BETWEEN : JUSTIN ROBERT HOLLAND by his next friend ROBERTA ASHWORTH HOLLAND

Pleadings - Amendment of statement of claim - New particulars of negligence - Prejudice to defendant - Delay - Need to join third party previously dismissed from proceedings as first defendant - Trial dates fixed - Turns on own facts.

Limitation Act 1935

Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213

Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514

Australian Energy Commission (WA) v Alcoa of Australia Ltd (1996) 17 WAR 131

Australian National Airlines Commission v Newman [1987] HCA 9; (1987) 162 CLR 466

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996-97) 186 CLR 541

Collinge v Heywood [1839] EngR 404; (1939) 9 Ad & E 634; 112 ER 1352

Commercial Bank of Australia Ltd v Colonial Finance Mortgage Investment and Guarantee Corporation Ltd (1906) 4 CLR 47

Doonan v Beacham [1953] HCA 38; (1953) 87 CLR 346

G L Baker Ltd v Medway Building and Supplies Ltd [1953] 1 WLR 1216

George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169

James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 73 ALJR 232

Karsales (Harrow) Ltd v Wallis [1956] EWCA Civ 4; [1956] 1 WLR 936

Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Smith v Australian National Line Ltd (1998) 20 WAR 219

Walker v Bowry [1924] HCA 28; (1924) 35 CLR 48

1 NISBET DCJ: The plaintiff applies by summons dated 9 September 1999 for leave to further re-amend his statement of claim in accordance with a minute appended to the summons. For the most part the proposed further amendments are unremarkable and may be appropriately categorised as being a general tidying up of the statement of claim and a pleading of the precise duties of care which the plaintiff alleges the defendant to have breached. These are uncontroversial and unopposed by the defendant.

2 What is opposed by the defendant is the plaintiff's proposal to amend his statement of claim by the addition of further particulars of negligence. These are comprised in proposed new paragraphs 11C(h)-(t) inclusive. Of these proposed particulars, 11C(h)-(k) (inclusive) are particulars which go to the defendant's management of the birth. Particulars 11C(l)(m)(n)(r)(s) and (t) however all relate to steps the plaintiff says should have been taken in respect of his resuscitation following his birth. Those particulars are as follows:

"(l) failed, adequately or at all, to ensure that the Plaintiff's respiratory difficulties at the time of birth were dealt with swiftly and accurately by the administration of oxygen with intubation and other resuscitative measures, including assisted ventilation;

(m) failed, adequately or at all, to arrange for an experienced paediatrician or neonatologist to be present at the birth of the Plaintiff for the purpose of resuscitating the Plaintiff following his birth;

(n) failed to ensure that there was no delay in dealing with the resuscitative difficulties suffered by the Plaintiff following his birth;

(r) failed to call, immediately or at all, for the neonatal resuscitation team to attend the labour ward to deal with the resuscitative difficulties suffered by the Plaintiff following his birth;

(s) departed from 1977 accepted good practice by failing to arrange for a paediatrician to be present at the delivery of the Plaintiff and to care for the Plaintiff after his high risk birth;

(t) departed from 1977 accepted good practice by failing to call for assistance from neonatal paediatrician or the neonatal paediatric service at the hospital when the Plaintiff did not breath (sic) readily after birth."

3 As can be seen, these particulars raise as an issue the defendant's conduct vis a vis the plaintiff after his delivery whereas previously the entire focus of the action was on the defendant's conduct during the course of the pregnancy of the plaintiff's mother and immediately preceding his delivery.

4 The defendant submits that if these proposed amendments are permitted to go forward he will be significantly disadvantaged in that:

1. Medical responsibility for the plaintiff's after delivery care rests with the hospital in which he was born, namely the King Edward Memorial Hospital for Women.

2. He advised the hospital of the need for the plaintiff to be attended after birth by a neonatal paediatrician.

3. Following the plaintiff's birth, his concerns were with the plaintiff's mother, the hospital's midwives taking care of the plaintiff.

4. If he is correct in this and, in the event that the plaintiff is able to prove that any part of his damage was sustained in consequence of his after delivery care, then he, the defendant, will have a right to claim contribution or indemnity from the hospital.

5. The hospital was formerly a party to these proceedings but was discharged by order of Kennedy DCJ by a judgment given 9 August 1995 in which she found that the hospital, then named as first defendant in the proceedings, had the protection of ss40 and 47A of the Limitation Act 1935.

6. In the statement of claim as it stood against the first defendant there was, arguably, only a slight reference to the plaintiff's after birth care by the hospital.

7. The consequence of this is, as prudence would dictate, the defendant would seek leave to issue third party proceedings against the hospital claiming contribution and indemnity.

8. In turn, such leave being given, the hospital would undoubtedly want to be heard on the issue of the plaintiff's after delivery care and would in all probability want to cross-examine the plaintiff's witnesses in the plaintiff's case in this regard (acknowledging that the third party proceedings would be separate and distinct from the plaintiff's claim against the defendant).

9. This would create insuperable problems such that it was highly unlikely that the trial could then proceed on the dates already fixed, namely Tuesday 18 January to Friday 4 February 2000 (both dates inclusive). This would exacerbate the prejudice occasioned by the plaintiff's delay in these proceedings already commented upon in my reasons in [1999]WADC 5.

10. Finally, the defendant points to the plaintiff's delay generally and in effect argues that there must come a time when that delay can be seen as being oppressive to a defendant who has done nothing wrong in the conduct of the litigation to date, such that any further step which would occasion further delay to the defendant should not be taken.

5 For the reasons which I expressed previously when refusing the defendant's application to dismiss the plaintiff's claim for want of prosecution, namely that where a plaintiff is still within time and may commence proceedings anew if struck out for want of prosecution, there is little to be gained by striking out an action for want of prosecution, refusing an application for leave to amend even if it adds an entirely new particular of negligence (as I find is the case here) would be likewise of little point.

6 I find that these proposed new particulars do raise an entirely new issue of negligence because, notwithstanding the plaintiff's submissions to the contrary, there was nothing in the statement of claim which would alert the defendant other than in a very general way to the fact that he was at risk in respect of his conduct in failing to attend to the plaintiff's needs immediately after his delivery. I think it is not to the point to say as the plaintiff does here that the defendant and his advisers would not have confined their investigations and deliberations to the moment of the plaintiff's delivery but would have investigated and deliberated upon all of the circumstances surrounding the pregnancy, the birth and its aftermath. Of course they would have. The real point is, as I find, that the defendant was not at risk in respect of the matters which pertain to the plaintiff's care immediately after his birth in the pleadings as they have stood to date. Investigations and deliberations upon these matters would have had an entirely different focus than they would assume if these amendments are permitted to go ahead.

7 Nevertheless the fact that a fresh action could be commenced by the plaintiff even today incorporating these fresh particulars of negligence weighs heavily against the defendant's arguments in relation to the general type of prejudice occasioned by the delay in the proceedings to date.

8 Of more concern are the defendant's arguments in relation to the loss of a prospective right of joinder of the hospital as a third party in order to claim from it a contribution or alternatively an indemnity and, if that problem can be overcome, the delay that would thereby be occasioned in respect of the future conduct of these proceedings.

9 The first point can, I think, be shortly dealt with. As counsel for the defendant quite properly conceded during the course of argument before me on this matter, the defendant's cause of action for an indemnity or contribution would not be perfected until there was a judgment against him finding him liable in damages for his negligent treatment of the plaintiff either before or after his birth: Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514 and, in the special case of an action for contribution or an indemnity under s7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act (1947): Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213.

10 Put another way, the problem the plaintiff faced with s47A of the Limitation Act 1935 in this action when his action against the hospital was struck out was because his cause of action accrued the moment he suffered damage in consequence of the defendant's negligence whereas the defendant's right to contribution or indemnity from the hospital will only accrue (if at all) from the time any liability attaches to him (if at all).

11 It is also fair to say that courts may look more carefully at the application of s47A of the Limitation Act 1935 since the decision of the Full Court in Smith v Australian National Line Ltd (1998) 20 WAR 219.

12 This then brings me to the second point. Whilst it is true that the defendant's right to contribution or indemnity is a matter separate and distinct from the issues to be dealt with in this action and that they would and could constitute a separate cause of action, they would involve to a significant degree an examination of some of the same evidence to be led in the plaintiff's case against the defendant. And true it is that in terms of pecuniary disadvantage the only prejudice to the defendant of third party proceedings being delayed past judgment in this action is that his insurer may have to meet the judgment before it can recover by way of contribution or indemnity from the hospital. But that isn't the only prejudice to this defendant. I stress that so far I can find no fault with his conduct of this litigation and I don't think it lies in the mouth of a plaintiff who has been bordering on the contumelious with his delay to downplay the potential for prejudice to the defendant in further delay. Why should this action stand over his head any longer than it absolutely must? He is as much entitled to a verdict from the court, whatever it may be, as the plaintiff. Additionally there is the potential for inconsistent verdicts if the third party proceedings don't proceed at the same rime as the trial of this action and, judgment against him without the issue of contribution and indemnity having been determined might very well affect his insurance as to both cover and premium.

13 Balancing these various factors out, I find that reluctantly I must allow these proposed amendments, and I direct that the minute dated 9 September 1999 stand as the Further Re-Amended Statement of Claim and dispense with the necessity for re-service.

14 This means the defendant will need leave to serve a Third Party Notice, presumably to the Metropolitan Health Services Board. I grant that leave, dispensing with any further compliance with O19 r2(2). Pursuant to O19 r3 I direct service of the notice within seven days and, in the event the third party enters an appearance, further direct that the defendant take out a summons for third party directions within seven days of service of the appearance, the summons to be returnable before me.

15 I will hear the parties as to costs.