Cook v Endovasive P/L & Ors

Endovasive Pty Limited (First Defendant) PARTIES : Dr Niven (Second Defendant)

Wentworth Area Health Service (Third Defendant) FILE NUMBER(S) : SC 20119/2002 Mr R Page (Plaintiff) COUNSEL : Mr S Woods (Second & Third Defendants) Mr R Glover, Glover & Glover (Plaintiff) SOLICITORS : Ms R Simpson, Frances Allpress (Second & Third Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20119/2002 - DENETA COOK v ENDOVASIVE PTY LIMITED & 3 ORS

JUDGMENT (Extension of time to commence proceedings - ss 60C & E Limitation Act 1969 (NSW)) 1 MASTER: By notice of motion filed 17 July 2002 the plaintiff seeks an order extending the time within which to commence proceedings against the defendants pursuant to ss 60C and 60G of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on her affidavit sworn 23 August 2002, the affidavit of Terence David Honan sworn 17 July 2002 and the affidavits of Richard John Glover sworn 22 October 2003, 22 December 2003 and 2 July 2004. The second and third defendants are the defendants remaining in these proceedings and relied upon the affidavit of Robyn Maree Simpson sworn 2 September 2003. 2 The second defendant is Dr Niven the obstetrician who performed the tubal ligation. The third defendant is the Wentworth Area Health Service. Proceedings have been settled as against the first and fourth defendants. On 20 February 2002 the Supreme Court of Queensland cross-vested these proceedings to this Court. 3 The plaintiff alleges that she was given negligent advice in relation to sterilisation and the tubal ligation was performed in a negligent manner. 4 For the purposes of this application I have taken the plaintiff's evidence at its highest. The plaintiff was cross-examined and I accept her evidence. The plaintiff was born on 28 August 1969, is currently 35 years of age and resides in Queensland. She left school after Year 10. On 30 August 1997 she married Gary Cook. She is presently separated from her husband, who is unemployed. She is the mother of six children - namely, Damien McAlister-Cook, born 11 May 1991; Kayley McAlister-Cook, born 9 December 1992; Sharnee McAlister-Cook, born 18 July 1994; Cheyenne McAlister-Cook, born 29 March 1996; Jacob McAlister-Cook, born 1 September 1997 and Zackaria McAlister-Cook, born 29 September 1999. 5 While pregnant with her third child, Sharnee McAlister-Cook, the plaintiff had a consultation with her general practitioner Dr Kathryn Fluker in Windsor. On 28 April 1994 Dr Fluker wrote a referral to Dr Niven stating that the plaintiff would prefer an elective lower section caesarean section (LSCS) and would like a tubal ligation performed at the same time. 6 Subsequently, the plaintiff consulted Dr Niven at Hawkesbury Hospital. During that consultation Dr Niven advised that the plaintiff should undergo a caesarean section but that it was dangerous to have any more children and recommended that the plaintiff have a sterilisation procedure performed at the time of delivery of her third child. Dr Niven then explained that she would be applying clips to the plaintiff's fallopian tubes. Dr Niven gave the plaintiff a simple demonstration showing the plaintiff a model of a tube and a clip and informed the plaintiff that the procedure had a one in five hundred risk of failure. 7 During cross-examination the plaintiff gave evidence that when she left Dr Niven's rooms she understood three things, namely that the sterilisation procedure was her best option, that it was a reversible procedure and that it had a 1 in 500 chance of failure. When the plaintiff was cross-examined about whether Dr Niven referred to the failure of the "Filshie clips" she said that at that time she understood that they were "clips" and that it was later when she read the newspaper article that she came to know about "Filshie clips" (see also para 47 plaintiff's aff). 8 On 18 July 1994 the plaintiff delivered her third child, a daughter, Sharnee McAlister-Cook at the Hawkesbury Hospital. Dr Niven performed both the caesarean section and the sterilisation procedure. 9 On 29 March 1996 Dr Mottarelly delivered Cheyenne McAlister-Cook by caesarean section at Gladstone Hospital. About one month before the birth of Cheyenne, the plaintiff had a consultation with Dr Mottarelly wherein she explained that she had previously undergone a sterilisation procedure in which Filshie clips were attached to her fallopian tubes. The plaintiff had a spinal anaesthetic prior to the caesarean and was conscious throughout the procedure. She recalls and contends that during the procedure Dr Mottarelly spoke to some of the other medical staff in the operating theatre and said to them that "the clips looked fine, were tight and were working properly" and that "the clips looked like they were in the right position and were doing what they should have been doing". Thus, the plaintiff believed she was the 1 person in 500 who fell pregnant for some unknown reason (plaintiff, aff para 38). 10 In January 1997, while pregnant with her fifth child, Jacob, Dr Fluker advised the plaintiff that sometimes when clips are applied at the time of birth, the fallopian tubes are still very swollen and when the swelling goes down it sometimes means that the clips are not tight and become ineffective. 11 In about March 1998, the plaintiff contacted a solicitor whose name she located in the Yellow Pages telephone book. She cannot recall his name but contends that the solicitor advised the plaintiff that he did not think she had any prospects of bringing a claim because the plaintiff had signed a consent form, which would have meant the doctor was not liable for any failures arising from the procedure. On the basis of this discussion, the plaintiff thought that she had no prospects of bringing a claim. Thus, up until March 1998, the plaintiff accepted legal advice that she had no basis to take legal proceedings. 12 While the plaintiff was aware that clips were to be applied to her fallopian tubes at the first consultation with Dr Niven, the plaintiff did not realise that these clips were likely to be 'Filshie clips' until she read an article in the Courier-Mail in April 1999 which described a large number of women who had become pregnant after the use of the Filshie clips. This is the first time she realised that the plaintiff was probably not just one of the unlucky "1 in 500" but that there appeared to be a problem with the Filshie clip sterilisation procedure. After reading the article, on April 19 1999, the plaintiff contacted Mr Terry Honen at McInnes Wilson Lawyers who was acting for a number of other women who had fallen pregnant after a similar procedure. 13 It was not until the plaintiff contacted McInnes Wilson on 19 April 1999 that she realised that her failed sterilisation procedure was likely to have been caused through the fault of the treating doctor, hospital, manufacturer or distributor of the Filshie clips. It was only at this time that the plaintiff became aware of the identities of the manufacturer and distributor of the Filshie clips. After the plaintiff contacted her solicitors these proceedings were commenced promptly. On 30 June 1999 by A Writ of Summons filed in the Queensland Supreme Court. 14 On 29 September 1999 the plaintiff underwent a bilateral salpingectomy. The Filshie clips that were attached to her fallopian tubes were removed and were sent to pathology to be analysed. Dr Han-Jeremy Krause (report 3 September 2002) of Queensland Health and Pathology Service provided a histopathology report. He concluded that the histological features are more consistent with a residual original fallopian tube lumen which has escaped complete occlusion by the clip. Dr Adam opined (report 3 September 203) that the failure of the sterilisation procedure was due to operator error in that the clip had not been placed completely over the right tube.

The Law 15 The plaintiff relies on ss 60G and I and/or 60C and E of the Act. 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; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, Unreported, 7 March 1997); Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. 16 Sections 60C and 60E are contained in subdivision 2. Subdivision 2 is headed 'secondary limitation period' of the Act. Section 60F is contained within subdivision 3 of the Act. Subdivision 3 also applies to causes of action that accrue on or after 1 September 1990. Section 60F provides for further discretionary extension of limitation periods for causes of action accruing on or after 1 September 1990. 17 The plaintiff's cause of action most likely arose late in June early July 1995. The limitation period expired in early July 1998. The statement of claim was filed on 30 June 1999, which is about 12 months after the limitation period expired and about 4 years after the cause of action arose. The defendants contend that they were not served with the statement of claim until June 2000. In Murray v Whiting & Ors [2002] QSC 257 the mother claimed firstly for pain and suffering during pregnancy and birth and secondly for loss of income and expenses in maintaining the child. Chesterman J at para [27] stated that the plaintiffs' claim does give rise to different causes of action. According to Chesterman J, the alleged facts, if proved, would give rise to a right to damages for the economic loss incurred in raising their child. For an economic loss claim the facts necessary to establish that cause of action did not include a personal injury to either plaintiff. Thus it was no part of the cause of action that the plaintiff suffered any injury, pain or impairment. The cause of action was not in respect of personal injury. Section 11 of the Limitation of Actions Act 1974 (Qld) was no bar to the claim for economic loss. The relevant time limit being six years. 18 The plaintiff made the same submissions in this case, namely that the economic loss claim is not statute barred and it would be unreasonable to only allow the plaintiff to argue only one component of her claim. I do not necessarily agree with Chesterman J's characterisation of those causes of action because without the occurrence of the birth there would not be any claim for economic loss. However, for reasons I will give it is unnecessary for me to determine this issue. 19 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." 20 Section 60E provides: "Matters to be considered by the court

60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff's injury or loss." 21 In relation to ss 60C and 60E of the Act, Mason P in Council of the City of Sydney v Zegarac at 197 referred to propositions that were uncontroversial. They are:

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

(3) In exercising the discretion, the court is required "to have regard to all the circumstances of the case" (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) "to the extent that they are relevant to the circumstances of the case".

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's second reading speech that are set out in the order judgments, and which McHugh J discusses in Taylor at 552-553.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well-known principles. 22 Justice Powell in Council of the City of Sydney v Zegarac at 240-241 stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA's further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do. Secondly, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made, lies on the applicant. 23 The principles concerning prejudice have been considered in Wynter, by the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at para 119 where their Honours stated that the effect of the High Court decision in Brisbane South Regional Health Authority v Taylor 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. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122. 24 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 25 As previously stated, the plaintiff's cause of action most likely arose late in June early July 1995. The limitation period expired in early July 1998. The statement of claim was filed on 30 June 1999, which is about 12 months after the limitation period expired and about 4 years after the cause of action arose. The defendants contend that they were not served with the statement of claim until June 2000. 26 The plaintiff's explanation for delay is that it was only on 19 April 1999, when she contacted McInnes Wilson in relation to a Courier-Mail article on women who had fallen pregnant after a similar procedure to that performed on her, that she realised that her failed sterilisation procedure was likely to have been caused through the fault of the treating doctor, hospital, manufacturer or distributor of the Filshie clips. It was after the statement of claim was filed that the plaintiff, was contacted by the pathology clinic. It was as a result of these investigations that the plaintiff came to understand that one of her fallopian tubes had not been properly closed. Extent to which delay caused evidence to be lost - s 60E(b) 27 Clinical notes of Hawkesbury Hospital relating to the Filshie clip sterilisation procedure and birth of Sharnee McAlister-Cook are available. Clinical notes and medical records of Gladstone Hospital relating to the birth of Cheyenne Grace McAlister-Cook; clinical notes and medical records of Hawkesbury Hospital relating to the birth of Jacob McAlister-Cook; clinical notes and medical records of Gladstone Hospital relating to the birth of Zackaria McAlister-Cook, and bilateral salpingectomy procedure are available. 28 On 6 August 1996, the Hawkesbury Hospital was sold and closed. The Hospital has operated as a private hospital since then. However, after the sale of Hawkesbury Hospital, all medical records, including documents relating to the purchase, maintenance and servicing of hospital equipment were archived by the Wentworth Area Health Service (WAHS) at the Governor Phillip Nursing Home, Glebe Place, Penrith, NSW. Despite a search instigated to locate the Hospital records in relation to the purchase, maintenance and servicing of the Hospital's Filshie equipment, no documents were located are no longer in the possession of the WAHS.

The time at which the injury became known to plaintiff - s 60E(c). Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(d), (e) and (h) 29 The nature and extent of the costs of raising a child would have become known when the child, Cheyenne was born on 29 March 1996 as the plaintiff was already involved in raising other children. The plaintiff would have been aware of the pain and suffering during her pregnancy and birth of Cheyenne when it occurred.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f) 30 There is no conduct by the defendant which induced the plaintiff to delay bringing action. Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 31 Aside from the clinical hospital notes already referred to, the plaintiff has obtained expert opinion from Drs Adam, Korda and Krause. The plaintiff has obtained a report from a psychologist, Mr Steven Morgan dated 8 August 2001 and an economic loss report by Vincents dated 10 July 2002. Part 33 particulars have been filed. These documents have all been served.

Just and reasonable 32 I turn now to consider whether it is just and reasonable to extend the limitation period. It is not disputed that the plaintiff has a real cause of action to advance in relation to the application Filshie clips but it is disputed by the defendant that the plaintiff has a real case to advance in relation to the informed consent issue. 33 The plaintiff pleads that the advice given by the second and third defendants were negligent in that they failed to advise her that in the application of the Filshie clips there was a possibility that a small segment of the fallopian tube may not be enclosed in the jaws of the clip giving rise to the risk that the sterilisation procedure may not be effective. The plaintiff submitted that had she been advised of the possibility she would not have undergone the surgery and in consultation with her partner would have sought another form of sterilisation and continued to use other forms of contraception. The defendants submitted that the plaintiff's evidence does not establish a prima facie case. The plaintiff on her own evidence was advised that there was a 1 in 500 chance that tubal ligation would fail. Dr Korda has provided expert evidence on the topic of warnings that should be given to a patient about tubal ligation (pp 5 &6). 34 Dr Korda states: "A woman undergoing a sterilisation procedure ought to be warned that all methods of contraception have a failure rate as well as inherent risks. She should be told that tubal sterilisation is remarkably safe, that death is rare, that there is no late sequelae of sterilisation and in additional to providing excellent contraception, tubal ligation is also associated with a reduced risk of ovarian cancer." 35 Dr Korda agrees that the incidence of failure with a Filshie clip tubal ligation is in the vicinity of 0-2.1000 tubal ligations. Dr Korda also states that tubal ligation performed at the time of a caesarean delivery, is no more likely to fail than at other times. However, Dr Korda's report does not cover other alternative methods sterilisation which may have been available to the plaintiff. It is my view that the plaintiff has a prima facie case on the informed consent issue. 36 The second and third defendants submitted that they will suffer significant prejudice because of the absence of the Hawkesbury Hospital documents in relation to the operation, servicing/calibration of the Filshie clip applicators. However, it is not clear what records from Hawkesbury Hospital remain in existence, or rather whether it is only these documents that are missing from archives. The loss of these records means that the defendants have lost the opportunity to file cross-claims against the former first and fourth defendants (see Wintle v Conaust (Vic) Pty Ltd & Ors [1989] VR 951 at 967.40). 37 Dr Korda outlines threes causes by which the sterilisation procedure may fail (p 6). One cause is the failure of the operator to perform a satisfactory procedure. Structures other than the Fallopian tube may be operated upon, for example the round ligament or a fold of peritoneum between the round ligament, and the Fallopian tube may be clipped, ringed or cauterised. Also a tube could be incompletely cauterised, or incompletely clipped or ringed. If the clip equipment is not assembled or maintained correctly, incomplete closure may occur leading to failures. 38 The second and third defendants submitted that they will be further prejudiced in that Dr McGree's records have not been produced, the plaintiff has not kept receipts relating to the costs of raising the child to date and it has lost the opportunity to have the plaintiff psychiatrically or psychologically examined from at least 1998 to June 2000. 39 No subpoena has been issued to the practice of Dr McGree. The plaintiff consulted both Dr Maurice McGree and his nephew Dr Colan McGree. While Dr Maurice McGree has retired, his nephew is a member of the same practice. The relevance of these records are these doctors wrote referrals to a psychiatrist. They are both able to give evidence. The psychologist Dr Morgan in his report dated 8 August 2001 concluded which he concludes that he did not believe that the plaintiff was suffering from any psychological condition although the situation in a general sense is rather precarious and the plaintiff must be considered at risk of further distress (para 42). The defendant can have the plaintiff's psychologically assessed in the light of the contents of reports served this does not form a large part of the claim. The plaintiff has served a report on the costs of raising a child by Vincents dated 10 July 2002. It refers to studies conducted by the Australian Institute of Family Studies. 40 It is the loss of the records relating to the servicing and calibration of the machine and the loss of the opportunity to cross-claim that give rise to a less than ideal trial. The records of the operation are in existence. But it is my view that the parties will be afforded a fair trial. It is just and reasonable to extend the limitation period. 41 Costs are discretionary. In Wynter, Sheller JA at paras 147-148 stated that, in relation to costs, ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The defendants' opposition was not wholly unreasonable. The plaintiff should pay the defendants' costs. 42 The court orders that:

(1) The plaintiff be granted an extension of the limitation period up to and including 23 September 2004 as against the second and third defendants.

(2) The plaintiff is to pay the second and third defendants' costs as agreed or assessed. **********

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