Allan Petit v State of New South Wales & Anor

Application to Dismiss Proceedings 5The defendants' application to dismiss the proceedings is brought on two bases. The first is pursuant to s 26BD of the Civil Liability Act 2002 ("the Act") and the second basis is pursuant to Part 13 Rule 4 of the Uniform Civil Procedure Rules ("UCPR"). 6Section 26BD is contained within Division 1A of Part 2A of the Act. Part 2A is entitled "Special Provisions For Offenders in Custody". Part 2A, Division 1A was inserted into the Act pursuant to the Civil Liability Legislation Amendment Act 2008 and commenced on 12 November 2008. The relevant provisions of Division 1A for determination of this matter are as follows: "26BA Protected defendant must be given Notice of Incident giving rise to claim (1) A person (referred to in this Division as a claimant) who makes or is entitled to make a claim against a protected defendant for an award of personal injury damages to which this part applies must give the protected defendant notice of the incident that gives rise to the claim within six months after the relevant date for the claim. (2) The relevant date for the claim is the date of the incident that gives rise to the claim unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death. (3) Notice of an incident must be in writing and must: (a) Specify the date of the incident, and (b) Describe the incident (in ordinary language), and (c) State that the incident may give rise to a claim against the protected defendant. (4) Notice given to an officer or employee of a protected defendant is taken to have been given to the protected defendant. (5) Time does not run for the purposes of this section while the claimant is a vulnerable offender under s 26BC ... 26BD Dismissal of Court Proceedings for Failure to Give Notice or Cooperate on Claim (1) A protected defendant against whom court proceedings for an award of damages to which this Part applies are commenced may apply to the court to have the proceedings dismissed on the grounds of a failure to comply with s 26BA or 26BB in connection with the claim concerned. (2) An application under this section cannot be made more than 2 months after the Statement of Claim is served on the protected defendant. (3) On an application under this section, the court must dismiss the proceedings unless the court is satisfied that: (a) Section 26BA has been complied with in respect of the claim or the claimant has a full and satisfactory explanation for non-compliance with that section and the required notice of the incident was given to the protected defendant within a reasonable period in the circumstances, and (b) The claimant has complied with s 26BB in respect of the claim or has a reasonable excuse for any non-compliance with that section. 7The affidavits relied on by the defendants seek to establish that the plaintiff at no time gave the defendants notice of "the incident" as required by s 26BA. The defendants submit that Division 1A applies to the plaintiff's case because "the incident" that gives rise to the plaintiff's claim occurred on 15 January 2010 when he should have become aware of the damage caused by his contraction of Hepatitis C following the ultrasound of that date which revealed him suffering parenchymal liver disease. As the plaintiff has not complied with s 26BA, the defendants submit the proceedings should be dismissed pursuant to s 26BD(1). 8The plaintiff submits that the relevant "incident" referred to in s 26BA(2) were the occasions on which the defendants breached their duty of care by failing to inform the plaintiff of his Hepatitis C status (namely on 7 May 1998, 20 March 1999 and 28 August 2001). Therefore, relying on Clause 35 of Schedule 1 to the Act, Division 1A of Part 2A does not apply in relation to an award of damages as the incident giving rise to the claim occurred before commencement of the Division, namely, 12 November 2008. Before this matter can be determined, I set out the following background as disclosed by the evidence.

Background to the Dispute 9It is not in dispute that the plaintiff has spent most of his adult life in prison. He was born on 11 November 1967 and had a blood transfusion following an incident in 1974 when, at the age of six years, he injured his leg when it was seriously lacerated by the chain of a motorbike. According to Dr C R Vickers, Consultant Gastroenterologist and Hepatologist, who examined him on 17 June 2011, the plaintiff most likely contracted his Hepatitis C infection as a result of that blood transfusion. 10In 1998 he participated in a statistical study program in gaol, for which he underwent blood tests. He was not informed of his positive result following that study. When a further assessment took place on 20 March 1999, his previous result was accessed and read, however, he was not then informed of the positive HCV result either. 11On 28 August 2001 the plaintiff stepped on a razor in a prison shower, following which he underwent further blood tests which were also positive. Yet again, he was not informed of the positive result. It was only after a third blood test on 27 October 2006 that the plaintiff was advised that he had tested positive for Hepatitis C. 12The plaintiff underwent a 12 month course of treatment described by Dr Vickers as "anti-viral pegylated interferon treatment" but has not been cured. He remains positive for Hepatitis C. A CT scan undertaken of the abdomen and pelvis on 29 April 2008 showed no abnormality, however, the plaintiff underwent an upper abdominal ultrasound on 13 January 2010 and the report dated 15 January 2010 revealed changes of the liver suggestive of parenchymal liver disease. 13On 15 October 2008 the plaintiff lodged a complaint with the Health Care Complaints Commission about his treatment by the second defendant whilst he was in prison. He was concerned that had he been properly advised of his positive status in 1998, he could have responded as follows: "1. Stopped smoking and drinking alcohol. 2. Not put family, partners, friends, others at risk. 3. Sort (sic) treatment soon and stood better chance of success. 4. Have medical check-ups for this condition. 5. Not taken other medicine damaging with this condition ie Codeine, Panadol "anastedic", etc. 6. Looked after my liver better considering chronic condition." 14The second defendant responded to the complaint by letter dated 10 November 2008. In that letter the Chief Executive of the second defendant acknowledged that following each test the plaintiff was not informed of the positive result, nor was he informed upon transfer within various correctional centres. The letter stated: "Unfortunately it is unclear why you were not advised of your blood test results." 15The letter further stated: "There is no evidence that had you received treatment earlier the outcome would have been different. Justice Health acknowledges that there were system errors that resulted in you not being advised of the two previous positive blood tests. Justice Health has implemented an electronic Patient Information System that should now bring to the attention of nursing staff any patient who re-enters custody of any outstanding test results ... Justice Health would like to apologise that you were not advised of your Hepatitis C status prior to 2006." 16It appears that the plaintiff engaged solicitors to advise him in respect of the matter and those solicitors made an arrangement in 2010 for him to be examined by Dr Vickers. The prison authorities were not able to arrange the plaintiff's transport for that appointment as they were unable to locate Dr Vickers (annexure M to the affidavit of Gurdev Singh). Dr Vickers eventually examined him on 17 June 2010.

Plaintiff's Evidence 17The plaintiff relied on an affidavit sworn on 1 May 2012 which responded to annexure A to the affidavit of Mr Chee sworn on 12 April 2012. No evidence was tendered to explain his apparent non-compliance with s 26BA, or whether he has complied with s 26BB. The plaintiff had been released from prison on 13 June 2012 and as at the date of the application, namely, 22 June 2012, his solicitor had been unable to contact him. Following submissions by both parties, I reserved my judgment on the defendants' application, but also directed that the plaintiff have leave, on seven days notice to the defendants' solicitor and the court, to re-list the matter before me for the purpose of calling any further evidence relevant to any explanation the plaintiff may have for the purposes of s 26BD(3). 18The matter was relisted at the plaintiff's request on 23 July 2012. Leave was granted to the plaintiff to re-open his case, and affidavits were read from the plaintiff and his solicitor without objection. The plaintiff gave an explanation that he was, at the time of the ultrasound taken on 13 January 2010, in prison and not informed of the results. His solicitor became aware of the results in May 2010.

Issues to be Determined 19The issues to be determined on this application are as follows: (1)Whether Part 2A Division 1A of the Act applies in the present circumstances, enlivening a power to dismiss the proceedings pursuant to s 26BD. The determination of this question relies on the proper construction of s 26BA and the meaning of the words "the incident that gives rise to the claim" within s 26BA(1). (2)If s 26BA applies, whether the claimant has a full and satisfactory explanation for non-compliance with that section and whether the required notice of the incident was given to the defendant within a reasonable period in the circumstances. (3)If s 26BA does not apply, whether the proceedings should be dismissed pursuant to Part 13, Rule 4(b) of the UCPR.

Does Division 1A of Part 2A of the Act Apply? 20As set out in paragraph 6 above, Division 1A commenced on 12 November 2008. Clause 35 of Schedule 1 of the Act provides as follows: "35 Duties of Claimant for Offender Damages Division 1A of Part 2A does not apply in relation to an award of damages if the incident giving rise to the claim occurred before the commencement of that Division." 21The words "the incident that gives rise to the claim" are not defined in the Act. The defendants submit that the incident occurred on 15 January 2010, whereas the plaintiff submits that the relevant "incident" in this case comprised the three occasions when the defendants failed to inform him of his Hepatitis C status, all of which occurred prior to the commencement of the Division. Hence, the plaintiff relies on Clause 35 of Schedule 1 to submit that Division 1A of Part 2A does not apply. 22The defendants contend that the "incident giving rise to the claim" occurred on 15 January 2010 when the results of the ultrasound was published. At this time the plaintiff should have become aware, not of his Hepatitis C status, but that he had parenchymal liver disease. The reason they submit that 15 January 2010 is the relevant date, is that negligence is actionable only on proof of damage, and a cause of action in negligence is complete only when the damage is caused by the breach of duty sustained. It is at this time, in the ordinary case that the cause of action first accrues (relying on Hawkins v Clayton (1988) 164 CLR 539 and Commonwealth v Cornwall (2007) 229 CLR 519). The defendants submit that prior to 15 January 2010 there was no known damage to give rise to a claim. 23The plaintiff's evidence was that he was in prison when he had the ultrasound on 13 January 2010, and was not informed of the results. His solicitor received the results on 18 May 2010. 24The plaintiff submits that "the date of the incident that gives rise to the claim" is the date of the occurrence of injury afforded by the defendants to the plaintiff, namely, when the defendants failed to inform the plaintiff that he had tested positive for Hepatitis C. The plaintiff has submitted that the principles of construction to be applied in construing the meaning of the words "the date of the incident that gives rise to the claim" are found in the judgment of Allsop P in Wilson v State Rail Authority of NSW [2010] NSWCA 198 at [12-15]. Those principles are now well settled, and require a purposive approach, consistent with the language and purpose of all the provisions of the statute (Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]). 25In Wilson v SRA, supra, Allsop P said at [12]: "Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect." (Authorities omitted) 26Regard must be had to the context in which Part 2A Division 1A of the Act appears. The Act is concerned with recovery of damages for death or personal injury caused by fault, in other words, actions for damages for personal injury for negligence except where excluded by the Act (s 3B). Part 2A must be read in the context of other provisions, for example, Part 1A, which sets out general principles in relation to breach of duty of care (s 5B and 5C) and causation (s 5D) which would of course apply to any action for damages litigated pursuant to Part 2A. 27Having regard to the purpose of the Act and the context in which Part 2A appears, namely, in respect of claims brought against protected defendants by offenders in custody in respect of incidents occurring after 12 November 2008, the words "the incident that gives rise to the claim" in s 26BA and s 26BD must mean, on its plain meaning and giving effect to the purpose of the legislation, the date of occurrence of injury as submitted by the plaintiff. 28To uphold the defendants' submission that the words "the date of the incident that give rise to the claim" is the date the cause of action is completed, or the date when the plaintiff has an awareness that damage is caused, imports words into the section which are not required. There is no ambiguity in the words used by Parliament here, and no conflict that arises from the language used in these sections. In its context, the phrase "the incident that gives rise to the claim" means the date of occurrence of injury, or omission giving rise to the claim. Had parliament intended the words to mean "the time at which the plaintiff became aware of the damage" or "the date when the plaintiff's cause of action became complete", the Act would be couched in very different terms. 29The judgments of the High Court in Hawkins and Cornwall relied on by the defendants both concerned the construction of limitation provisions which required the Court to determine when a cause of action "first accrues" to a plaintiff. Both cases are therefore of no assistance in construing s 26 BA. 30For these reasons I find that Part 2A Division 1A does not apply to the plaintiff's claim and therefore I do not have to decide whether s 26BD has been satisfied. It would be difficult to so find here where the incidents occurred over ten years previously and no notice was given. I note the judgment of Sidis DCJ in Larry Dawson v State of NSW unreported, 23 March 2012, in which her Honour dealt with this issue on the basis of whether the defendant was prejudiced by the elapse of time to the extent that it could not secure a fair trial.

The Alternative Basis of the Application - Part 13 Rule 4 UCPR

31The defendants submit that alternatively, the Court should dismiss the proceedings pursuant to Part 13 Rule 4 (1)(b) UCPR which provides as follows: "13.4(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings; (b) no reasonable cause of action is disclosed, ... The court may order that the proceedings be dismissed generally or in relation to that claim." 32The defendants submit that the court should exercise its discretionary power to dismiss a plaintiff's case on the basis that it is so weak that to go to trial would be futile - Peter Kent Development Pty Limited v ANZ Banking Group Limited NSWSC, Hunt J, 6 May 1980, unreported. The defendants also submit that there is no possibility of the facts pleaded giving rise to a good cause of action, relying on Dey v Victorian Railway Cmrs (1949) 78 CLR 62 at 90. 33The defendants submit that the plaintiff's claim as pleaded omits an essential ingredient in the tort, namely, that no causal nexus to the defendants' breach of duty of care is pleaded. The defendants further submit that causation is not capable of being pleaded in the present circumstances in that mere failure to inform someone of the disease that he already has does not establish causation per se, in the event that the disease deteriorates many years later. The defendants submit that it is akin to bringing a claim based on a chance of a better outcome. 34In Tabet v Gett (2010) 240 CLR 537 the question of whether Australian law permitted recovery of damages where breach of duty of care resulted in loss of a chance of a better outcome where the chance of avoiding certain damage was less than 50%, was determined. The Court held there was no form of actionable damage in such circumstances. 35Having considered the reports of Dr Vickers and Dr Conrad, whilst not finally determining the matter, I am not prepared to find that there is no reasonable cause of action disclosed on the evidence before me. If, once the evidence is complete, there is a deficiency in the pleading as to causation, the plaintiff may seek the leave of the Court to amend his pleading. At an interlocutory stage of the proceedings, the Court should be wary of holding that the plaintiff could never succeed - see Ryan v Forstaff Engineering Personnel Pty Ltd [2011] NSWSC 1009, per Barr AJ at [47]. I am not prepared, on the evidence before me, to find that it would be futile to allow the plaintiff's claim to go to trial.

Orders 36I therefore make the following orders: (1) Defendants' Notice of Motion filed on 14 March 2012 is dismissed. (2) Defendants to pay the plaintiff's costs of the motion. (3) The affidavits are to be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2012