Court of Appeal (WA)|1999-08-20|Before: Malcolm CJ

Hughes v Minister for Health in his capacity as Board of East Pilbara Health Service [1999] WASCA 131 (20 August 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HUGHES -v- MINISTER FOR HEALTH in his capacity as Board of East Pilbara Health Service [1999] WASCA 131

MINISTER FOR HEALTH in his capacity as Board of East Pilbara Health Service

Limitation of actions - Personal injuries - Appeal against refusal to grant extension of time to amend claim to include new causes of action - "Reasonable cause" - Review by new solicitors revealed further potential causes of action - Not speculative, presumptive inference of causation based on facts

Limitation of actions - Onus on defendant to prove prejudice - Mere submission insufficient

Limitation of actions - Discretion to grant leave - Whether facts indicate causal link between failure to take precautions and injuries - Sufficient to show failure increased risk or was one of a number of conditions sufficient to produce damage

Watts v Rake (1960) CLR 158

SGIC v Oakley [1990] ATR 81-003

Chance v Alcoa Australia Ltd [1996] ATR 81-017

The Board of Management of Royal Perth Hospital & Anor v Frost, unreported; FCt SCt of WA; Library No 970069; 26 February 1997

1 MALCOLM CJ: This is an appeal pursuant to leave granted by the Full Court on 10 September 1998 against the orders of her Honour Judge French, in the District Court at Perth on 18 March 1998, by which her Honour ordered that the appellant's application for leave to commence an action pursuant to s 47A of the Limitation Act 1935 be dismissed. The appellant seeks an order that the appeal be allowed and that the appellant have leave to commence an action for damages against the respondent in terms of the minute of proposed amended statement of claim filed in the District Court on 19 December 1997, as amended in the Full Court on 10 September 1998.

2 By an originating summons, filed in the District Court on 19 December 1997, the appellant sought leave to commence an action for damages for negligence and/or breach of statutory duty, in terms of a minute of proposed amended statement of claim dated 26 November 1997, and an order that the minute stand as the statement of claim in an action, which had been joined with the subject action, namely District Court Action No 1721 of 1996.

3 The appellant had previously commenced an action ("the original action") against the respondent by a writ issued on 24 May 1996. It was alleged in the statement of claim subsequently filed and served that the respondent Minister as the Board of Management of the Newman District Hospital was vested with the management, control and administration of the hospital which provided medical specialists and all other medical, surgical and nursing services required for the purposes of the hospital. In or about September 1993 the appellant was admitted to the hospital where he had an operation to repair an umbilical hernia. Subsequently, he was required to undergo three further operations in January, May and November 1994 for the repair of a recurrent umbilical hernia. At the last of these operations it was alleged that a Prolene or Marlex mesh reinforcing was inserted for treatment of a severe infection contracted at the Port Hedland District Hospital. Following the last operation the appellant developed a wound seroma in the lower abdomen. He was admitted to the Newman District Hospital where two drainage tubes were inserted by surgery to drain the fluid build up. The protruding drainage tubes were held in position by means of stitches attached to the outer skin of the abdomen and connected to a fluid suction apparatus.

4 It was alleged that on 20 December 1994 the drainage apparatus was disconnected from the drainage tubes. The stitches holding the tubes in place were removed. The drainage tubes were left protruding from the appellant's abdomen by approximately 20 mm. Two dressings were applied to detect any drainage from the tubes. On 22 December 1994 it was discovered that the left side drainage tube was missing. It was alleged in par 7 of the statement of claim that, notwithstanding this, the plaintiff was discharged from the hospital on 22 December 1994 after the right side drainage tube was removed.

5 It was further alleged in par 8 of the statement of claim that following his discharge the appellant suffered severe central abdominal pain, nausea, vomiting, constipation and fatigue and was incapacitated from working. On 19 January 1995 the appellant was referred to Dr Jayasuriya at Bentley Hospital. It was alleged in par 9 of the statement of claim, that as a result of x-rays and an ultrasound scan, it was shown that:

(a) there was a fluid collection in the subcutaneous tissue approximately 13 mm thick; and

(b) the missing drainage tube was within the anterior abdominal wall.

6 On 6 February 1995 at Port Hedland Hospital, an operation was performed on the appellant to remove the drainage tube.

7 It was alleged in the statement of claim that the symptoms and disabilities described and the need for further surgery to remove the drainage tube were caused by the negligence of the respondent by his servants and agents. The particulars of negligence alleged were that:

(a) failed to secure the left sided drainage tube adequately or at all so that it did not slip back into the interior of the Plaintiff's abdomen

(b) failed to carry out any medical procedures by way of X-ray or ultrasound scan to ascertain whether the missing drainage tube was lodged internally in the Plaintiff before discharging him from the hospital."

9 The appellant claimed damages, saying he continued to suffer from abdominal pain, fatigue and loss of enjoyment of life. He also claimed damages for loss of his earning capacity as a signwriter and painter, saying that he was unemployed at the date of the issue of the writ and suffered from loss of earning capacity. Finally, he claimed medical and travelling expenses as special damages.

10 In his defence to the original action the respondent denied that the appellant was treated for a severe infection in November 1994, but otherwise admitted the various operations, the insertion of the drainage tubes and the fact that the left drainage tube was missing on 21 December 1994. The respondent said that the appellant was discharged from the Mt Newman Hospital on 22 December 1994, but otherwise did not admit the allegations in par 7 of the statement of claim. The respondent did not admit that the appellant suffered the conditions alleged in par 8 of the amended statement of claim, the referral by Dr Jayasuriya to the Bentley Hospital alleged in par 9 of the statement of claim, or the x-ray and ultrasound procedure or the results thereof. The subsequent admission to the Port Hedland Regional Hospital on 6 February 1995, however, was admitted, as was the operation to remove the drainage tube. The respondent denied the alleged or any negligence.

11 On 19 December 1997 the appellant filed a minute of a proposed amended statement of claim by which it was alleged the respondent was vested with the management and control of the Port Hedland Regional Hospital ("PHRH") as well as the Mt Newman District Hospital ("NDH") and engaged medical specialists and practitioners, nurses and other para medical staff at both hospitals. The appellant was at material times admitted to and treated at each hospital as a public patient. The only material advice he received at NDH was from the nursing staff after his hernia operation to the effect that he should "go home and take it easy" and "rest". It was alleged that between his first discharge on 11 September 1993 and 10 January 1994 ("the first relevant period") the appellant's umbilical hernia recurred causing him to suffer injury, loss and damage ("the first material injury"). It was further alleged that on or about 12 January 1994 it was surgically discovered that, as a consequence of the first operation the appellant had developed an infection in his abdomen ("the infection").

12 It was alleged that both the first material injury and the infection were caused by the negligence of the respondent, his servants, agents or employees. There is an alternative plea of breach of the statutory duties owed to the appellant by the respondent under s 5A(1)(b) and s 7(1) of the Hospital and Health Services Act 1927 (WA) ("the HSS Act").

13 It is further alleged in par 5.1.1 of the amended statement of claim that on or about 12 January 1994 the appellant was admitted to the PHRH for surgical treatment of the recurrent abdominal hernia ("the second operation"). This involved the surgical repair of the wound site created by the first operation. The appellant was discharged on 18 January 1994 ("the second discharge").

14 It is alleged in par 5.1.4 that between the second admission and the second discharge staff at the NDH completed an "Infection Control Notification Form" on or about 17 January 1994. The appellant had contracted an infection at the wound site ("the second material injury"). It was further alleged in par 5.2 that the second material injury was caused by the negligence of the respondent, his servants, agents or employees at PHRH. Alternatively, it was pleaded in par 5.3 that the second material injury was caused by a breach of the statutory duties owed by the respondent to the appellant under s 5A(1)(b) and s 7(1) of the HHS Act.

15 It is alleged in par 6.1.1 that after the second discharge on or about 18 January 1994 the appellant returned to his house at Newman. In par 6.1.2 it is alleged that at approximately 2050 hours on 20 January 1994 the appellant presented at the Accident and Emergency Department of NDH with a severe recurrent infection at or around the wound site which had burst discharging pus and haemoserous exudate. He was treated symptomatically as an outpatient and discharged: par 6.1.3. It is alleged in par 6.1.4 that on 21 January 1994 at approximately 1319 hours he was admitted to NDH as an inpatient ("the third admission") upon the request of his general practitioner Dr Wilson for immediate treatment of the infected wound site. He was discharged on 23 January 1994.

16 The amended statement of claim continues the saga by alleging that between his admission on 20 January 1994 and his discharge he remained infected causing him to suffer further injury, loss and/or damage ("the third material injury"). It is alleged that this was caused by the negligence or breach of statutory duty of the respondent, his servants, agents or employees at NDH. Further claims of a similar nature are made in respect of additional material injuries following the appellant's subsequent admissions to NDH, namely:

(a) admission to NDH on or about 19 May 1994 ("the fourth admission") for further repair to the recurrent abdominal hernia ("the fourth material injury") giving rise to the fifth material injury; and

(b) admission to NDH on 23 May 1994 ("the fifth admission") for continuing observation until discharge on 25 May 1994;

(c) admission to NDH on 31 May 1994 ("the sixth admission") for further observation and treatment for severe exacerbation of pain at the wound site ("the fifth material injury").

17 As alleged in par 9.1.1 the appellant was admitted to PHRH on 14 November 1994 ("the seventh admission") for further surgical repair to the recurrent hernia which was complicated, exacerbated or caused by continuing or further wound infection. This was performed on 15 November 1994. The appellant was discharged on 19 November 1994.

18 He was re-admitted to NDH on 21 November 1994 ("the eighth admission") when after attempting to change a tyre on a car he suffered severe pain as a result of ruptured sutures or other damage to muscle or tissue at or around the hernia site ("the sixth material injury"). He was discharged on 25 November 1994 ("the eighth discharge").

19 The appellant was re-admitted to PHRH on 2 December 1994 ("the ninth admission") with a large internal swelling or seroma indicating infection at or around the wound site ("the seventh material injury").

20 After treatment he was discharged into the care of NDH on 4 December 1994 ("the ninth discharge").

21 Between 5 and 14 December 1994 the appellant was treated as an outpatient at NDH when he presented with a range of progressive symptoms and/or complaints. He was admitted to NDH on 15 December 1994 ("the tenth admission"). Unbeknown to the appellant one of two haemovac drains inserted into the left side of his abdomen had disappeared into his abdomen. After his discharge, test results reported between 23 and 27 December 1994 demonstrated that he was infected by two different kinds of staphylococcus. Notwithstanding that he reported the missing haemovac drain to nursing staff at NDH he was discharged on 22 December 1994 ("the tenth discharge").

22 On 19 January 1995 the appellant attended his general practitioner who referred him to Bentley Hospital for an ultrasound scan which revealed the presence of the drain in the appellant's left side. The appellant was re-admitted to PHRH on 6 February 1995 ("the eleventh admission") for surgical removal of the drain. He was prescribed medication for one of the detected staphylococcus but not the other. He was discharged on 15 February 1995 ("the eleventh discharge") without any ongoing treatment or advice regarding the ongoing staphylococcus epidermis infection.

23 Between 6 February 1995 and about 2 April 1996 the appellant alleged that he continued to suffer abdominal pain, hot flushes and nausea caused by the continuing infection ("the ninth material injury"). On 2 April 1996 he was admitted to PHRH ("the twelfth admission") for the removal of the Prolene mesh on 3 April 1996. The following day the appellant was advised that instead of this removal there would be an exploratory operation at the recurrent abdominal hernia site. That operation was performed on the same day. The appellant was discharged from PHRH on 12 April 1996 ("the twelfth discharge"). It was alleged that between 3 and 12 April 1996 the appellant was not treated to combat the underlying infection causing the appellant injury, loss and/or damage ("the tenth material injury"). It was also alleged that during this period the appellant displayed a hypersensitive condition with his blood pressure reaching as high as 170/110. Further, this injury was caused by the negligence or breach of statutory duty of the respondent, his servants and agents. As a consequence the appellant's abdominal hernia and wound site kept recurring or breaking down. As a result the appellant had undergone numerous and/or unnecessary surgical procedures which caused the hypertension after April 1996 ("the eleventh material injury").

24 In respect of each of the material injuries the appellant claims damages for negligence or breach of statutory duty. It follows that by the proposed amended statement of claim the appellant sought to add a further 10 causes of action for damages for negligence or breach of statutory duty on the part of the respondent.

25 The appellant changed his solicitors in or about June 1997. The new solicitors obtained the appellant's file on or about 24 June 1997. A pre-trial conference was adjourned on 1 July 1997 until 4 August 1997. In the meantime, having examined the appellant's file, the new solicitors advised the appellant that the respondent probably had other documents which ought to be inspected. By letter dated 4 August 1997 inspection was sought of all documents relevant to services rendered to the appellant in the period 1993 to date at NDH and PHRH. This letter appears to have been sent by fax prior to the pre-trial conference on 4 August 1997. The request was repeated by faxed letters dated 15 and 27 August 1997. Arrangements were subsequently made for inspection of the documents on 9 September 1997. The documents were inspected on 18 September 1997 and by faxed letter dated 8 October 1997 the respondent's solicitors were requested to provide photocopies of the two files produced for inspection relating to the appellant's treatment at the two hospitals.

26 The minute of the proposed amended statement of claim was forwarded by the appellant's solicitors to the respondent's solicitors under cover of a letter dated 3 November 1997 seeking consent to the orders sought. By letter dated 13 November 1997 the Health Department Litigation Officer sought specification of the basis for the request for the consent sought under s 47A(2) of the Limitation Act and an explanation for the lateness of the application to amend six months after the action was entered for trial and four months after the change of solicitors. Notice was also given that the Boards of the PHRH and the NDH (together with the Marble Bar Nursing Post) had been amalgamated in a single Board known as the "East Pilbara Health Service".

27 By letter dated 26 November 1997 the solicitors for the appellant notified the Health Department that consent should be given because the respondent had suffered no material prejudice; there was reasonable cause for the delay in that the appellant only recently learned of his potential rights; the issue of hospital infections had only recently received public exposure; and the seriousness of the appellant's condition made it just to grant leave. The additional causes of action only came to light after additional discovery and a detailed review of all the relevant events had been undertaken after the change of solicitors. It was also indicated that:

"... the question of causation is based on common sense and experience, prevailing over logic and science."

28 The appellant's solicitors were informed by letter dated 6 December 1997 that there would be no waiver of the requirement of s47A of the Act by the respondent. The originating summons seeking leave was then filed and served on 19 December 1997. The application was dismissed by the learned Judge on 18 March 1998.

29 By notice of motion dated 8 April 1998 the appellant applied for leave to appeal to this Court. Leave was granted by this Court on 10 September 1998 when the appellant was also granted leave to amend and file the statement of claim in the form of a proposed amended statement of claim dated 10 September 1998.

30 At the outset of the hearing of the appeal counsel for the respondent informed the Court that it was accepted that no leave was required in respect of the original cause of action and that the leave was being sought only in respect of the new causes of action as now set out in the proposed amended statement of claim dated 10 September 1998. Consequently, no issue of the kind dealt with in Moore v Inglis (1976) 50 ALR 589 at 591 - 592 per Mason J was raised. It was also conceded that no point was taken regarding the grant of leave to commence fresh causes of action by way of amendment to the statement of claim which would involve an impermissible retrospective grant of leave: cf Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348 at 355 per Anderson J; Baker v Shire of Albany (1994) 14 WAR 46 at 57 per Kennedy J; and Bingham v England (1996) 17 WAR 226 at 239 per Kennedy ACJ; and at 244 per Ipp J.

31 Ground 1 of the grounds of appeal is as follows:

"1.1 Her Honour erred in effectively concluding that in order for a 'mistake' or 'other reasonable cause' to exist, there had to be some or gross oversight or negligence on the part of the Appellant's (Plaintiff's) previous solicitors.

1.2 Her Honour erred in concluding that there was a mere 'difference of opinion' between the Appellant's (Plaintiff's) previous solicitors and his current solicitors, such as was insufficient to constitute a 'mistake' or 'other reasonable cause'.

1.3 Her Honour erred in law in concluding that the question of mistake or other reasonable cause was closely bound to whether the Applicant's (Plaintiff's) cause was speculative."

32 Section 47A(1) of the Limitation Act 1935 ("the Act") provides that:

"Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsections (2) and (3) of this section, no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless -

(a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and

(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued,

and for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) of this subsection may be given and an action may thereafter be brought while the act, neglect or default continues."

33 Section 47A(3) of the Act provides that:

"(a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) of this section has been given to the prospective defendant.

(b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.

(c) Before an application is made under the provisions of paragraph (a) of this subsection, the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least fourteen days before the application is made."

34 It was necessary for the appellant to give notice in respect of the 10 new causes of action before they could be made the subject of the action.

35 It was common cause before the learned District Court Judge that rather than require the appellant to start a separate action, leave could be granted to amend the original statement of claim by amendment rather than require the appellant to start a new and separate action in respect of the additional causes of action. As Her Honour said at 5 in relation to the 10 new causes of action:

"The plaintiff, of course, requires leave pursuant to section 47A subsection (3) of the Limitation Act because he has failed to comply with the requirements of section 1 of that section in relation to notices and the time in which the action was commenced. There is no issue between the parties that pursuant to that legislation the Court has power to grant leave if it finds that the delay was occasioned by mistake or other reasonable cause or that the defendant was not materially prejudiced by the delay. If one of those criteria, which are clearly disjunctive, is satisfied the Court can exercise discretion to grant leave if it considers that it is just to grant leave.

I accept that in considering the exercise of that discretion the matters that would be taken into account by the Court would be any prejudice that the proposed defendant may suffer as a result of the grant of leave, the explanation or reasons for the delay, whether the proposed cause of action is a sound one for the purposes of the exercise of the discretion or is what has been described sometimes as merely speculative and, of course, the effect of the grant of leave on the defendant's right to have the benefit of the limitation period which to a large extent is, of course, tied up with the question of prejudice."

36 The position was that in or about October 1997 there was a change of solicitors when the appellant's present solicitors took over the conduct of the action. When the new solicitors inspected the hospital files, a combination of some previously discovered documents and some newly discovered, the new solicitors decided that there were new causes of action on which the appellant should be entitled to proceed. In this context the learned Judge said at 10-11:

"There is no suggestion that that should be characterised as either mistake or reasonable cause but in the circumstances, for the purpose of an application of this nature, I do not think that is of any significance.

It was also submitted that it is also the case that the defendant has not suffered any material prejudice because it was alerted to at least the nature of the plaintiff's original claim some time earlier and that these causes of action relate out of periods of hospitalisation which were referred to at least in part in the original statement of claim. It was pointed out that the defendant has an evidentiary burden to establish prejudice, although of course it is the plaintiff that bears the ultimate burden.

In terms of the first two disjunctive parts of the relevant legislation, I note the following matters: the discovery was made fairly early on in action 1721 of 1996 and the plaintiff clearly knew certainly of the existence of the periods of infection while he was hospitalised because that is referred to in the original statement of claim. There is nothing in the plaintiff's supporting affidavit in terms of the notes that have been referred to there to support any question of a breach of duty of care arising, at least on the face of those documents, although I realise there are some submissions that inferences could be drawn."

"It, I think, in fact comes down to a situation that there is another solicitor's opinion as opposed to the opinion of the original solicitors and whether that could be classified as either mistake or reasonable cause is a moot point. I would venture to suggest that on the basis of the authorities that could not really be classified as either mistake or reasonable cause, not being a question of sort of an oversight by the solicitors or some negligence on their part, as if [sic is] often the case where there has been a delay or simply overlooking the requirement to commence proceedings within a requisite time or to give the required notice.

This is a question of a difference of opinion on the part of the original solicitors and the new solicitors and there is certainly nothing that leaps from the papers on the material that has been made available to me that suggests there has been any kind of gross oversight or anything of that nature on the part of the original solicitors.

To this extent the question of a determination as to whether the delay has been caused by mistake or some other reasonable cause is closely bound up with a consideration which impacts, of course, on my ultimate discretion in this matter of whether the plaintiff's case appears to be purely speculative. Certainly, after having given the matter consideration, the causes of action that appear in paras 14.1.2, 14.1.3 and 14.1.4, I consider should be characterised as speculative in the absence of any medical evidence or indeed any other evidence to support any causal link between the alleged injuries and the hernia procedures or any post-operative procedures involving the hernia operations or those periods of hospitalisation."

37 Paragraphs 14.1.1, 14.1.2, 14.1.3 and 14.1.4 of the proposed amended statement of claim as filed on 19 December 1997 were as follows:

"14.1.1 By reason of the acts or omissions of the defendant, his servants, agents or employees engaged from time to time at the NDH and/or PHRH for whose acts or omissions the defendant is directly and/or vicariously responsible, such acts or omissions as pleaded in paragraphs 4.1.1 to 13.3 hereinabove, the plaintiff's abdominal hernia and wound site kept recurring or breaking down due to:

(a) the defendant's continuing failure to detect and treat the underlying infective process or processes;

(b) the defendant's continuing failure to advise or adequately advise the plaintiff how to safely perform daily routine activities.

14.1.2 As a result of the failure or failures as pleaded in paragraph 14.1.1(a) and/or 14.1.1(b) above, the plaintiff has undergone numerous and/or unnecessary traumatic surgical procedures resulting in the plaintiff's development of and/or manifestation of a hypertensive condition from after April 1996, the said hypertensive condition being referred to in paragraph 13.1.6 above.

14.1.3 The said hypertensive condition as pleaded in paragraph 14.1.2 above, resulted in the plaintiff developing a brain haemorrhage/aneurism in or about August 1996, of life-threatening dimensions.

14.1.4 By reason of the matters pleaded in paragraph 14.1.1 to paragraph 14.1.3 above, the plaintiff has suffered injury, loss and/or damage ('the eleventh material injury')."

38 Paragraph 14.2 alleges that the eleventh material injury was caused by the negligence of the respondent, its servants and agents at NDH and PHRH between September 1993 and the twelfth discharge. Paragraph 14.3 pleads the alternative case of breach of statutory duty.

39 By the amendment allowed by the Full Court on 10 September 1998 par 14.1.3 as previously amended was deleted. This amendment omitted the allegation that the hypertension resulted in the appellant developing "a brain haemorrhage/aneurism" in or about August 1996. The allegation remained that the negligent omissions in relation to infection prevention, which exposed the appellant to numerous unnecessary and traumatic surgical procedures and significant pain and suffering, all contributed to the development of the hypertension which the appellant had not suffered prior to September 1993. It was contended that the cause of action was not speculative, but within the scope of a "presumptive inference" of a kind referred to by Rich ACJ in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 at 563 where his Honour said:

"I do not see why a court should not begin its investigation, i.e., before hearing any testimony, from the standpoint of the presumptive inference which the sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology."

40 The "presumptive inference" appears to be akin to an initial reaction that this is a case for application of the latin maxim res ipsa loquitur ("the thing speaks for itself"), having regard to the appellant's extraordinary history. In my opinion, while this may not necessarily be a case for the application of the maxim, the sequence of events was such as to give rise to an inference of the presumptive kind contemplated by Rich ACJ: cf Geldenhuys v Ah Lek Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1997 at 6-7 per Ipp J.

41 Essentially, the appellant's case against the respondent is that, although the respondent knew that there is a very high incidence of recurrent hernias through infection, the respondent failed to prescribe appropriate or adequate preventative medication; or undertake simple pathology or microbiological testing timeously or at all. Further, it is contended that had those steps been taken at the time of the original operation, the appellant would not have been exposed to the following admissions to hospital, pain and suffering, all of which contributed to the development of sustained hypertension, from which the appellant had not suffered prior to September 1993.

42 The first question is whether the delay in relation to the additional causes of action now sought to be litigated was occasioned by "mistake or any other reasonable cause" within the meaning of s 47A(3)(b) of the Act. It was submitted on behalf of the appellant that it was sufficient to constitute mistake or other reasonable cause if, following a change of solicitors, further discovery revealed new information and documents which came to light for the first time. In my opinion, the circumstances to which I have referred as detailed in the affidavit in support of the application constitute "reasonable cause". Whether or not they may also constitute "mistake" it is not necessary to decide, although I consider that it was not a mere matter of a difference of opinion between solicitors. The first solicitors may not have been fully instructed regarding all the subsequent matters now sought to be relied upon. As Isaacs and Gavan Duffy JJ held in Murray v Baxter [1914] HCA 78; (1914) 18 CLR 622 at 629, once a mistake of fact or of mixed law and fact is established no question of reasonableness arises. It is only where a mistake to which the failure is attributable cannot be shown that "reasonable cause" needs to be shown. In this case the additional information was obtained on full discovery of the respondent's records relating to the complete history of the appellant's hospitalisation and treatment.

43 The question whether there was "reasonable cause" is to be determined by what Sholl J described in Quinlivan v Portland Harbour Trust [1963] VicRp 5; [1963] VR 25 at 28:

"... means to refer to a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."

44 See also Stevens v Motor Vehicle Insurance Trust [1978] WAR 232. It is apparent from the materials that the appellant was reliant upon his solicitor's advice in relation to any cause of action he might or might not have.

45 In his affidavit in support of his application the appellant said that he retained his present solicitors in or about June 1997. They obtained his file from his previous solicitors on or about 24 June 1997. Upon examining the entire file his new solicitor advised him that there would probably be other documents held by the respondent which ought properly to be inspected. The inspection ultimately took place on 18 September 1997 following which copies of the relevant files were supplied by the Crown Solicitor's Office to the appellant's solicitors on or about 9 October 1997. The appellant's solicitor then commenced preparing the minute of the proposed amendment to the statement of claim. On or about 27 October 1997 the appellant attended at his solicitors to discuss with detail matters arising out of the minute. The appellant says he carefully went through the documents from the PHRH and the NDH himself, having taken them home from his solicitor's office. It was shortly after this that the appellant's solicitors took up the question of the additional claims with the Crown Solicitor and the Health Department. In my opinion, it is not necessary to establish some kind of "an oversight by the [original] solicitors or some negligence on their part" to constitute reasonable cause. The mere fact that upon there being a complete review of the respondent's files a number of other potential causes of action were discovered is sufficient, in my opinion, to constitute "reasonable cause". It is not necessary to identify any kind of "gross oversight". Her Honour seems to be of the view that a difference of opinion between solicitors with the first not identifying a cause of action, but the latter identifying a cause of action was insufficient to constitute reasonable cause. In this respect, the rejection of the existence of reasonable cause seems to have been closely related to her Honour's characterisation of the additional causes of action and, in particular, those pleaded in pars 14.1.2, 14.1.3 and 14.1.4 as speculative. The amendment allowed by the Full Court deleted par 14.1.3. For the reasons I have already mentioned, there is at least a presumptive inference of causation in relation to the other matters as a result of the extraordinary history and concatenation of events pleaded in the statement of claim and the medical advice received by the appellant from other sources regarding preventative measures. In my opinion, the proposed additional causes of action could not be regarded as "speculative". For these reasons ground 1 is made out.

"Having found that the Respondent (Defendant) bore an evidentiary burden to adduce evidence of prejudice, her Honour erred in accepting the Respondent's (Defendant's) mere submission that it will have suffered 'obvious and logical prejudice as a result of the effluxion of time' in the absence of any, or any credible evidence. Her Honour ought to have concluded in the circumstances, that the Respondent (Defendant) was not in fact materially prejudiced."

47 In view of the conclusion which I have reached in relation to the existence of reasonable cause, it is not strictly necessary to consider the issue of material prejudice, although material prejudice to the defence would be relevant to the question whether it is "just" to grant leave to add the additional causes of action: cf Bingham v England (1996) 17 WAR 226 per Kennedy J at 232 (with whom Ipp J agreed). In Baker v Shire of Albany (1994) 14 WAR 46 at 56 Kennedy J (with whom Malcolm CJ and Pidgeon J agreed) confirmed that in such a case as this, a prospective defendant carries an initial evidentiary onus, but the ultimate onus of displacing material prejudice rests upon the prospective plaintiff: see Perkins v Abel [1962] WAR 80 at 83; Stevens v Motor Vehicle Insurance Trust, above, at 235; and Hall v Motor Vehicle Insurance Trust [1984] WAR 111 at 113.

48 In the present case the respondent did not file any affidavit alleging prejudice. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, albeit in relation to a differently worded provision in s 31(2) of the Limitation of Actions Act 1974 (Qld) Dawson, Toohey, McHugh and Gummow JJ held that an applicant for an extension of time did not have a presumptive right to an order once the pre-conditions in the section had been satisfied. Their Honours held that an applicant still bears the legal onus of showing that the justice of the case requires a discretion to be exercised favourably, and to do so must prove that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant. It would appear that all the relevant hospital notes and documentation upon which the proposed causes of action were framed remained in existence and were in the possession of the respondent. All the treatment received by the appellant was provided by the respondent. In these circumstances, I am of the opinion that the appellant has discharged the ultimate onus in this case.

49 It was submitted on behalf of the respondent that the delay had caused material prejudice for two reasons. First, it was said that the respondent had lost the opportunity of obtaining complete statements from witnesses involved in the care of the appellant at a time proximate to the times at which it was alleged that the respondent was negligent. There was no evidence in support of this submission and I do not consider that it could have been sustained in any event. The respondent was aware of the existence of claims against it prior to the application for amendment to add further causes. These further causes have not been shown by the respondent to involve witnesses or issues materially different from those of the original claim of which they did have notice. Secondly, it was submitted that the absence of any medical evidence before the Court dealing with the question of the causal link, if any, between the conduct of the respondent and the alleged hypertensive condition itself indicated that the respondent had lost the opportunity to have the appellant medically examined in relation to that issue, both in relation to liability and quantum, at a time which was proximate to those alleged symptoms. There was no evidence in support of this proposition. In my opinion, neither of these submissions could be accepted without evidence to support them. They are not self-evident submissions. So far as the hypertension is concerned, the appellant's claim is that this was displayed in the period between 3 and 12 April 1996 and thereafter. It was some 17 months later that the allegation regarding the development of hypertension was brought to the notice of the respondent's solicitors under cover of a letter dated 3 November 1997.

50 So far as material prejudice is concerned, the learned Judge, having found that the delay was not due to mistake or reasonable cause, went on to say:

"I am also not satisfied the defendant has not been materially prejudiced. As I mentioned earlier, the defendant does have an obligation to satisfy an evidentiary onus but I accept the defendant's submissions that he does not have to adduce affidavit material in order to satisfy that.

I accept the defendant's submissions that the fact that there was the previous litigation commenced in 1996 does not suggest that the plaintiff [sic defendant] has not suffered what is an obvious and logical prejudice as a result of the effluxion of time. The matters referred to in the original statement of claim are a particular finite difficulty, namely the leaving of the drainage tube in the anterior abdominal wall and there is nothing in the facts relating to that in the statement of claim that would necessarily put the defendant on notice that matters of a far more wide-ranging nature needed to be canvassed at that stage.

It is also, of course, the case that the difficulty I have mentioned earlier in the absence of a causal link, both from the medical point of view and also from the logical point of view, I consider would be a significant factor in assessing the question of prejudice to the defendant. As was pointed out by the defendant, because of the effluxion of time the defendant is no longer in any position to be able to obtain any medical review of any possible causal connection between the periods of abdominal surgery through the hernia procedures and the onset of hypertension or, of course, the question of the aneurysm or brain haemorrhage in August 1996."

51 I have previously dealt with the question of causation. The issue of the aneurism or brain haemorrhage in August 1996 is no longer relevant. So far as the onset of hypertension is concerned, I am quite unable to accept, without evidence to support it, an assertion that by reason of the effluxion of time between April 1996 and November 1997 the respondent was no longer in any position to be able to obtain any medical review of any possible causal connection between the various surgical operations relating to the hernia undergone by the appellant and the onset of hypertension. The temporal connection was noted in the medical evidence supplied by the appellant and was sufficient to give rise to the "presumptive inference" of causation to which I have already referred.

Ground 3: Exercise of the discretion to grant leave

"Having correctly stated that it was not for the Appellant (Plaintiff) to demonstrate a 'prima facie case', her Honour erred in exercising her discretion in deciding whether it was 'just' in all the circumstances to grant leave:

(a) her Honour correctly concluded that Dr Sheiner's reports indicated a causal link between the Appellant's (Plaintiff's) recurrent hernia and the repeated infections ('the relevant finding'). Having made that conclusion, her Honour ought to have decided that the relevant proposed causes of action were not merely speculative;

(b) whether or not the process of discovery in action no. 1721 of 1996 had occurred early in that action was an irrelevant consideration;

(d) her Honour erred in considering the Respondent's (Defendant's) 'Eshelby' point as being 'a significant factor' in exercising the discretion, and in the process took an irrelevant consideration into account;

(e) the Appellant (Plaintiff) averred that he had not suffered from hypertension prior to April 1996. As a matter of common sense or experience prevailing over logic and science, her Honour ought to have concluded that the numerous traumatic surgical procedures and inpatient hospitalisations between September 1993 and April 1996 as pleaded, were capable of causing the Appellant (Plaintiff) to develop or manifest hypertension for the first time."

53 Ground 3.1(d) concerning the "Eshelby" point based on Eshelby v Federated European Bank Ltd [1932] 1 KB 254 falls away as it was related to the allegation concerning the aneurism or brain haemorrhage now abandoned by the appellant.

54 As to ground 3.1(a), Dr Sheiner noted in his report dated 29 February 1996 that "far and away the most common cause" of failed hernia operations is infection. Laboratory reports before and during the appellant's last operation suggested that staphylococcal aureus [AB53] was present, although it could not be found by Dr Sheiner when he examined him in March 1995. Dr Sheiner indicated that negligence would be difficult to prove in relation to the infection. However, he clearly regarded the fact that a drain was missing meant that the hospital had much to explain as to why it was assumed that the drain was discarded with the dressings, when in fact it had slipped back into the appellant's abdomen. Depending upon the type of drain involved, it may have shown up if a plain x-ray of the abdomen had been taken. However, there was some doubt about the continuing sources of pain in the abdomen. Assuming it was related to the previous surgery, Dr Sheiner suggested that:

"... it would be doubtful to claim that the slipped drain ... would necessarily be the prime cause for the excessive symptoms he now has. I think the symptoms, whatever they are due to, are more related to multiple operations and infection than a specific incidence of a foreign body being there for a period of time."

55 The learned Judge did not conclude that Dr Sheiner's reports indicated a causal link between the appellant's recurrent hernia operations and the repeated infections. Her Honour said:

"There was no suggestion by any of the doctors' reports that have been exhibited to Mr Hughes' affidavit of any connection between his abdominal problems and the hypertension, let alone a connection between his abdominal problems and any conduct by the defendant.

In a letter addressed to the defendant in relation to some negotiations prior to this application the counsel for the plaintiff, Mr Nugawela, talked in terms of the problem of causation as a matter of commonsense and experience prevailing over logic and science, a somewhat unusual suggestion in my opinion, but in any event there seems to be nothing in the material before me of commonsense or experience that would even suggest any possibility of any necessary causal connection.

The other causes of action relating to a complication said to have arisen as a result of the infections leading to recurrent hernia repairs are perhaps slightly less speculative. It does appear that perhaps one of the reasons why there has been such a significant change in direction by the plaintiff in terms of the new causes of action claimed would appear to be the comments in Dr Sheiner's opinions which have been exhibited to Mr Hughes affidavit. He has referred in one case to the possibility of Mr Hughes' continued abdominal difficulties being more likely to be related to the infection and I think possibly also recurrent hernia repairs rather than the existence of the plastic tube in his abdomen for a finite period of time. Once again, however, in Dr Sheiner's reports there is in fact no connection that is alluded to between the infections and the recurrent hernia repairs and the care of the plaintiff by the defendant other than a purely temporal one."

56 It is apparent from the above that the learned Judge read Dr Sheiner's reports as indicating no causal connection between the infections and the recurrent hernia repairs other than a purely temporal one. However, in his report dated 29 February 1996 Dr Sheiner said:

"The reason for failed hernia operations is not always clear but far and away the most common cause is infection."

57 As noted above, Dr Sheiner went on to say that the question of negligence with infection would be very difficult to prove. At the same time, however, this needs to be looked at in the context of the "presumptive inference" point to which I have already referred.

58 Dr Sheiner also said that once infection gets into a hernia repair:

"... there is a very high risk of recurrence. This becomes a compounding problem because the more a hernia recurs with scarring, the weaker the tissues and the greater the difficulty with further repairs."

59 As a matter of common sense, this places a very high premium on the first operation being carried out with due care. It was in that operation that the drain was left in the appellant. Because of the risk of infection Dr Sheiner also expressed the opinion that preventative measures such as the use of prophylactic antibiotics should be used. The appellant said he was not given any or any adequate prophylactic antibiotics. Dr Sheiner concluded that the appellant's symptoms were "more related to multiple operations and infection" than the absorbed plastic tube referred to in the original statement of claim. However, with every recurrent hernia there was an increasing duty of care on the respondent to consider and take positive measures to prevent, detect or deal with the recurrent infections and hernia problems.

60 As to ground 3.1(b), I do not consider that the fact that discovery had occurred at an early stage in the original action was a relevant consideration. Clearly that discovery did not encompass the significant subsequent chain of events now relied upon. Similarly, whether or not the appellant knew of the infections was an irrelevant consideration as contended in ground 3.1(c). There was no suggestion that the appellant had any knowledge which would have enabled him to appreciate the legal significance of the recurring infections.

61 As to ground 3.1(e), the appellant relied upon the "presumptive inference" point based upon the decision in Adelaide Stevedoring Co Ltd v Forst, above.

62 In the present case, it seems to me that it is of considerable significance that in relation to the first of the hernia operations, not only does the appellant say that he was not given prophylactic antibiotics at the time of surgery, but also a drain was left in the appellant's abdomen which was itself a potential cause of the symptoms. Dr Sheiner was prepared to say that the intense abdominal discomfort suffered by the appellant was:

"Presumably ... from the recurrent surgery, infection and scarring that is inevitably present after multiple operations."

He went on to say with reference to the abdominal discomfort:

"Assuming it is related to his previous surgery, it would be doubtful to claim that the slipped drain ... would necessarily be the prime cause for the excessive symptoms he now has. I think the symptoms, whatever they are due to, are more related to multiple operations and infection than a specific incidence of a foreign body being there for a period of time."

63 The exclusion of the drain as the "prime cause for the excessive symptoms he now has" leaves the inference open that it was a cause.

64 In these circumstances, in the absence of evidence showing precisely how the infection occurred, it is certainly possible for the appellant to make a case for an inference that the omission of the provision of antibiotics and/or the failure to remove the drain at the time of the first surgery materially contributed to the onset of infection and the necessity for the repeated hernia operations and the onset of the subsequent hypertension: cf McGhee v National Coal Board [1972] UKHL 7; [1973] 1 WLR 1 at 4-5 per Lord Reid; at 8 per Lord Simon; at 10 per Lord Kilbrandon; and at 11-12 per Lord Salmon. In particular, Lord Salmon said that:

"In the circumstances of the present case it seems to me unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing the injury."

65 As King CJ said in Birkholz v Gilbertson Pty Ltd (1985) 38 SASR 121 at 130, in relation to a situation in which the defendant was under a duty to take reasonable precautions to protect against the risk of injury:

"Has the failure to take those precautions been shown to have caused or materially contributed to the contracting of the disease by the appellant? It might be argued as a matter of strict logic, that the fact that given precautions would substantially diminish the risk, does not prove that failure to take those precautions materially contributed to the appellant's infection unless it can be established how that infection occurred. But the law's view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved. Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and, by omitting those precautions, he substantially increases the risk of the plaintiff contracting that disease, the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precaution has materially contributed to the contracting of the disease. Justice requires such an approach to the problem of causation and it is the approach which was taken by the House of Lords in McGhee v National Coal Board."

66 The issue of causation was considered by this Court in Western Australia v Watson [1990] WAR 248 in which Malcolm CJ, Brinsden and Seaman JJ dealt with the question of causation as follows:

"As Mason J said in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 'mere proof of default followed by injury does not show that the default caused the injury'. Proof that there were precautions which would have prevented the injury is one means of proving causation. In all negligence cases the test of causation is whether the defendant's breach of duty caused or materially contributed to the plaintiff's injury: Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] 1 AC 613. That was an industrial disease case. The approach adopted by the House of Lords in that case has been followed in many other cases, including a number of industrial disease cases such as: Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613; [1957] 1 All ER 776; McGhee v National Coal Board [1972] UKHL 7; [1973] 1 WLR 1; [1972] 3 All ER 1008; Tubemakers of Australia Pty Ltd v Fernandez (1976) 50 ALJR 720 at 724, per Mason J; Bryce v Swan Hunter Group Pty Ltd [1988] 1 All ER 659 and Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] 2 WLR 557; [1988] 1 All ER 871. We note that in McGhee (supra) at 6-7 WLR and 1015 All ER, Lord Wilberforce re-asserted the proposition that once an employee proved a breach of statutory duty and injury, his employer had the burden of proving that the injury was caused by something else, or that the precaution would not have prevented it. This was a minority opinion and was unanimously rejected by the House of Lords in Wilsher (supra).

A contribution is 'material' if it is shown on the evidence not to have been negligible."

67 It was one thing for the appellant to be aware of his infections, but such awareness did not fix him with knowledge of any of the forensic causes and consequences of them, or whether any or any adequate steps were taken to combat or control them or reduce the risk of them occurring. These fell into the category of "intricate facts, unexplained" to him: cf Murray v Baxter, above, at 62 per Isaacs and Gavan Duffy JJ.

68 In this context it is as well to bear in mind the observation of Mason CJ in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 509 that:

"It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because 'questions of cause and consequence are not the same for law as for philosophy and science', as Windeyer J pointed out in National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 at 591. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems in causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mills' definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage: see McLean v Bell (1932) 147 LT 262 at 264; per Lord Wright; Sherman v Nymboida Colleries Pty Ltd [1963] HCA 63; (1963) 109 CLR 580 at 590-591, per Windeyer J."

69 It follows that, with the exception of ground 3.1(d), I would uphold ground 3 of the appeal.

70 In the light of the concession made by counsel for the respondent, it is not necessary to consider ground 4.

71 For these reasons I would allow the appeal, set aside the order of the learned Judge on 18 March 1998 and in lieu thereof order that the appellant have leave to commence an action for damages for negligence against the respondent in terms of the minute of proposed amended statement of claim dated 10 September 1998.

72 PIDGEON J: I agree with the reasons of the Chief Justice.

73 STEYTLER J: I have had the advantage of reading, in draft, the reasons for decision proposed to be published by Malcolm CJ. I agree with them and with his Honour's conclusions. I have nothing to add.

Health Services Act 1927

Hughes v Minister for Health in his capacity as Board of East Pilbara Health Service [1999] WASCA 131

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (141 paragraphs)

Hughes v Minister for Health in his capacity as Board of East Pilbara Health Service [1999] WASCA 131 (20 August 1999)

Parties

Legislation Cited (2)

Cases Cited (12)