Fletcher v Hamilton-Gibbs & another

[2013] NSWSC 77

Supreme Court of NSW|2013-03-06|Before: Adamson J

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Source facts

Court

Supreme Court of NSW

Decision date

2013-03-06

Before

Adamson J

Catchwords

PRACTICE AND PROCEDURE- summary dismissal of claim as abuse of process-prejudicial effect of delay-whether fair trial possible when evidence lost or unreliable by reason of effluxion of time

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Original judgment source is linked above.

Catchwords

PRACTICE AND PROCEDURE- summary dismissal of claim as abuse of process-prejudicial effect of delay-whether fair trial possible when evidence lost or unreliable by reason of effluxion of time

Judgment (22 paragraphs)

[1]

Introduction 1By notice of motion filed on 8 March 2011, the second defendant seeks orders in the alternative that the proceedings be dismissed, the statement of claim be struck out or that the proceedings be permanently stayed. These orders are sought principally on the grounds that the plaintiff has not prosecuted the proceedings with due despatch or that their continuance amounts to an abuse of process. 2By notice of motion filed on 11 October 2012, the first defendant seeks similar orders on a similar basis.

[2]

The plaintiff's case 3The plaintiff alleges that in the period from February 1975 until 1982, she sought and obtained advice and treatment from Dr Hamilton-Gibbs (the first defendant), a general practitioner who practised at the Young Boorowa Street Medical Practice in the town of Young in central western New South Wales. She alleges that she reported headaches, weakness and involuntary falls of increasing severity during this period. In 1982 she consulted Dr Durey (the second defendant), a general practitioner in the same practice, for advice and treatment and reported the same symptoms, together with an additional symptom of incontinence. 4It is common ground that on 17 September 1982 the plaintiff consulted Dr Whiley, a general practitioner in Cowra who also specialised in obstetrics and gynaecology. Dr Whiley conducted a thorough neurological examination as a result of which he suspected that she might have multiple sclerosis. He referred her, by letter dated 20 September 1982, to Dr Gordon, a neurologist, who rejected multiple sclerosis as an diagnosis but postulated various other conditions, one of which was hydrocephalus, with which the plaintiff was ultimately diagnosed. 5She was admitted to Orange Base Hospital and then transferred to Royal Prince Alfred Hospital (RPA) where she came under the care of Dr Michael Besser, a neurosurgeon. 6After her admission to RPA on 23 September 1982, the plaintiff had a CT scan of her brain. 7On 28 September 1982 Dr Besser carried out a burr hole and ventricular catheter insertion with a ventriculogram. 8She was diagnosed with congenital hydrocephalus consequent on aqueductal stenosis. Hydrocephalus is an excessive volume of cerebrospinal fluid on the brain, which gives rise to an increase in pressure on the brain and, if not relieved, to brain damage. Cerebrospinal fluid circulates around the brain, or meninges, and is ultimately absorbed into the blood stream. It is produced in the lateral, or horn-shaped, ventricles. It passes to the third ventricle and then through the cerebral aqueduct, or aqueduct Sylvius, through a fibrous sheath known as the tentorium that separates the upper brain from the lower brain. It then passes to the fourth ventricle. 9The aqueduct Sylvius can become narrowed either through congenital narrowing, as in the plaintiff's case, or by reason of a tumour or other lesion. Congenital stenosis typically occurs slowly over a long period of time. 10Where stenosis occurs, production of cerebrospinal fluid exceeds absorption which causes cranial pressure to rise. In children less than two years old, this pressure is relieved by the expansion of the skull but in older patients, whose skull bones have fused, the pressure must be relieved operatively. 11The build-up of pressure affects the brain and, ultimately, manifests itself in neurogenic incontinence, ataxia and headaches, each of which is an indication that brain damage as a result of increased cranial pressure has occurred. 12On 30 September 1982 the plaintiff underwent a right frontal craniotomy for a third ventriculostomy to create an opening to overcome the obstruction to the flow of cerebrospinal fluid from the third to the fourth ventricles. The operation revealed a cerebral haemorrhage. 13Post-operatively the plaintiff was found to be decerebrate. Decerebration occurs when part of the upper brain is pressed through the hole in the tentorium, compressing that part of the brain and the structures beneath the tentorium. Decerebration causes the removal of the higher centres of the brain by cutting across the brain below the cerebrum so that cerebral functions are eliminated. Subsequently a CT scan showed the development of a large deep intracerebral haemorrhage in the right parietal-occipital region which subsequently developed into a haematoma. 14The plaintiff alleges that since 1 October 1982 she has suffered brain damage, intracerebral haematoma, dense left hemiplegia resulting in paralysis in both left limbs and anxiety and depression. 15The plaintiff's case against the defendants is that, had they discharged the duty of care they owed to her, she would have been referred to a specialist neurologist or neurosurgeon earlier and she would not have suffered the cerebral haemorrhage which caused brain damage and hemiplegia. It appears to be common ground that had the plaintiff not suffered a cerebral haemorrhage she would not have suffered hemiplegia, although there may have been some brain damage consequent upon the increase in cranial pressure from the aqueduct stenosis. 16Breach, causation and damage are in issue. The defendants allege that the symptoms reported to them and the signs present on examination were not such as to require them, as a matter of reasonable care and diligence, to refer the plaintiff to a specialist for neurological review. They submitted that the plaintiff cannot establish to the requisite standard that had she been referred at an earlier time, the cerebral haemorrhage would not have occurred since it could have occurred as a result of sudden ventricular decompression, caused by the ventriculostomy itself or it could have been caused as a known complication of the insertion of a tube through the brain tissue to reach the ventricles. In that latter instance, the timing is not determinative because the plaintiff would have had to have the ventriculostomy in any event to overcome the aqueduct stenosis. The defendants submitted that any breach established against either or both of them was not causative of loss. Further they submitted that it is not possible to say that the risk of decompression would have been materially lower had she been referred to a specialist earlier. 17The defendants relied, in part, on the following passage in a report of Dr Gordon, treating neurologist dated 17 October 1991 served by the plaintiff: ". . . Firstly the appropriate treatment which would have been entertained if a proper diagnosis had been made early in her case would not have differed from the treatment that she was given in Prince Alfred. It is pure supposition to say what Mrs. Fletcher's condition would be now had she undergone appropriate treatment earlier than she did. If she did not have the cerebral haemorrhage as she did then I would expected her to have very little in the way of physical and mental disability. The haemorrhage may have occurred in any case but I have said previously that I believe that the haemorrhage was made more likely to occur because of inappropriate delay in appropriate treatment." 18They also relied on the following passage in the report of Dr Dan, neurologist: "It is difficult to say that the intracerebral haemorrhage was more likely to occur because of an inappropriate delay in a surgical procedure." 19The defendants submitted that the issue of damage is also vexed since the plaintiff may have suffered permanent brain damage solely as a result of the hydrocephalus, before she suffered the cerebral haemorrhage. As referred to above, brain damage is indicated by ataxia, dementia and incontinence. The timing of onset of those symptoms (as distinct from the reporting of same, which is relevant to breach) needs to be determined before any assessment of damage, and accordingly damages, can be made, even if breach and causation were otherwise determined in the plaintiff's favour.

[4]

The attempted joinder of Dr Michael Besser and the Central Sydney Area Health Service (CSAHS) 23A week after the matter had been set down for hearing the plaintiff sought, by motion filed on 21 February 2000, leave to file a further amended statement of claim joining Dr Besser and the CSAHS, which is responsible for RPA. On 4 June 2001 Registrar Howe granted leave to the plaintiff to file the further amended statement of claim. 24By motions filed respectively in July and August 2001, Professor Besser (the third defendant) and the CSAHS (the fourth defendant) sought dismissal of the proceedings as against them, a permanent stay or a review of the Registrar's decision to permit their joinder. 25By notice of motion filed on 4 February 2002, the plaintiff sought a declaration under s 52 of the Limitation Act that from September 1982 until December 1990 she was under a disability and that the limitation period ought to be extended as against the third and fourth defendants. 26The motions brought by the third and fourth defendants and by the plaintiff were heard by Studdert J who, on 1 October 2002, set aside the decision of Registrar Howe to grant leave to the plaintiff to file the further amended statement of claim joining the third and fourth defendants and dismissed the plaintiff's application to extend the limitation period as against the third and fourth defendants: Fletcher v Hamilton-Gibbs & ors [2002] NSWSC 899. 27The plaintiff sought leave to appeal against the orders made by Studdert J. Leave was granted on 30 June 2003. The Court of Appeal dismissed the plaintiff's appeal on 4 May 2004: Fletcher v Besser & anor [2004] NSWCA 132. On 4 March 2005, the High Court refused the plaintiff's application for special leave to appeal: Fletcher v Besser & Anor [2005] HCATrans 99. 28The plaintiff then served new particulars of negligence against the third and fourth defendants and, by notice of motion filed on 10 October 2005, renewed her application for an extension of time within which to bring proceedings against them. Adams J heard the plaintiff's application in late 2007 and early 2008 and, on 6 March 2009, refused to make the orders sought: Fletcher v Hamilton-Gibbs & ors [2009] NSWSC 124. On 9 March 2010 the Court of Appeal dismissed plaintiff's application for leave to appeal: Fletcher v Besser [2010] NSWCA 30. No application for special leave to appeal to the High Court was made. 29In summary, the plaintiff's unsuccessful attempts to join the third and fourth defendants to the proceedings began on 21 February 2000 and ended a decade later, on 9 March 2010. The defendants submitted, and the plaintiff did not submit to the contrary, that there was no endeavour by the plaintiff during that period to prosecute her claim against the defendants.

[7]

The applicable principles 39The Court has power to dismiss proceedings if the plaintiff does not prosecute them with due despatch: Uniform Civil Procedure Rules (UCPR) r 12.7(1) or if they are an abuse of the process of the Court (UCPR r 13.4(1)(c)). 40Section 58 of the Civil Procedure Act 2005 (the Act) applies, relevantly, to any order for the management of proceedings including granting a stay of proceedings. Orders to dismiss proceedings for want of due despatch or as an abuse of process are perhaps the most extreme orders that could be made for the "management of proceedings". In considering, as I am obliged to by s 58(2) of the Act, the "dictates of justice" I am bound to have regard to s 56 and s 57: Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 per Allsop P at [38]. I would, in any event, be bound by s 56(2) to give effect to the overriding purpose of the Act identified in s 56(1) when considering whether to exercise the power to dismiss proceedings under UCPR r 12.7 or r 13.4. 41The interaction between UCPR r 12.7 and s 56 of the Act was recently considered by the Court of Appeal in State of New South Wales v Plaintiff A [2012] NSWCA 248 (Plaintiff A). Basten JA, with whom Beazley and Hoeben JJA agreed said: "[17] Although there is authority for the proposition that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits absent intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible - see Birkett v James [1978] AC 297 at 318 - the stringency of that principle has been diminished by the enactment of ss 56-60 of the Civil Procedure Act. Further, a proceeding will involve an abuse of process in circumstances where the objective effect of the lapse of time since the cause of action arose is to render a fair trial impossible, despite the absence of any moral delinquency, oppressive conduct or misconduct on the part of the plaintiff: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [69]-[70]. [18] Despite the fact that misconduct on the part of a plaintiff is not a precondition to a finding of abuse of process, the reasons for any delay are relevant considerations. Thus, it would be a rare case in which a defendant could complain of unfairness where the delay was in large part due to the defendant's own behaviour. By parity of reasoning, a court is likely more readily to find an abuse of process where there is culpable misconduct on the part of a plaintiff. . . . [77] . . . However, the cause of the delay, the available evidence, the attempts to obtain evidence in a timely fashion and the nature of the claim are all factors to be taken into account." 42Different considerations apply to the present application than for an application for an extension of time under the Limitation Act such as was considered by the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25;186 CLR 541 (Brisbane South). However, as Bryson JA, with whom Mason P and Giles JA agreed, said in Newcastle City Council v Batistatos [2005] NSWCA 20 (Batistatos CA), at [60], the first of the rationales for limitation periods is relevant to applications such as the present. The first rationale was identifed by McHugh J in Brisbane South in the following terms at 552: ".. . . as time goes by, relevant evidence is likely to be lost." 43I accept the defendants' submission that the following passage from McHugh J's judgment in Brisbane South at 551 is also apposite to the present application: "The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed." [Footnotes omitted.] 44Bryson JA in Batistatos CA at [61] highlighted the importance of the identifying the object of an inquiry for information and evidence and said: "The question whether information is sufficiently available to the defendants, on their making reasonable inquiries, to make it possible for a fair trial on the plaintiff's allegations to take place has to be considered in association with what the plaintiff's allegations are." 45The High Court in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 (Batistatos HC) endorsed Bryson JA's approach, including the following passage from Batistatos CA at [80] which is set out at [54] of the judgment of the plurality (Gleeson CJ, Gummow, Hayne and Crennan JJ): "The [Limitation Act] cannot in my view close the court's eyes to the practical inability of reaching a decision based on any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis."

[8]

The parties' submissions 46Mr Villa, who appeared on behalf of the second defendants, but who made submissions effectively on behalf of both defendants, submitted in summary: (1)The instant case involved an abuse of process because the objective effect of the lapse of time since the cause of action arose renders a fair trial impossible, notwithstanding the absence of moral delinquency or misconduct on the part of the plaintiff. (2)There was substantial presumptive prejudice that arises from the fact, and length, of delay. (3)The defendants were actually prejudiced by the delay since the primary facts of what history the plaintiff gave each of the defendants and when, and what symptoms and signs she was suffering at what time could no longer be determined because of the time that had passed between the events and the likely hearing date. In support of their submissions they referred to the evidence adduced on the application, including contemporaneous notes, affidavits, statements and medical reports. (4)The defendants were actually prejudiced by the deaths of relevant witnesses and the loss of records. The matters of particular prejudice were: (a)The death of the plaintiff's husband who was the only adult witness who could give evidence as to the plaintiff's incontinence at the time and whose contribution to her care constituted the basis for a substantial claim for gratuitous care which, at its highest, amounted to $23m. (b)The loss of the CT scan taken at RPA on 23 September 1982 and the ventriculogram taken on 28 September 1982, although the reports were still in existence. (c)The apparent incompleteness of Dr Whiley's notes and the records of the Young Retirement Village. (5)These difficulties of determining the primary facts affected not only the plaintiff's claim but also the cross-claims between defendants, which were pre-eminently affected by the timing referred to above. (6)There was also actual prejudice arising from the cloud that continued to hang over the defendants' reputations as professionals. (7)The defendants suffered the additional prejudice that the damages for which they were potentially liable might have been aggravated by negligence on the part of Dr Besser in performing the surgical procedures in September 1982 but that, because of the passage of time and the effect of s 26 of the Limitation Act, they could not bring a cross-claim against Dr Besser. (8)Although the plaintiff's decision to apply to join Dr Besser and the CSAHS out of time was understandable forensically, it carried with it the potential consequence that the proceedings against the defendants would amount to an abuse of process because of the delay occasioned by that application. (9)The passage of time and the absence of evidence to the contrary meant that the Court could reasonably conclude that the plaintiff's care was adequate and her needs were being met without compensation. Furthermore the plaintiff's husband, in respect of whose services any damages for gratuitous care might be awarded, was deceased and accordingly incapable of benefiting from any award of damages to the plaintiff. 47Mr Bridge SC, who appeared on behalf of the first defendant, adopted Mr Villa's submissions and made the additional submission that the first defendant was, through no fault of his own, uninsured and had to keep practising to pay for the litigation which he deposed had cost him $200,000 to date. The first defendant is now 76 years old. 48Mr Agius SC, who appeared on behalf of the plaintiff, submitted, in summary, that: (1)It could not be said that the plaintiff's case was so hopeless that she had no chance of succeeding in her claim (in the sense of General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129 and Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91) and in those circumstances it could not be in the interests of justice to dismiss the claim. (2)It would not be appropriate to deprive the plaintiff of her right to have her claim determined at trial where there is a serious factual issue, the resolution of which depends in part on credit: Spellson v George [1992] NSWCA 254; 26 NSWLR 666 (Spellson), at 678 per Young AJA. (3)Section 56 of the Act has no detrimental effect on the plaintiff with respect to this application. (4)The plaintiff's unreliability as a historian could be explained in part by the underlying condition and that this was to her detriment, rather than to the defendants, who could rely on their clinical notes. (5)There was significant corroboration of the plaintiff's contemporaneous complaints from her mother, her husband her son, Mark and her daughter, Jeanette Pye. Dr Fitzgerald, the expert neurologist, was able to opine as to what her symptoms would have been, in light of her presentation in September 1982 and Dr Besser's findings on surgical procedure. (6)The deaths of the plaintiff's husband on 24 November 2012 and her mother on 13 May 2001 could also operate to the plaintiff's detriment since they were no longer available to give evidence. (7)That the first defendants has been able to obtain expert reports from Dr Johnston dated 9 October 2012 and Dr Owler, neurosurgeon, dated 28 August 2012 indicates that it is not impossible for the defendants to defend the claim with appropriate expert evidence. (8)The plaintiff ought not be punished for her decade-long endeavour to join Dr Besser and the CSAHS since, had this application been successful, the defendants would have benefited. (9)Although no estoppel arose from the defendants' failure to apply to have the proceedings dismissed at an earlier time or to oppose the vacation of the hearing date in 2000, the defendants' conduct and the fact that they might have benefited had the application succeeded meant that they were in no position to complain about the passage of time in the interim. (10)Although the defendants could not cross-claim against Dr Besser, they would have been out of time for such a cross-claim before 2000, when the matter would otherwise have been heard, but for the plaintiff's application to join him and that therefore this is not a relevant prejudice. (11) It would be open to the defendants to argue that they were not liable for any damage suffered by the plaintiff as a result of Dr Besser's negligence on the basis of novus actus interveniens. (12) The matters of which the defendants complain were all applicable in 2000 when the matter was first set down for hearing. The degree to which any prejudice has been aggravated by time is marginal and ought not outweigh the plaintiff's legal right to have her proceedings heard and determined at a trial. (13)No assumption could be made that an award of damages would not improve the plaintiff's care and quality of life. Furthermore although the plaintiff's husband had died, any damages for gratuitous care were the plaintiff's damages and consideration need not be given to whether any incidental benefit would flow to him, as the provider of such care, from any such award. (14)The loss of the opportunity to cross-examine lay witnesses such as the plaintiff's mother and husband was not detrimental to the defendants since such witnesses generally adhere to their evidence in chief in any event. 49In reply, the defendants submitted that: (1)The Court should not compare the prejudice which would be occasioned were the matter heard in 2014 or 2015 (being the realistic hearing time if the motions are dismissed) with the latest time on which a fair trial could have been held since the delay should be considered as a whole. (2)The defendants did not need to establish that the plaintiff's claim could not succeed in order to have it dismissed for want of due despatch or as an abuse of process. (3)Although the first defendants has served expert reports of Drs Johnston and Owler, these reports are at a high level of generality by reason of the difficulty of opining in the absence of significant records or reliable assumptions. (4)Any application the defendant had made to press for a hearing date of the proceedings against them when the application to join Dr Besser and the CSAHS was still outstanding would have been bound to fail because of the principle that it is desirable that all facts in issue between parties be determined in a single proceeding. (5)Dr Fitzgerald was, effectively, an advocate in the plaintiff's cause, rather than an expert. His evidence as to what the plaintiff's symptoms and signs "would have been" was affected by his lack of independence and also by hindsight. It is not possible to opine as to these matters having regard to the variable progression of aqueduct stenosis and the concomitant variability in the onset of various symptoms and signs such as would permit a diagnosis, even on a preliminary basis, to be made. (6)Although the authorities which predate the Act refer to similar principles as are reflected in s 56, the provision emphasises the importance of cases being determined in a timely way. Therefore the authorities prior to the commencement of the Act need to be applied with care.

[10]

The nature of the plaintiff's claim and the available evidence 53As Bryson JA said, in the passage set out above from Batistatos CA, it is important when assessing prejudice to identify the plaintiff's allegations to ascertain whether such allegations can be met by appropriate inquiries notwithstanding delay. Basten JA, in Plaintiff A, highlighted the relevance to the present determination of the available evidence, the attempts to obtain evidence in a timely fashion and the nature of the claim. I propose to consider these factors together since the plaintiff's allegations, the available evidence, when it became available and the nature of the claim are interrelated. 54As can be seen from the summary of the plaintiff's case set out above, a principal factual matter to be determined is what the plaintiff told each of the first and second defendants at each of the consultations. This is a matter seriously in issue. It is of paramount significance because the plaintiff by her senior counsel conceded at the hearing of this application that if the clinical notes were found to be an exhaustive and accurate record of what the plaintiff told the defendants, she cannot succeed in her claim. 55The considerable passage of time between the relevant events (1975-1982) and the likely hearing date (2014-2015) leads to an inference of presumptive prejudice. Importantly, one does not know whether relevant evidence has disappeared or did not exist. 56Considerable evidence was led by the defendants to establish the actual prejudice that delay has occasioned, the most significant of which is referred to below. 57The records show that the plaintiff was a patient of the first defendant from February 1975 until December 1981 and that during that period she also saw other practitioners from the same practice: Dr Guyon Purchas on 9 July 1976, 31 January 1978 and 7 February 1978 and Dr Charles Wood on 19 September 1975 and 4 November 1976. The records show that she saw the second defendant on four occasions between March 1982 until September 1982: 31 March 1982, 8 May 1982, 16 June 1982 and 14 September 1982. On 17 September 1982 Dr Whiley saw the plaintiff and referred her to Dr Gordon. 58Dr Purchas died on 3 July 1999. Dr Wood died in 1993. Dr Whiley died on 14 July 2000. 59The only record produced by Dr Whiley in the relevant period was his clinical note of a consultation on 17 September 1982. The clinical notes of the second defendant of the consultation on 31 March 1982 record that she was then seeing Dr Whiley. This is some indication that the records produced by Dr Whiley on subpoena are not complete. 60Neither defendant has any recollection of their consultations with the plaintiff. Their evidence is based on their clinical notes and their usual practice. 61The allegations made in the various iterations of the statement of claim are inconsistent with the clinical notes in various respects identified in the submissions. The defendants made detailed submissions on various events, including the last consultation between the plaintiff and the first defendant and the first consultation between the plaintiff and the second defendant. I propose to address both of these in detail because they illustrate the extent to which delay has deleteriously affected the prospects of a fair trial. 62The summary set out below of the evidence referable to these two consultations demonstrates some of the difficulties which would be involved in any fact-finding at a hearing of the matter. There are inconsistencies within the plaintiff's case, both between the pleadings and the evidence and between witnesses to be called and documents to be relied upon. The defendants' case depends on their clinical notes. They have neither recollection nor other contemporaneous documents with which to defend themselves against the increasingly detailed accounts given in support of the plaintiff's case by the plaintiff herself or by relatives who have either died or who were minors at the time of relevant events.

[11]

The last consultation between the plaintiff and the first defendant 63The last record of a consultation between the plaintiff and the first defendant is the clinical note of 29 September 1981, which reads: "working at village this am. Serving lunch. Vomited. Headache associated with giddiness. Xray cervical spine ordered. Reported as normal." 64The clinical record for 29 September 1981 appears in correct date sequence in the clinical notes between a consultation on 28 September 1981 and a record of a nursing sister taking the plaintiff's blood pressure on 8 December 1981. Neither the CT scan nor the report is available. The defendants submitted that this scan would at least have shown the bottom of the ventricular system of the plaintiff's head and that its unavailability is, accordingly, significant. 65The plaintiff, in the statement of claim, alleged that she sought and obtained treatment from the first defendant between 1975 and July 1982. The plaintiff's case is that the date of this clinical note is demonstrably wrong and that the note is unreliable because the only records produced by the "village", the Young Retirement Village, show that the plaintiff worked there for a short period in September 1980 and during no other period. However, in response dated 18 September 1992 to a request for particulars sought by the second defendant, the plaintiff gave the following particulars of her employment which are inconsistent with her present contention that she only worked there in 1980: "In or about June 1982 the plaintiff obtained employment at the Young Retirement Village as a relief cook. It was intended that the job become permanent. She was paid approximately $350 per week clear but after two or three weeks had to give up that employment because of her giddiness, tendency to fall, tendency to drop things and other symptoms for the treatment of which she had consulted the second defendant." 66The plaintiff relies on her own sworn evidence that she saw the first defendant for a consultation in January 1982. The time of the consultation is fixed during the period November 1981 to the end of February 1982, being the period during which the plaintiff's late mother, Dina Muller, was visiting Australia from the Netherlands, where she resided. Mrs Muller deposed in a statement dated 7 February 1997 that was served in October 2011 that she and her grandson, Mark, who was then 8 or 9 years old, accompanied the plaintiff to see the first defendant and that she and Mark waited in the waiting room until Mark went in to join his mother in the consulting room. 67Mrs Muller deposed that she accompanied the plaintiff on another occasion when she went to see the first defendant, in the course of which the deponent waited outside. Mrs Muller also deposed to her recollection of the symptoms about which the plaintiff wrote to her after February 1982, Mrs Muller having destroyed the letters when moving house "some years ago". 68Mark also gave evidence in a statement made on 11 July 1995 of his recollection of his mother symptoms in 1981-1982 when he was 8 or 9 years old and deposes to what occurred during a consultation between his mother and the first defendant while his grandmother was in Australia. 69In her affidavit sworn 6 October 2011, the plaintiff deposes to an incident in January 1982 when she heard "funny noises and felt strange in the head" and then fell down in the bathroom and could not get up. Her mother found her "moaning and groaning" on the bathroom floor and insisted that she return to the first defendant the following day. She deposes to relating the details of this incident to the first defendant who, according to her version, accused her of putting on an act to get her mother's attention. She deposes to further consultations with the first defendant relating to falls while her mother was still in Australia. She attributes to the first defendant advice that she should see a psychiatrist. 70The plaintiff's narrative of facts with which every expert except Dr Wilson has been briefed (Narrative of Facts) states, in relation to alleged consultations between the plaintiff and the first defendant in 1982: "During 1982 the plaintiff continued to consult with the first defendant. The plaintiff continued to advise the first defendant that she suffered from headaches, pain in the neck, falling down and difficulty driving her car. On one occasion the plaintiff was involved in an accident where she backed into a brick wall and on another occasion nearly knocked over a bicyclist. The plaintiff advised the first defendant of those incidents. He said words to the effect to her that she had better get the steering checked out on her car and see an optometrist." 71Notwithstanding the reference to accidents in the extract, the plaintiff in her letter of particulars dated 18 September 1992, denied that she had ever been involved in a motor vehicle accident.

[12]

The first consultation between the plaintiff and the second defendant 72It is common ground that the plaintiff saw the second defendant for the first time in March 1982. Relevantly his clinical notes record: Collapses on getting up from sitting 12/12 about every 2/52. . . . Seeing . . . Whiley Chiropractor for spinal problems. torticollis . . . 1 Stress incontinence 2 Tiredness . . . 73In the statement of claim the plaintiff alleges that she sought treatment from the second defendant for neck pain, headaches, weakness, episodes of collapse, unconsciousness and unsteadiness in walking as well as bladder incontinence. In the particulars dated 18 September 1992, the plaintiff confirms that she complained of each of these symptoms on each of the occasions on which she consulted the second defendant, which, by inference, includes the consultation in March 1982. 74In the particulars dated 18 September 1992, the plaintiff said that she consulted the second defendant in respect of the following symptoms in March 1982: "The plaintiff was experiencing and informed the second defendant of weakness in the arms and legs, tiredness, giddiness, falling, walking as though she was affected by alcohol, incontinence, tingles in the arms and legs, headaches and memory loss." 75The Narrative of Facts states: "In approximately March 1982 the plaintiff consulted the second defendant, Dr Durey, a general practitioner in Young. The plaintiff advised the second defendant of her problems including headaches, pain in the neck, falling down, pins and needles sensations in the hands and loss of bladder control. The second defendant did not carry out a physical examination, or proper physical examination of the plaintiff. The second defendant prescribed Valium for the plaintiff and arranged an appointment to see Mr Bruce Budd, a psychologist at the Young Community Health Centre." 76The second defendant submitted that the entry "stress incontinence" in the March 1982 note is consistent with a later reference to "bulky uterus" and "cystocoele" in the note for June 1982. Cystocoele is a prolapse in the base of the bladder which is usually caused by weakness in the pelvic floor after childbirth and causes bulging of the anterior wall of the vagina on straining. It may cause stress incontinence, which is the leak of urine on coughing and straining. This is to be distinguished from overflow incontinence, which is leakage from a full bladder and occurs in patients with neurological conditions affecting bladder control.

[13]

Additional matters that would complicate fact-finding at a trial 77There were, in any event, significant inconsistencies within the plaintiff's contemporaneous reporting of her history as well as between such reports and the case she maintains against both defendants. For example, Dr Whiley's letter of referral to Dr Gordon of 20 September 1982 reports: "Mrs Fletcher gives a rather vague history of being unwell for 6 or 7 months. Her symptoms have been one of episodes of giddiness, weakness in the legs with episodes of falling." 78Dr Gordon, in a consultation on 22 September 1982 at the Orange Base Hospital, noted that she was a vague historian and very slow. He records a six month history of: ". . . repeated falls- particularly after getting up from a seated position." 79These two reports are to be contrasted with the history the plaintiff is recorded as having given the second defendant in March 1982 (set about above) that indicates that the collapse when getting up from a seated position dates from March 1981. 80These histories are also to be contrasted with the history she gave to Dr Besser at RPA on 23 September 1982 that she had a history of sudden falls for at least ten months. She said that she suffered occipital headaches and urinary incontinence for four to six months. These periods are at odds with the substantially longer periods alleged in the statement of claim. The disparity in the reporting of these periods is of substantial significance to a determination whether either, both, or neither, defendant is liable. 81As referred to above, the plaintiff submitted that her versions were corroborated by evidence from her daughter, Jeanette Pye, who was living at home at the relevant time. Ms Pye was born in late 1968 and was about 13 in 1982. However, Ms Pye's statement made in 1996 when she was 27 is, in parts, at odds with other evidence, including the plaintiff's own and with contemporaneous clinical notes. For example, Ms Pye deposed: "I recall that during 1981 my mother consulted Dr Hamilton-Gibbs on a number of occasions sometimes as often as twice a week after she had episodes of falling down, incontinence and loss of balance." 82The first defendant's clinical notes record two consultations in 1981 on 28 and 29 September. There is no reference in either of them to incontinence. Nor is there any allegation in the statement of claim, either in its initial form or as amended, or in any subsequent draft served on the defendants that the plaintiff ever sought treatment from the first defendant in respect of incontinence. On the plaintiff's case as defined by the pleading, she first sought treatment for bladder incontinence in March 1982 from the second defendant. 83Some objective facts can, however, be discerned from Dr Whiley's examination on 17 September 1982, since it is common ground that this was a thorough neurological examination. One can, accordingly, reasonably infer that where negative findings are made, positive findings could not have been made by either the first or the second defendant had they conducted such examinations at earlier dates. Dr Whiley reported that the Babinski sign (which, if positive, would have indicated damage to the central nervous system) was equivocal. The fundi were normal, thus indicating that there was no abnormal pressure on the optic nerve and thus, according to Dr Fitzgerald, there was no raised intracranial pressure. Rombergism (swaying) was detected. Dr Whiley reported that her incontinence was "not of the stress type but rather involuntary voiding". This finding is an indication of neurological impairment. Dr Whiley's death and the apparent incompleteness of his notes are therefore of particular significance.

[14]

The effect of delay on the determination of the reporting of symptoms and the plaintiff's experience of symptoms at particular times 84It can be seen from the examples given above that the reliability of the plaintiff's various versions of the last consultation with the first defendant and the first consultation with the second defendant and the symptoms of which she was suffering at those, and other, times, is difficult to test by reference to objective facts, surrounding circumstances or business records, apart from the defendants' clinical notes. This difficulty is largely a product of the extent of the delay. The extent to which delay has compromised the prospects of a fair trial has been increased by the circumstance that the plaintiff is, at least in part because of the underlying condition, a poor historian and has only a poor recollection of events. 85I reject the plaintiff's submission that Dr Fitzgerald can reliably opine on the course of the plaintiff's symptoms and signs from their endpoint. The assurance with which he has set out what the plaintiff's symptoms must have been is, in any event, wholly inconsistent with the opinion of Dr Dan, served by the plaintiff's solicitors, who said, in his report of 27 February 1997: "The effect hydrocephalus has on the person afflicted by it, varies considerably. Mild degrees of hydrocephalus may be undiagnosable by symptoms or physical signs. . . . On the other hand, headache is uncommonly due to hydrocephalus or other intracranial mass lesions. The velocity of symptoms is so widely variable that no standard pattern can be defined. In some individuals the extreme changes may be present before the clinical picture is manifest and in others relatively modest radiological changes may be accompanied by marked symptoms." 86The objective findings referred to above are not sufficient, in my view, to overcome the undoubted prejudice to the defendants occasioned by delay. 87There are occasions when a Court must make findings of fact based on incomplete or unreliable evidence on the basis of the applicable onus and standard of proof. However where evidence is incomplete or unreliable by reason of the delay of the plaintiff in bringing the proceedings to a hearing this is, as set out in the authorities referred to above, a significant factor in deciding whether to grant relief such as the defendants seek.

[16]

Summary of reasons on unavailability of evidence 90I am satisfied that there is actual prejudice to the defendants due to the unavailability of evidence or the availability of compromised evidence which has been occasioned by the delay arising from several matters, including the following: (1)The death of several persons who might otherwise have been called as witnesses, including the plaintiff's husband, her mother, the other practitioners in practice with the defendants and Dr Whiley. (2)The loss of the CT scan of the plaintiff's neck taken in 1982 and the films of the ventriculogram taken in September 1982. (3)The different versions given by the plaintiff in pleadings, particulars and affidavits, the reliability of which cannot readily be determined. (4)The circumstance that the defendants and Dr Besser do not have an independent recollection of their consultations with the plaintiff. (5)The apparent inconsistency between the records produced on subpoena by the retirement village in Young (if they are complete), the first defendant's clinical note of 29 September 1981 and the plaintiff's particulars, the resolution of which is made significantly more difficult by the passage of time. (6)The apparent inconsistency between the records produced on subpoena by Dr Whiley which do not record a consultation with the plaintiff after the birth of the plaintiff's youngest child in the 1970's and 17 September 1982 on the one hand and the record of the history taken by second defendant in March 1982 that the plaintiff was then seeing Dr Whiley on the other. (7)The loss of the records of Mr Budd, the psychologist who saw the plaintiff in about June 1982. (8)The destruction by the plaintiff's mother of letters written by the plaintiff to her during the relevant period, the contents of which would, had they been available, at least have constituted a version given by the plaintiff at a time when the symptoms were fresh in her mind and not affected either by hindsight or litigation. (9)The fact that the plaintiff's son was 8 or 9 when the events to which he deposes occurred, 22 in 1995, the time at which he made a statement purporting to set out his recollection and 38 when the statement was served on the defendants. (10) The fact that the plaintiff's daughter Jeanette Pye was about 13 when the events to which she deposes occurred, 27 in 1996 when her statement was made and 42 in 2011 when the statement was served on the defendants. (11)The fact that the first defendant is, through no fault of his own, uninsured and continues to work, at the age of 76 in order to pay his legal costs and because of the spectre of the litigation.

[17]

Reasons in response to the balance of the submissions 91I am not persuaded that I should infer from the absence of evidence that the plaintiff's life would not be improved by receipt of substantial damages or that her care is presently adequate. Nor am I persuaded that the death of the plaintiff's husband means that I should not be as concerned about the effect of an award of damages referable to gratuitous care as had he survived. I have disregarded these matters since I do not consider them to be germane to the questions for determination, including whether the continued prosecution of these proceedings amounts to an abuse of process. 92I accept the plaintiff's submission that the defendants have not established that her case is so hopeless that it could not succeed. There are factual contests, the resolution of which depend, in part, on credit. However, the authorities referred to above do not identify this as the relevant test. Spellson, on which the plaintiff relied, was an application for summary dismissal of a claim brought by a beneficiary of a trust who sought to sue the trustee. The defendant sought summary dismissal on the basis that the beneficiary had consented to the conduct alleged to constitute a breach of trust and that accordingly the trustee had a complete defence to the plaintiff's claim. The Court of Appeal allowed the plaintiff's appeal against summary dismissal on various bases, including that the consent of a beneficiary is only a prima facie defence to alleged breach of trust since the court must consider all the circumstances to determine whether it would be equitable for the beneficiary to sue the trustee. The observations made by Young AJA referred to above must be read in this context. They do not purport to be an exhaustive statement of when proceedings might properly be dismissed as amounting to an abuse of process. 93The plaintiff sought to distinguish the circumstances in Batistatos HC from the instant case. She submitted that Bryson JA, of whose analysis the High Court approved, considered there to be no useful evidence in the plaintiff's favour and nothing of utility that could be put in the balance against the defendants. It may be that the absence of evidence in Batistatos made its continuation a clearer case of abuse of process than the instant one. I do not, however, consider that the presence of some evidence in the plaintiff's favour in the instant case is sufficient to prevent the conclusion being drawn that the proceedings have become an abuse of process. As Gleeson CJ, Gummow, Hayne and Crennan JJ said in Batistatos HC at [65]: "The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process." 94I reject the plaintiff's submission that I should, on the ground that the application for joinder had the potential to confer a benefit on the defendants, disregard the 10-year delay between 2000 and 2010. The 10-year delay can be taken to be the result of a deliberate forensic decision to defer prosecution of the plaintiff's claims against the defendants, in the hope that she would be permitted to join Dr Besser and the CSAHA. Although the plaintiff cannot be said to be "at fault" for such a decision, she is nonetheless responsible for the delay which it occasioned and consequent prejudice to the defendants, both presumptive and actual, and its effect in reducing the prospects of a fair trial. 95I reject the plaintiff's submission that, because the defendants were out of time in 2000 when the matter would otherwise have been heard to cross-claim against Dr Besser or the CSAHS, the defendants' inability to cross-claim against Dr Besser or the CSAHS is not a relevant prejudice. The question whether the proceedings have become an abuse of process must be determined by reference to all the circumstances at the time of the application, including the whole of the delay rather than particular portions of it.

Fletcher v Hamilton-Gibbs & another

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Judgment (22 paragraphs)

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Cases Cited (14)