dr Latham, the only witness with any independent recollection of the events was dead, as was Ms Dignan, the psychologist who had been the third defendant. She had given a report which was still available, but the benefit of her oral evidence about it was lost. The plaintiff’s mother could not be found. Dr Scruton could not locate her records. It was significant, it was submitted, that the plaintiff’s claim included a claim for aggravated and exemplary damages, the determination of which would, of course, depend on the intention and attitude of the doctors involved.
- In further written submissions, the defendants shifted ground somewhat from seeking dismissal for want of prosecution, putting the argument more in terms of an application for a stay of the action as an abuse of process, and referring to cases decided in that context. Walton v Gardiner[4] was cited for the proposition that proceedings could constitute an abuse notwithstanding the absence of any improper purpose on the part of the person instituting them. This extract from the judgment of Deane J in Jago v District Court of New South Wales[5] , referred to with approval in Walton[6] , was emphasised:
“The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process.”[7]
- The defendants also placed particular reliance on this passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor[8]:
“Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties.”
Inherent jurisdiction
- The absence of any contemporary default does not seem to be a bar to an application brought in the court’s inherent jurisdiction. In Cummings v Davis[9], the primary judge had dismissed the plaintiffs’ action for want of prosecution, notwithstanding that they had not failed to take any step presently required of them, nor failed to comply with any order of the court. In fact, it was the defendants who were currently in default under the rules, having failed to deliver a defence. But the primary judge found there was a substantial and inexcusable delay (10 years between the arising of the cause of action and the application) and a 14 month period of inactivity after delivery of an amended statement of claim, for which he considered the plaintiffs responsible. The delay was, he concluded, likely to have caused prejudice to the defendants.
- On appeal, the order was set aside, not for any want of jurisdiction, but because, on the majority view, the primary judge’s attribution of responsibility for the 14 months delay to the plaintiffs was unwarranted; the defendants had previously agreed to delivery of an amended statement of claim without raising any question of prejudice; and the dismissal of the plaintiffs’ proceeding would permanently deny them the opportunity to pursue the claim. Thomas J, in the minority, disagreed that there had been any miscarriage of discretion, taking the view that the primary judge had correctly identified the principal cause of delay as the plaintiff’s inactivity. Importantly, for present purposes, he said this:
“The fact that the appellants were not currently in default under any particular rule of court is not a pre-requisite to a striking-out”.[10]
- One can, in any event, envisage a case of excessive delay as falling within the court’s inherent jurisdiction to stay proceedings
“to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it.”[11]
- The court’s inherent jurisdiction to dismiss for want of prosecution is not, of course, limited to the Birkett v James[12] categories of intentional and contumelious default and inordinate and inexcusable delay; that was made clear by the Court of Appeal in Cooper v Hopgood & Ganim[13]. As outlined by McPherson JA in that case, other relevant factors include:
“the duration of the time lapse involved; the cogency of any explanation for delay; the probable impact of procrastination on fading recollection; the death or disappearance of critical witnesses or records; costs already or likely in future to be expended or thrown away; the apparent prospects of success or otherwise at a trial of the action; and the progressively growing problem of effectively hearing and determining questions of fact arising out of events that have taken place many years before.”[14]
Factors against dismissal or stay
- The long passage of time which has elapsed since the cause of action arose has inevitably caused prejudice to the defendants. But it is significant that this case, unlike Brisbane South Regional Health Authority v Taylor, does not involve any indulgence to be granted by the court. The rationales for the existence of limitation periods which McHugh J outlines[15] as requiring a consideration of the overall effect of delay have no application here, where the plaintiff is not subject to any such constraint. To the contrary, it is a relevant consideration that the policy of the legislature as manifested in the Limitation of Actions Act 1974 is to refrain from imposing any limitation at the time within which a plaintiff under a disability must commence an action.[16]
- On past applications for dismissal of this action, the prejudice resulting from the plaintiff’s delay in conducting the proceeding has not been considered such as to warrant its striking out or stay. It was a relevant consideration on those applications, and remains so, that the plaintiff is under a disability which, combined with her impecuniosity, has largely been the cause of her difficulty in proceeding expeditiously. An obvious example of that difficulty is the problem of finding a suitable litigation guardian. If, as the defendants suggested, it would be relevant to take into account any remedy that the plaintiff might have against her current or former solicitors, I must say that I think it highly doubtful that any would be available; my overwhelming impression is that while there were certainly periods of apparent inaction by the plaintiff’s solicitors earlier in the litigation, the continuing problems have primarily been the result of the plaintiff’s situation of disadvantage, particularly her lack of funding and her need to act through a litigation guardian. And a new consideration is this: the plaintiff has in more recent times taken steps to advance the proceeding, and it seems it is not far from readiness for trial.[17]
Factors favouring dismissal or stay
- The fresh developments are, of course, the death of Dr Latham and the difficulty in locating Mrs Gent. As to the latter, the defendants’ inquiries have been by no means exhaustive; but the plaintiff does not suggest that she has any knowledge of her mother’s whereabouts either. Mrs Gent was still capable of being found in 1995; had the plaintiff’s action proceeded expeditiously once commenced, the odds are that she would have been available as a witness at trial. The prospects of locating her now seem poor. The situation in relation to Ms Dignan’s death is rather different; it occurred in 1990, within four years of the performance of the surgery. It is a difficulty with which the parties have always been confronted and is not the result of any delay in prosecution of the action.
- Against those factors indicating that the plaintiff should be allowed to proceed to trial are issues of prejudice and limited prospects of success. There are aspects of the plaintiff’s claim in relation to which, in my view, the defendants are now irretrievably prejudiced by the passage of time and the loss of evidence. An allied problem is the apparent inability of the plaintiffs’ representatives to articulate her case on some claims, a circumstance which does not augur well for success.
- Although a statement was made by Dr Latham, I do not think it provides a complete answer to the difficulties the case now presents. The plaintiff’s allegation that the defendants knew or ought to have known that her mother applied duress to her has never been intelligibly particularised; it cannot be expected that Dr Latham was able to address it in his statement. In addition, the apparent difficulty in formulating any coherent allegation does not inspire confidence that it can be made out.
- As to the allegations of sexual abuse, it is not possible to reconstruct Mrs Gent’s motives from the contemporary records which remain: the letters of Dr Latham and the case notes. Their content cannot justify an inference that because past abuse was alleged there must have been some impetus to conceal future misconduct. No other material has been put before me which would suggest that the plaintiff can establish some mala fides on Mrs Gent’s part, or the defendants’ knowledge of it. But if the plaintiff is to rely on some other, possibly undocumented, conduct or statement by Mrs Gent, the defendant is placed in the untenable position of being unable to produce Dr Latham to say whether it occurred or whether it was made known to him, as the case may be. The lack of Mrs Gent as a witness renders impossible any fair resolution of the issues of whether she was as a matter of fact acting in the plaintiff’s interests and whether the defendants ought to have questioned her motives.
- No relevant policy or guideline of the hospital has ever been identified by the plaintiff, much less any breach. There is simply nothing to suggest there is any substance in this allegation; certainly if there were, it was not something to which Dr Latham had the opportunity to respond. And the defendants make a telling point when they say that they are at an unfair disadvantage in defending a claim for exemplary damages which would turn on the motives and intentions of those involved, when the primary actor, Dr Latham, cannot in person explain his reasons. There is, I might add, nothing in the pleadings or in the material before me which would suggest that such damages were warranted.
The claims which should not proceed
- In short, I do not think this trial can now fairly proceed on allegations that the plaintiff’s mother was acting for ulterior purposes rather than in the best interests of the plaintiff or that the defendants ought to have known that that was the case; nor can any suggestion of duress now properly be dealt with. Similarly, the claim for exemplary damages ought not to be permitted to proceed. The allegation that there was some breach of policy or guidelines is so vague and insubstantial that it too should summarily be brought to an end.
The claims which can proceed
- On the other hand, there remain some issues in respect of which I do not consider that the defendants have been significantly disadvantaged by the plaintiff’s delay, and which do warrant a trial. One is whether the plaintiff’s intellectual capacity and maturity were such as to make her capable of giving consent. I should say, however, that it is by no means clear that this is an issue given the apparent contradictions in the pleadings and particulars as to whether the plaintiff is alleging competence or not. But if it is a live issue, there remains some contemporary evidence in the form of Ms Dignan’s report, and Dr Latham’s comments on it in his correspondence. There may well also be available records of the plaintiff’s schooling. One would, in addition, expect that Dr Latham dealt in his statement with the questions of the plaintiff’s apparent maturity and understanding. There may be question marks over the strength of the plaintiff’s case, given the need to rely on attempts at extrapolation from her capacities twenty years later to her level of impairment as a child; but there is enough by way of expert evidence to suggest that the case is arguable.
- Another issue is whether, in the circumstances, the plaintiff’s mother had authority to give her consent to the surgery. That may involve determining whether it was therapeutic and whether the policy considerations which produced the decision in Secretary, Department of Health and Community Services v J.W.B. and S.M.B.[18] should be regarded as operative at the time these procedures were performed, some six years earlier, so as to make it incumbent on the defendants to seek a court order. No doubt all of those issues will present difficulties of determination because of the lapse of time, but I do not think that the lack of Dr Latham or Mrs Gent presents any real bar to their resolution.
- It appears inevitable, notwithstanding the absence of specific pleading on the point, that the question of whether the surgery was in the plaintiff’s best interests must be canvassed, both in the context of causation (would any different result have been arrived at if the plaintiff were properly informed, or a judicial determination involved?) and damage. This will, again, entail the relatively problematic prospect of reconstruction of the plaintiff’s circumstances at the relevant time; but the reasons for undertaking the operations were contemporaneously documented. Given the availability of Ms Dignan’s report, Dr Latham’s correspondence and his statement, and the hospital’s notes, it seems to me still feasible to resolve this issue. It is an important question; the plaintiff should not be deprived of the opportunity to have it determined.
Proposed orders
- My view, in sum, is that in some respects it is impossible for the defendants to receive anything approaching a fair trial without either Dr Latham or Mrs Gent to respond to the plaintiff’s case; but in others their absence is not fatal. I propose, therefore, to take the unusual step of permitting some claims to proceed, but not others. It seems to me that the most effective means of producing that result is to strike out paragraphs 17(a)(iv), 17(g), (h), (j), (k) and (o), 18(f) and that part of the relief which refers to exemplary damages. (Other parts of the amended statement of claim alleging negligence on the part of the second, third and seventh defendants are also obsolete, but I do not intend to embark on a general tidying-up exercise.) I propose to order that the proceeding be stayed so far as it relies on allegations that the plaintiff’s mother was not acting in her best interests and applied duress to her, and that the defendants knew or ought to have known that to be so. I am, however, prepared to receive submissions from the parties as to the final form of my orders.
Footnotes
[1] Raabe v Brisbane North Regional Health Authority [2000] QSC 257.
[2] Raabe v Brisbane North Regional Health Authority [2003] QSC 359
[3] At 9.
[4] (1993) 177 CLR 378.
[5] (1989) 168 CLR 23.
[6] At 394.
[7] At 58.
[8] (1996) 186 CLR 541 at 552.
[9] (2000) QSC 158; on appeal at [2001] QCA 293.
[10] At para 6.
[11] Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536 cited with approval in Walton v Gardiner (1993) 177 CLR 378 at 393.
[12] [1978] AC 297 at 318.
[13] [1999] 2 Qd R 113.
[14] At 124.
[15] At 551-554.
[16] Williams v Zupps Motors Pty Ltd (1990) 2 Qd R 493; Turvey v Steindl [1997] QSC 2.
[17] Quinlan v Rothwell [2002] 1 Qd R 647.
[18] (1992) 175 CLR 218.