Love v. Muratore [2002] NSWCA 15

PARTIES : Beverley Ann Love - appellant Orazio Ronald Muratore - respondent JUDGMENT OF : Spigelman CJ at 1, 40, 42; Heydon JA at 41; Hodgson JA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT 2556/99 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

COUNSEL : Mr. R. Pincus for appellant Mr. D. Higgs SC with Mr. A. Ivantsoff for respondent SOLICITORS : S.M. Boyle & Co., Cronulla for appellant Tress Cocks & Maddox, Sydney for respondent CATCHWORDS : CIVIL PRACTICE AND PROCEDURE - Limitation period - Claim in respect of personal injury - Application to extend period - Medical opinion supporting duty - No notice that this contested, no objection, no cross-examination - Refusal on basis that kind of injury unforeseeable - Appeal from that refusal upheld. ND LEGISLATION CITED : Limitation Act 1969, s.18A, s.60C Dow Corning Australia Pty. Ltd. v. Paton, Court of Appeal, 13 March 1998 per Mason P. CASES CITED: Nowlan v. Marson Transport Pty. Ltd. [2001] NSWCA 346 Russo v. Aiello [2001] NSWCA 306 DECISION : 1. The appeal is allowed; 2. The respondent to pay the appellant's cost of the appeal; 3. The costs of the extension application in the District court to be costs in the cause; 4. Pursuant to section 60C of the Limitation Act 1969, that the time for filing the statement of claim in these proceedings be extended to 9 April 1999.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40743/00 DC 2556/99 SPIGELMAN CJ HEYDON JA HODGSON JA

Monday 4th February 2002. LOVE V. MURATORE Judgment 1 SPIGELMAN CJ: I invite Hodgson JA to deliver the first judgment. 2 HODGSON JA: This is an appeal by leave against orders made by Woods DCJ on 18 August 2000 dismissing with costs an application by the appellant for an order under s.60C of the Limitation Act 1969 extending a limitation period for a cause of action. 3 I commence with an outline of the circumstances giving rise to this appeal. 4 Between about June 1995 and March 1996, the appellant attended as a patient for treatment at St. George Sports Injury Centre in respect of a painful right foot. On or about 1 June 1995, the respondent doctor put the appellant's foot in plaster and gave her crutches. The appellant's complaint is that the respondent did not instruct her how to use the crutches, that for about four weeks she used the crutches in such way that the weight of her body was taken through her armpits rather than through her arms, and that as a result she suffered injury. 5 By about 4 June 1995, according to the appellant, she had severe pain in her shoulders and elsewhere after using the crutches. The pain in her shoulders continued until 28 June 1995 when, according to the appellant, her physiotherapist instructed her in the correct use of the crutches. The pain in her shoulders, however, continued until April 1996, when the appellant consulted a Doctor Malouf. 6 In May 1996 the appellant consulted a shoulder specialist, Professor Murrell. Professor Murrell diagnosed a relatively acute onset of bilateral avascular necrosis of the humeral head and recommended bilateral shoulder replacement. The replacement of the right shoulder occurred on 16 July 1996, and replacement of the left shoulder occurred on 22 October 1996. 7 The appellant consulted a solicitor concerning possible court proceedings against the respondent on 14 October 1998. Counsel's advice was obtained and the solicitor set about obtaining medical reports. There was a delay experienced in obtaining a report from Professor Murrell, and on 23 March 1999 the appellant instructed her solicitor to commence proceedings. The statement obtained was filed in the District Court on 9 April 1999. Subsequently a report was obtained from Professor Murrell dated 27 September 1999, giving some support to the appellant's claim. 8 The Notice of Motion to extend the limitation period was filed on 14 April 2000. This was considered necessary, because s.18A of the Limitation Act provides for a three-year time limit for a cause of action founded on negligence or breach of duty for damages for personal injury occurring on or after 1 September 1990. The facts alleged by the appellant tended to suggest that any cause of action was complete by about the middle of June or late June 1995. 9 At the hearing below, the appellant relied on Professor Murrell's report dated 27 September 1999 which was tendered without objection and which expressed the opinion that the injury to the appellant's shoulders was caused by inappropriate use of crutches, and which also expressed the view that a doctor who prescribes crutches "should make arrangements ... for the patient to be instructed regarding their use". However, the report also noted that association between avascular necrosis of the humeral head and crutch use has not been previously reported in the literature. 10 The respondent put on evidence from an expert medical witness to the effect that he had never been aware of an association between incorrect use of crutches and development of avascular necrosis of the humeral head, and that such association was unlikely, and also to the effect that a more probable cause of the problem in this case was the exogenous administration of steroids to the appellant. 11 Also in evidence below were answers to interrogatories given by the respondent, including a statement that he had adjusted the appellant's crutches so that she would take her weight through her wrists rather than through her armpits. 12 The only oral evidence given below was from the appellant who was cross-examined, inter alia, concerning the extent of her use of the crutches. 13 The primary judge refused the application on the sole ground that it had not been shown that the appellant had a real case to advance, a requirement referred to in Dow Corning Australia Pty Limited v Paton, Court of Appeal, 13 March 1998 per Mason P. The primary judge said that he had considered the matters set out in s.60E of the Limitation Act and expressed the view that there would be no prejudice to the respondent in the conduct of a trial, actual or presumed, if the extension was granted. 14 The basis on which the primary judge was not satisfied that the appellant had a real case to advance was that the appellant was, on the material before him, unable to establish foreseeability of the kind of injury which she had suffered and was thus unable to establish that the respondent had a duty of care in relation to it. This was because there was no evidence of previous association between the use of crutches and avascular necrosis of the shoulders. The primary judge expressed the view that Professor Murrell's report should not be read as representing an opinion he held in the past as to a doctor's duty, and that the respondent's evidence that he would have adjusted the crutches so that the appellant would take her weight through the wrists indicated no more than concern for the comfort of the appellant, not concern about the possibility of physical injury. 15 The primary judge was of the view that nothing in the evidence supported the proposition that incorrect use of crutches could cause physical injury, apart possibly from chafing discomfort, and if that was physical injury, it was not of the same kind as avascular necrosis of the humeral head. 16 The grounds of appeal against that decision are as follows: 1.His Honour erred in holding the plaintiff's case was not arguable.

2.His Honour erred in holding that no injury of the kind suffered was foreseeable.

His Honour erred in finding that Professor Murrell's view that the defendant had a duty at the time of the alleged tort was only based on his knowledge of the particular complication, as there was no evidence for that conclusion.

His Honour erred in mistaking the case as one of failure to warn.

His Honour erred in failing to hold that chaffing and avascular necrosis are injuries of the same kind.

His Honour erred in that there was no evidence to support his finding that the reason the defendant claimed to have adjusted one or both crutches could only arise out of concern for comfort, as distinct from a need to avoid injury.

His Honour erred in that there was no evidence to support his finding that the only reason to adjust crutches could be to avoid chaffing or discomfort.

His Honour erred in that he assumed no further medical evidence would be called at trial. 17 An application was also made to the Court brought by the appellant to admit further evidence, this being supported by affidavits from the appellant's solicitor. These affidavits were read without objection on the application to lead further evidence. The primary affidavit included the following: 1. I am the solicitor for the applicant for leave to appeal, and was the solicitor for the plaintiff in the Court below.

At the time of hearing of the extension application, my client relied on medical reports setting out the particular duty owed by the treating doctor and the allegation was that his duty was breached, and the medical evidence was that the breaches led to a serious physical injury.

The defendant had served medical reports and put on a defence denying the breaches, and suggesting the injury was caused not by the breaches, but by an unrelated medical treatment.

The defendant had at no stage raised any issue that the duty arose only from a need to avoid discomfort, rather than a need to avoid a risk of injury, or that the plaintiff could not win because the particular injury was unique, and therefore unforseeable (sic).

The defendant raised these issues for the first time at the hearing.

Since these issues seemed then not to be supported by the medical evidence, nor to be sufficient in law to lead to a refusal of leave, I did not seek or obtain instructions to apply for an adjournment to put on further evidence.

I have sought further expert reports dealing with the issue whether the duty arose out of the need to avoid physical injury, and if so, what sort of injury. Annexed hereto and marked with the letters "A" and "B" are copies of my requesting letters to Professor Murrell dated 29 and 31 August, respectively.

Annexed hereto and marked with the letters "C" and "D" are copies of his replies dated 16 October 2000 and 14 November 2000, respectively.

I accept that I could have obtained this evidence before the hearing of the application for leave to extend time was heard in the Court below, but for the reasons set out above, it did not seem to me that it would be needed.

I beg leave of the Court to rely on my requesting letters and the reports at the hearing for leave. 18 In an annexure to the affidavit there was material from Professor Murrell expressing the view that improper use of crutches can result in injury, including neuropraxia. A further document from Professor Murrell explained the nature of neuropraxia as follows: Further to your letter of 9 November 2000, a neuropraxia that sometimes occurs following crutch palsy is compression to the brachial plexus and associated nerves that run from the neck down the arm. They are compressed at the axillae. I hypothesized that the crutches placed pressure through the axillary and compressed the vessels that come off the axillary artery and supply the humeral head. This led to significant reduction of blood supply to the humeral head and a vessel necrosis.

Advice should be given regarding the use of crutches so that the relevant part of the body can be loaded so that the patient does not injure themselves. Discomfort, chaffing and neuropraxia would be the most common ways of becoming injured following crutch use. As you have pointed out there is some literature that suggests an arterial aneurysm might occur also following crutch use.

I hope this is of some assistance. 19 The additional affidavit annexed a report from a physiotherapist which contained the following material concerning warnings about the use of crutches: Warnings are given to stop the patient from leaning through their axillas both when they are walking and standing still with crutches, again, owing to the potential occlusion of nerves and arteries in the axilla. The weight-bearing function of the crutches is through the hands and the upper part of the crutch is for stability. 20 As noted earlier, the statement in Professor Murrell's report that a doctor who prescribes crutches should make arrangements for the patient to be instructed regarding their use was admitted without objection, and indeed without any application made under s.136 of the Evidence Act that the use of this material be limited in any way. In the context of the report as a whole, it is my opinion that an inference was plainly open that this statement by Professor Murrell related to the situation at the time the appellant's crutches were prescribed, and did not merely relate to the future, as suggested by the primary judge. 21 In my opinion, the inference was open that the statement was based on concern not merely for the patient's comfort, but also for the patient's health because of risk of physical injury of some kind, and also that such injury that could be occasioned was of the same general kind as that suffered by the appellant. The last proposition has some support from the case of Youkhana v Western Sydney Area Health Service, Court of Appeal, 10 October 1995, which confirms that a narrow interpretation should not be given to the kind of injury in this context. 22 The respondent put on its own expert medical evidence which did not touch any of those points but merely confirmed that there had been no previous association of misuse of crutches with the particular injury suffered in this case and expressed the view that another cause was more probable. 23 In those circumstances, in my opinion, if the respondent wished to take the point that Professor Murrell's report did not constitute some evidence of relevant duty, some evidence of foreseeability of some physical injury, and some evidence that such foreseeable injury was sufficiently of the same type as the injury suffered by the appellant, the respondent should have at least taken some objection to the report, and particularly the passage that I have indicated, or else sought some limitation of it under s.136 or perhaps cross-examined Professor Murrell. Since these things were not done, in my opinion the primary judge should not have read Professor Murrell's report in a narrow way against the appellant and should, in my opinion, have found it provided sufficient evidence of an arguable case of a duty of care for the purposes of this application. 24 Mr Higgs SC for the respondent submitted that, even if the material from Professor Murrell provided sufficient evidence of duty of care, nevertheless the appellant had not made out a case that the injury she suffered was of a foreseeable kind, so that her case was deficient in that the damages she was claiming were too remote. He submitted that, even if an inference could possibly have been drawn from the material that the injury suffered by the appellant was sufficiently of the same kind as a foreseeable injury, it was well within the scope of the primary judge's authority to not draw that inference. 25 In my opinion, the state of the evidence being as I have indicated, even assuming that it is not necessarily sufficient that the foreseeable injury be physical injury of some kind or another, the material was such as to make it quite inappropriate for the primary judge to find against the appellant on the question of foreseeability in an application of this kind. A finding that the appellant's injury was different in kind from a foreseeable injury would require at least a very careful investigation of the nature both of the appellant's injury and the foreseeable injury, an exercise which, in my opinion, would be inappropriate in an application of this kind. 26 As regards the application to lead further evidence, because of the views I have expressed it is not necessary for me to rule finally on that application. However, I would express the view that, if I had considered the additional evidence necessary, I would have permitted the evidence to be led. This was a case where prior to the hearing below there had been no notification either through the service of medical or other evidence or in any other way that the particular point on which the respondent succeeded below was to be taken. 27 Mr Higgs submitted that two of the requirements for the admission of fresh evidence were not satisfied. He submitted that it was not shown that the evidence could not have been obtained for the hearing below with reasonable diligence and it was not shown that the evidence was such that there was a high probability of a different result. 28 In my opinion, the question of whether evidence could have been obtained with reasonable diligence is a question that has to be considered in the light of the issues that a party would reasonably expect to be contested at the hearing in question. In my opinion, in the circumstances which I have outlined, it would not reasonably have been expected by the appellant that this particular issue would have been contested in such a way as to require additional evidence. 29 As regards the second point taken by Mr Higgs, this has to be considered on the assumption that, contrary to the view I have expressed, the existing evidence was not sufficient. Mr Higgs submitted that the fresh evidence showed only the foreseeability of a temporary injury due to the crushing of a nerve, which was vastly different from the skeletal injury actually suffered by the appellant. 30 Again, consistent with what I said before, at the stage of such an application as this, the foreseeability of physical injury of the type indicated in the additional evidence is enough to make out an arguable case. A submission that such an injury is not of the same kind as the injury suffered by the appellant is a matter that would require a detailed consideration of the facts which would not be appropriate at the stage of this kind of application. 31 The importance of an application of this kind being contested with both parties understanding the issues was discussed in Nowlan v Marson Transport Pty Limited (2001) NSWCA 346, and somewhat similar views were expressed by me in an earlier dissenting judgment in Russo v Aiello (2001) NSWCA 306. 32 In my opinion, this would have been a case in which, if necessary, leave should be given to the introduction of additional evidence. 33 I should say that the views I have expressed do not mean that the appellant is likely to succeed at the hearing. Even if the appellant is successful on a factual dispute such as what, if any, advice was actually given, at the final hearing there may well be very real questions both as to foreseeability and causation. However, in my opinion, the appellant did show a sufficiently arguable case to justify the grant of an extension of time. 34 As I understand it, it is conceded by the respondent that if this Court takes that view, then the other elements justifying an extension of time are satisfied and an extension of time should be granted. 35 In my opinion, the appeal should be allowed with costs and an appropriate extension of time granted. 36 I note that in the Notice of Appeal an order is sought that the costs of the extension application in the District Court are to be costs in the cause, and I would propose that that be granted also. 37 Mr Higgs has reminded me that, in the course of submissions, he submitted that any leave that a Court may grant should be limited to the particulars under (i) in paragraph 6 of the appellant's statement of claim; that is, alleging negligence in failure to instruct in proper use of crutches. The other particulars concern failure to warn, and Mr Higgs submitted that on no basis had the appellant made out an arguable case on failure to warn. 38 That submission was initially made in response to a submission by Mr Pincus, for the appellant, that this was not a failure to warn case so much as a negligent treatment case, part of the treatment being giving of proper instruction as to the use of crutches. 39 The reasons on the basis of which I consider the appeal should be upheld do not depend in any way on that distinction. The appellant's case is certainly not that, had she been warned of the possible consequences of the use of crutches, she would not have undertaken the use of crutches at all. The failure to warn alleged in the statement of claim is really put as part of the failure to instruct. I see no reason why the particulars alleging failure to warn should be excluded from the statement of claim. 40 SPIGELMAN CJ: I agree. 41 HEYDON JA: I agree. 42 SPIGELMAN CJ: The orders of the Court are: 1. The appeal is allowed. 2. The respondent to pay the appellant's cost of the appeal. 3. The costs of the extension application in the District court to be costs in the cause. 4. Pursuant to section 60C of the Limitation Act 1969, that the time for filing the statement of claim in these proceedings be extended to 9 April 1999. **********

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