Carlton & Anor v Hunter Valley X-Rays P/L & 2 Ors

Amanda Woodward (Second Defendant)

Hospital Corporation Australia Pty Limited (Third Defendant) JUDGMENT OF : Master Harrison

Mr R H Taperell (Plaintiffs)

COUNSEL : Mr G Laughton (First and Second Defendants)

Mr G Curtin (Third Defendant) Baker Love (Plaintiffs)

SOLICITORS : Yeldham & Associates (First and Second Defendants)

Ebsworth & Ebsworth (Third Defendant) CATCHWORDS : Extension of limitation period - ultrasound of baby - medical negligence - cross claims - summary judgment LEGISLATION CITED : Limitation Act 1969 Legal Reform (Miscellaneous Provisions) Act Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 BHP Steel (AIS) Pty Limited v Guidice (& Ors) (NSWCA, unreported 7 March 1997) Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195 Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128 Scarcella v Lettice [2000] NSWCA 289 Cartledge v E Jopling & Sons Ltd [1963] AC 758 CASES CITED : Gilbert v Castagna [200] NSWSC 461 Harriton v Macquarie Pathology Services (1998) Aust Torts Reports 81-489 Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Morton v Jools (1992) Aust Torts Reports 81-164 McAndrew v Wyoming Nursing Home (NSWSC Sperling J, unreported 5 December 1997) Szerdahelyi v Bailey; Ortado v Bailey; Lewis v Bailey (unreported NSWSC, Badgery-Parker, 1 May 1997) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported, NSWCA, 24 April 1998) Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995) DECISION : see para 39

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20343/2000 - DAVID ANTHONY CARLTON & ANOR v HUNTER VALLEY X-RAYS PTY LTD & 2 ORS

JUDGMENT (Extension of limitation period - ultrasound of baby - medical negligence; Cross claims; Summary judgment) 1 MASTER: By notice of motion filed 7 June 2000 the plaintiffs' seek firstly, an order that leave be granted to amend the statement of claim in accordance with the further amended statement of claim filed on 23 November 1999; and secondly an order extending the time within which to commence proceedings against Hospital Corporation Australia Pty Limited, as third defendant. 2 By notice of motion filed 6 July 2000 Hospital Corporation Australia Pty Limited seeks firstly, an order that the further amended statement of claim joining it as third defendant be dismissed; secondly that the first cross claim filed on behalf of Amanda Woodward be dismissed; and thirdly, the second cross claim filed on behalf of Hunter Valley X-rays Pty Limited be dismissed. The plaintiffs relied on their affidavits of 7 December 2000 and a further affidavit of the second named plaintiff of 19 December 2000 and an affidavit of their solicitor, Beverley Anne Cantle sworn 7 June 2000. The first and second defendants relied on the affidavit of Marianne Nicolle sworn 21 August 2000. All deponents were cross examined. 3 The first named plaintiff is David Anthony Carlton and the second named plaintiff is Karen Michael Carlton. They are the parents of Alexander Carlton. Alexander was born on 24 June 1992. Alexander was born with a spina bifida with a large open myelomeningocoele at the thoraco-lumbar junction with associated complete paraplegia. When Alexander was born it was apparent that he had hydrocephalus with a large head and widely separated skull sutures. It is alleged that the first defendant, Hunter Valley Ex-Rays Pty Limited was the provider of radiological services including ultrasound services at Lingard hospital. Dr Amanda Woodward the second defendant was the radiologist who reported on the films. The plaintiffs allege that had they been advised properly about the findings in the ultrasound they would have chosen to terminate the pregnancy. The plaintiffs claim that as a result of Alexander's birth they have incurred expense that which additional to that which they would otherwise have incurred had he been born without disabilities. They also allege that they suffer from anxiety and depression. 4 A further, further, further amended statement wof claim was tendered in court (Ex B) (FFFASC). While the third defendant opposes the filing of a statement of claim it does not take issue with the amendments contained in the FFFASC. The first and second defendants consent to the filing of the FFFASC. I shall deal with the applications on the basis of the allegations contained in the FFFASC (the latest document). 5 The second cross claim alleges that the corporation as proprietor of Lingard private hospital at which the ultrasound examination was performed was in breach of its duty of care to the plaintiff. It should be noted from the affidavit of the proposed third defendant's solicitors that Ms Eadie, the ultrasonographer who performed the scan on 17 January 1992 was employed by both the Hunter Valley X-Ray Pty Limited and the Hospital Corporation Australia Pty Limited. Particulars of the allegations are provided in paragraph 11 of the cross claim; amongst other things it is alleged that the ultrasound examination was performed at a time when the doctor who normally prepared the reports in relation to obstetric ultrasounds was unavailable, that neither the first or second defendant was provided with a videotape of the examination prior to preparation of the report, or indeed even advised that a videotape of the examination had been obtained, and that the corporation failed to provide films of sufficiently high quality. 6 For the purposes of this application I find the following facts. In arriving at these findings I observed the plaintiffs both giving evidence and being cross examined. I formed the opinion they gave evidence to the best of their ability. The first named plaintiff was nervous in the witness box. She gave inconsistent evidence at times but I accept that she did not intend the evidence to be untruthful. (1) In about September 1991 the second named plaintiff (who I will refer to as the plaintiff) became pregnant and consulted Dr Melinda Wilson her local general practitioner.

(2) At the time the plaintiff was being treated in relation to her pregnancy there was a shared care plan by which half the treatment was provided by the general practitioner and half at the antenatal clinical at John Hunter hospital. In January 1992 the plaintiff saw a doctor at John Hunter hospital who wrote a referral for the plaintiff to undergo an ultrasound with Dr Raymond. This letter is available. Dr Raymond was on leave so the receptionist referred her to Lingard hospital where the ultrasound could be performed.

(3) On 17 January 1992 the plaintiff underwent an ultrasound procedure at Lingard hospital. She was told that all they needed was a signed Medicare form which she provided. She assumed that the equipment was owned by the hospital and the scan was performed by an employee of the hospital.

(4) When the ultrasound was complete the plaintiff was given a copy of a video tape and a copy of Dr Woodward's report. A copy of the report is available. Under the heading 'Impression" it states: "Single live mobile foetus of approximately 19 weeks gestation. The BPD is slightly reduced due to the scapho-cephalic configuration of the head. Foetal morphology is normal. Today's study is consistent with the clinical dates and an estimated date of delivery of approximately 13.6.92."

This report appears on Hunter Valley X-Ray Pty Limited letterhead.

(5) Throughout the plaintiff's pregnancy she suffered from morning sickness. In the latter part of her pregnancy she suffered from heartburn which necessitated her to sit up in bed to sleep at night. She ceased paid employment three months prior to the expected birth of her child. She intended to return to work after the birth.

(6) The plaintiff's pregnancy continued without any problems until 24 June 1992 when the plaintiff was admitted to John Hunter hospital in labour. On that day the plaintiffs' child Alexander was born and was delivered by caesarean section. As previously stated, Alexander was born with a spina bifida with a large open myelomeningocoele at the thoraco-lumbar junction with associated complete paraplegia. He had hydrocephalus with a large head and widely separated skull sutures.

(7) About one week after the birth of Alexander Dr Stephen Raymond requested a copy of the videotape of the ultrasound. The following day after it was provided Dr Raymond informed her that at the very least she should have had a second ultrasound.

(8) The plaintiff gave evidence that in 1994 she solely blamed Dr Woodward for what had happened. She did not blame the person who performed the ultrasound. However during cross examination the plaintiff conceded that to the best of her recollection she probably laid some blame against the person who performed the scan.

(9) On 29 September 1994 the statement of claim where Hunter Valley X-Rays Pty Limited was the sole defendant was filed.

(10) On 28 August 1998 an amended statement of claim was filed which added Dr Amanda Woodward as the second defendant.

(11) On 19 April 1999 a further amended statement of claim was filed.

(12) By letter dated 20 May 1999 the first and second defendants solicitor wrote to the plaintiffs' solicitor annexing a cross claim and an amended defence. The cross claim alleges that it was Lingard private hospital who performed the obstetric ultrasound examination and report. Hospital Corporation carried on the business of a provider of medical services at premises known as Lingard private hospital Merewether.

(13) On 21 May 1999 the plaintiffs became aware that Hospital Corporation of Australia Pty Limited (Hospital Corporation) had care, control and management of the hospital and had been involved in performing the ultrasound. Up until then the plaintiffs had been of the view that it was Hunter Valley X-rays Pty Limited who performed the ultrasound. This is not surprising because this is the name that appears on the letterhead of the ultrasound report and Ms Eadie was apparently employed by both Hunter Valley X-Rays Pty Limited and Hospital Corporation on 17 January 1992. Until the plaintiffs were told by their solicitor, it would not have been apparent to the plaintiffs the contractual relationship between Ms Eadie and Hunter Valley X-Rays Pty Limited and Hospital Corporation. Throughout these proceedings the plaintiffs have accepted the legal advice proffered by their solicitor and barrister.

(14) On 26 May 1999 Dr Amanda Woodward filed the first cross claim against Hospital Corporation.

(15) On 21 June 1999 Hunter Valley X-Rays Pty Limited filed a second cross claim against the Hospital Corporation. The solicitor for Hospital Corporation consented to the filing of this cross claim.

(16) On 20 August 1999, the plaintiffs' solicitor Mrs Cantle had a discussion with the solicitor for the first and second defendants to check whether there was evidentiary material to support the allegations in the cross claim. Once this was confirmed she caused a further further amended statement of claim to be filed.

(17) On 23 November 1999 a further further amended statement of claim was filed adding Hospital Corporation Australia Pty Limited as third defendant.

(18) On 7 June 2000 the notice of motion was filed seeking an extension of the limitation period. The Law 7 It is common ground that the plaintiffs' claim in contract arising out of the ultrasound which took place on 17 January 1992 is statute barred and the paragraphs in the proposed FFFASC which allege breach of contract by the third defendant should be deleted. The plaintiffs rely on ss 60G and I and alternatively s 60C and D of the Limitation Act 1969.

(1) Sections 60G and 60 I 8 The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 and in BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195 and Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128. The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. Subdivision (3) 9 The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990; but "also (by the operation of Schedule 5) for causes of action that accrued before that date" (s 60F). 10 Schedule 5 provides by clause 4(1) that: "Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…"; 11 and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action: "…if an application for such order is made within: (a) the period of three years referred to in s 60I; or (b) the period of three years commencing 1 September 1990." 12 The application to extend time was made on 7 June 2000 which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be "within the period of three years referred to in s 60I". 13 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". The onus rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order. 14 The plaintiff relies on s 60I(a)(iii) which is as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff: (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 15 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that: (1) As at 25 June 1995 (the expiration of the relevant limitation period) they were unaware of the matters identified in s 60I(1)(a) (iii);

(2) That they did not become aware of that or those or they ought to have become aware in s 60I(1)(a)(iii) (or the last of those matters to become known to them) earlier than 7 June 1997. 16 The practical effect is to require the plaintiffs to identify specifically what fact or facts they claims not to have known as at 24 June 1995, which lack of knowledge meets the description in one or more of paragraph (iii) of s 60I(1)(a); and to show (by evidence) the date on which they acquired knowledge thereof (being a date later than 24 June 1995); or to show that that fact was or those facts were still unknown to them on that date. 17 The proposed third defendant submitted that the cause of action arose on 21 February 1992 being three years from the last opportunity the plaintiff had to terminate the pregnancy. The third defendant relied on the Court of Appeal's decision in Scarcella v Lettice [2000] NSWCA 289. Scarcella considered when a cause of action in tort was complete. The court had to decide between two dates namely the time when purchase took place or the date when the defect in title was discovered. The Court of Appeal was held that the time ran from the date of completion of the purchase not the date that there was a discovery of the defect in title. The rationale was that the defect in title would have been revealed had the normal conveyancing procedures been followed. The third defendant alleges in the case before me that even though the plaintiffs had no knowledge of the disabilities that their child would suffer upon birth, actual knowledge is not required. 18 A cause of negligence is not complete until the plaintiffs first suffer actual loss and damage. Handley JA at para [14] in Scarcella stated that in order for the plaintiffs' cause of action to be complete, the plaintiffs' actual damage must be "measurable" (Wardley at 531), or, in the words of Lord Reid in a personal injuries case (Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 772) the damage must be "beyond what can be regarded as negligible". 19 The first plaintiff suffered from morning sickness, heartburn and gave up work three months before the birth. The third defendant contends that these damages are not negligible and they are not measurable. These items are not claimed in the Part 33 particulars. It is my view that they do not constitute "measurable damages". It is my view that the plaintiffs depression and anxiety did not occur until after Alexander was born. Nor did Alexander's parents incur additional expenses of raising him until after his was born. For these reasons, the date that the cause of action accrues, ie. when damage was suffered is the date that Alexander was born, namely 25 June 1992. 20 Personal injury is defined in s 11 of the Act in inclusive terms: "includes any disease and any impairment of the physical or mental condition of a person". The definition is not exhaustive. A claim for damages for failure to diagnose a condition likely to cause birth of a child suffering from spina bifida or similar conditions has been treated as a claim for damages for person injury - Gilbert v Castagna [2000] NSWSC 461; Harriton v Macquarie Pathology Services (1998) Aust Torts Reports 81-489. (iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission" 21 The proposed third defendant submitted that the plaintiffs did not pass through the s 60I(a)(iii) threshold because in 1994 the first plaintiff had laid some of the blame for what transpired on the person who performed the ultrasound. The plaintiffs submitted that it was not until May 1999 at the earliest that they became aware that they had a cause of action against the proposed third defendant. 22 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions are to be found in the plaintiffs' particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). The acts and omissions which are pleaded in the FFFASC are: "(a) failing to infer and report the possibility of spina bifida in consequence of the shape of the foetal head; (b) failing to detect and report the presence of hydrocephalus; (c) failing to measure and report the measurements of lateral ventricles; (d) failing to note and report the obvious splaying of the lumbo-sacral spine; (e) failing to advise the plaintiffs that it was likely that the child suffered from spina bifida and hydrocephalus; (f) failing to alter the referring doctor to the findings consistent with spina bifida and hydrocephalus; (g) advising the plaintiffs and the referring practitioners that the examination was normal; (h) arranging for the examination to be performed at a time when Dr Steve Raymond was unavailable, Dr Raymond being the radiologist who normally prepared the reports in relation to obstetrics ultrasound examinations conducted by or at the premises of the third defendant; (i) arranging for the examination to be performed at a time when Dr Raymond, to whom the plaintiff had been referred by her general practitioner, was unavailable; (j) failing to provide to the first defendant, or in the alternative, to the second defendant all films and videotapes generated during the examination; (k) failing to advise the first defendant and, or in the alternative, the second defendant that a videotape of the examination had been generated; (l) failing to provide films of sufficiently high quality to enable the first defendant and, or in the alternative, the second defendant easily and accurately to report on the films; (m) failing to provide the films and videotape generated during the examination to the first defendant, and, or in the alternative, the second defendant within a reasonable time of performing the examination." 23 As previously stated Ms Eadie the ultrasonographer was employed by both the Hunter Valley X-Ray Pty Limited and the Hospital Australia Pty Limited at the relevant time. On 17 January 1992 the plaintiff would not have been privy to any contractual relationship of Ms Eadie with the first defendant or the proposed third defendant. She was never told who employed Ms Eadie. The ultrasound report was on Hunter Valley X-Ray Pty Limited letterhead. The plaintiff signed a Medicare form so she was never provided with an invoice which may have revealed the identity of the service provider. Even though the plaintiff may have thought prior to the expiration period that the person who performed the scans may have been employed by Lingard hospital and may be to blame in some way it was Dr Woodward that the plaintiff held responsible. In any event, a blame or a thought that there may have been some wrongdoing on the part of the person who performed the scan and provided the films falls short of the test laid down in Drayton. 24 In 1994 the plaintiffs did not know the alleged acts or omissions that may constitute negligence. The plaintiffs and their solicitors assumed that the entity who performed the ultrasound was that which appeared on the letterhead. The plaintiffs accepted the advice of their solicitor as to the identity of the defendants (see Morton v Jools (1992) Aust Torts Reports 81-164 and McAndrew v Wyoming Nursing Home (NSWSC Sperling J, unreported 5 December 1997)). I accept that it was not until May 1999 that they became aware that Hospital Corporation carried on the business providing hospital services and may be the entity responsible for performing the ultrasound. It appears that Dr Woodward the radiologist who reported on the ultrasound, was employed by a different entity, namely Hunter Valley X-Rays.

25 The plaintiffs' knowledge was obtained within the time stipulated by s 60I(1)(b). As the plaintiff has passed through the s 60I(1)(a)(iii) gateway, I turn to consider whether it is just and reasonable to extent the limitation period.

Just and reasonable 26 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish her cause of action. (See Szerdahelyi v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Ortado v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Lewis v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Zegarac; Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported, NSWCA, 24 April 1998) and Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995). The third defendant submitted that there is no real case to advance against it. The report of Dr Robertson dated 6 June 1994 stated that there is definite evidence on this ultrasound examination for spina bifida. He stated that although the ultrasound appearance of spina bifida can be difficult to detect the detection of this abnormality is enhanced with the recognition of cranial signs including the 'lemon' sign which is very obvious in this case. Dr Robertson was of the opinion that as this information had been published in literature well before January 1992 it should have been known to the ultrasonologist who reported on the examination. 27 While there is evidence as to the expenses incurred. There is little evidence of the plaintiffs' state but I accept that evidence will be furnished to support such claims shortly. In the Part 33 particulars is a detailed report of an occupational therapist as to Alexander's future need. I observed Alexander in court in a wheelchair. It is my view that the plaintiff have a real case to advance against the third defendant. 28 The principles concerning prejudice have recently been considered Wynter by Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed). At 147 para 119 of the Court of Appeal stated that the effect of the High Court decision in Taylor's case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. Indisputably with the passing of nine years since the event that gave rise to these proceedings occurred, there is presumptive prejudice. 29 The third defendant submitted that it is actually prejudiced because the ultrasonographer's worksheet is missing. Debra Eadie who carried out the obstetric ultrasound on the plaintiff on 17 January 1992 and recalls that she provided the ultrasound films generated to the interpreting doctor. It was her practice to complete a worksheet while carrying out an examination. Ms Eadie recalls filling out such a form - an incomplete proforma sheet is in evidence. She also stated that at the time she completed the worksheet on 17 January 1992 she included the words "? spine wide" on the worksheet. Ms Eadie stated that it was her practice to give the original worksheet and original ultrasound films to the interpreting doctor. To the best of her recollection she handed to Dr Woodward the original worksheet and original ultrasound films after 17 January 1992. Ms Eadie had carried out a search at Lingard hospital and is unable to locate the original worksheet and original ultrasound films. Neither the plaintiff or the first and second defendants were able to produce the completed worksheet in answer to subpoenae served on them. This worksheet no longer exits. Ms Eadie's evidence was contained in her solicitor's affidavit. Therefore she was not able to be cross examined. 30 The actual films and videotape are available. Ms Eadie has a recollection of the critical events but the contemporaneous document brought into existence that would support her query about the spine no longer exists. The allegations made against the ultrasonographer do not solely relate to that issue. It is alleged that the films were not of high quality. Those films are available for expert opinion. It is also alleged that she failed to advise the radiographer of the existence of the videotape. The worksheet would not assist. The other area of dispute was whether the films should have been referred to Dr Raymond at a later date. This is a factual dispute and the worksheet is not relevant. It appears that contracts of employment between the hospital and Ms Eadie still exist. 31 Before filing a FFASC the plaintiffs' solicitor ensured from the first and second defendants' solicitor that there was evidence to show that the third defendant had the care, control and management of Lingard hospital. It was the entity who performed the ultrasound. This conversation occurred on 20 August 1999. The FFFASC was duly filed on 23 November 1999 seeking to join Hospital Corporation. The third defendant was on notice that the plaintiffs were seeking to claim against it within three months.. The motion was filed six months later. After I have taken into account all of these matters, I am satisfied that the defendant will not suffer significant prejudice. It is my view that the plaintiff has discharged his onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. 32 If I am wrong I turn to consider whether the plaintiffs are entitled to an extension of the limitation period pursuant to ss 60C and E of the Limitation Act 1969.

Sections 60C and E 33 Section 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides: "Ordinary action (including surviving action) 60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 34 The cause of action arose on 24 June 1992 five years from that date is 24 June 1999. The motion was not filed until 20 June 2000 which is outside the five year period specified by s 60C(2). The plaintiffs' claim under ss 60C an 60E fails.

Cross claims 35 The third defendant submitted that the cross claims were out filed of time and leave is required to do so. 36 The third defendant submitted that the cross claim was statute barred pursuant to s 26 of the Limitation Act. Section 26 of the Limitation Act provides: "Contribution between tort-feasors (1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of: (a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom he claims; and (b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action.

(2) For the purposes of paragraph (a) of subsection (1), the date on which a cause of action for contribution first accrues is: (a) if the plaintiff in the action for contribution or a person through whom he claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award - the date on which the judgment is given or the award is made, whether or not, in the case of a judgment, the judgment is afterwards varied as to quantum of damages; or (b) if, in a case to which paragraph (a) does not apply, the plaintiff in the action for contribution or a person through whom he claims makes an agreement with a person having a cause of action for the damage for which the cause of action for contribution arises, which agreement fixes, as between the parties to the agreement, the amount of the liability in respect of that damage of the plaintiff in the action for contribution or a person through whom he claims - the date on which the agreement is made.

(3) In paragraph (b) of subsection (1), the expression "the limitation period for the principal cause of action" means the limitation period fixed by or under this Act or by or under any other enactment (including an enactment repealed or omitted by this Act) for the cause of action for the liability in respect of which contribution is sought. (4) Nothing in this section affects the construction of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946. 37 The cross claims which seek contribution under s 5 of the Legal Reform (Miscellaneous Provisions) Act have to be commenced within the time periods stipulated in s 26(1) of the Limitation Act, whichever of these periods first occur. The two time periods are either two years from the date when judgment (if any) is entered against it, or four years from 24 June 1995 ie. by 24 June 1999. The first period has not commenced to run as judgment has not been entered against the first defendant/cross claimant. The first cross claim was filed on 26 June 1999 and the second cross claim was filed on 21 June 1999. Both cross claims were filed by 24 June 1999. The cross claims have been brought in time. No leave is required. In any event the solicitors for Hospital Corporation consented to the filing of the second cross claim. 38 Costs are discretionary. The costs occasioned by the adjournment on 29 November 2000 were because the plaintiffs had not filed affidavit evidence deposing to their knowledge. Only their solicitor had filed an affidavit. The plaintiffs or their legal representatives are to pay the defendants' costs including costs of the proposed third defendant thrown away on 29 November 2000, otherwise costs should be costs in the cause. 39 The orders I make are:

(1) Leave is granted to extend the limitation period against the third defendant Hospital Corporation Australia Pty Limited in respect of tort claims concerning the ultrasound performed on 17 February 1992. Leave is not granted in relation to the claims relating to breach of contract against Hospital Corporation Australia Pty Limited.

(2) The plaintiff is granted leave to add Hospital Corporation Australia Pty Limited as the third defendant in these proceedings.

(3) Leave is granted to file a further, further, further amended statement of claim (FFFASC) within 14 days.

(4) The plaintiffs are to pay the defendants' costs thrown away by the adjournment granted on 29 November 2000, otherwise costs are costs in the cause. **********

Last Modified: 03/07/2001 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.