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[2011] NSWDC 60
District Court of NSW
2011-05-27
Giles JA, Mr P
Original judgment source is linked above.
Table of Contents Notices of motion [1] - [4] The underlying case [5] Issues [6] Procedural history [7] - [11] Evidence [12] - [13] Credibility of testimony [14] - [18] Facts [19] - [62] Legislation [63] - [65] Consideration of Issue 1 - Whether claim is arguable [66] - [89] Consideration of Issue 2 - Plaintiff's knowledge of the events [90] - [113] Consideration of Issue 3 - The just and reasonable issue [114] - [149] Conclusion [150] Disposition [151] Costs [152] - [157] Orders [158]
Notices of motion 1There are two notices of motion before the court calling for decision. They each involve limitation issues. 2The second motion in time, filed on 24 February 2011 by the plaintiff, Helen O'Hagan, a former patient of the defendant, seeks an order pursuant to s 60G of the Limitation Act 1969, that she be granted an extension of time in which to commence her proceedings against the defendant. 3The first motion in time, filed on 7 February 2011 by the defendant Dr Samuel Sakker, a surgeon, seeks to have the plaintiff's proceedings that were filed against him on 28 September 2010, struck out and dismissed pursuant to r 13.4 and r 14.28 of the Uniform Civil Procedure Rules 2005. 4Each party resists the relief sought by the opposing party. It was agreed that the plaintiff's motion seeking leave to proceed should be determined first. After identifying the basis of the underlying case and the issues calling for decision in these motions I will outline something of the relevant facts and chronology of events before giving consideration to the issues.
The underlying case 5The plaintiff's claim in the underlying case asserts an alleged failure by the defendant to remove what has variously been described as either a surgical sponge or pack from the plaintiff's abdominal cavity at the conclusion of a surgical procedure variously described as a partial or hemi-colectomy or a sigmoid colectomy which the defendant performed upon her on 10 August 1992.
Issues 6The issues to be determined in these motions emerge from a consideration of the chronological facts in the light of the requirements of s 60G and s 60I of the Act . These issues can be conveniently identified as follows: Issue 1 : Whether the plaintiff can demonstrate that she would otherwise have an arguable cause of action to be pursued against the defendant within the meaning of s 60(2) of the Act ; Issue 2 : Whether the plaintiff has satisfied the gateway requirements of s 60I of the Act so as to enable her application to be considered according to factors required by s 60G of the Act ; Issue 3 : Whether it would be just and reasonable for the plaintiff to be granted leave to proceed albeit out of time, having regard to considerations of possible significant prejudice to the defendant in the context of assessing the likelihood of achieving a fair trial on the claimed cause of action: s 60(2) of the Act .
Procedural history 7On 28 September 2010, after having realised that the plaintiff had a potential claim against the defendant for alleged negligence or breach of contract, the plaintiff's solicitor filed the present statement of claim in these proceedings. 8That statement of claim was framed so as to allege breach of contract and a breach of the claimed duty owed by the defendant to remove a surgical pack from the plaintiff's abdomen before the surgical closure and suturing the operative wound upon the completion of the procedure. 9On 3 December 2010, the solicitor for the defendant filed an appearance in these proceedings. On 1 February 2011, a defence was filed. That defence made no relevant admissions, and it denied the substantive matters raised by the plaintiff's claim. For the purposes of the motions it is not necessary to refer to correspondence between solicitors concerning the particulars of the plaintiff's claim. 10Significantly , with regard to the present applications before the court, the defence also stated: "7. In answer to the whole of the Statement of Claim generally, the defendant says that the proceedings against the defendant are not maintainable pursuant to the Limitation Act 1969 (NSW)." 11The events that I have outlined in the preceding paragraphs have led to the present notices of motion before the court.
Evidence 12In support of her motion seeking leave to proceed, in addition to her own affidavits sworn on 24 February 2011 and 13 May 2011, the plaintiff read affidavits from her husband John O'Hagan, sworn on 24 February 2011, and those of her solicitor, Gary Victor Patterson, sworn on 17 February 2011 and 12 May 2011. All of these deponents were cross-examined on their affidavits. 13In support of his motion seeking to dismiss the plaintiff's proceedings, in addition to his own affidavit sworn on 23 February 2011, the defendant read affidavits from his solicitor, Michael Andre Swan, sworn respectively on 9 February 2011, 28 April 2011 and 11 May 2011. There was no cross-examination on the affidavits sworn by the defendant or by Mr Swan. The defendant also tendered as Exhibit "2", a copy of a handwritten page extracted from the post-operative hospital progress notes dated 4 October 2007 concerning the plaintiff's hospitalisation for removal of the surgical pack.
Credibility of testimony 14The defendant made challenges to the credibility of aspects of the plaintiff's testimony. The focal point of the defendant's attack was the credibility of the plaintiff's claim that between 2 October 2007, which was the date on which the surgical pack was surgically removed from her abdomen, and 13 May 2010, which was when her surgeon , Dr Simpson, told her the remnant pack may have been related to the surgery performed by the defendant, and then 2 8 September 2010, which was the date the plaintiff stated that she had acquired mo r e definitive knowledge suggesting that the surgical pack was left inside her at the time of the procedure carried out by the defendant . T he plaintiff had made no prior connection between these events. 15The defendant also challenged the credibility of the plaintiff's evidence to the effect that after the removal of the pack she had been distracted by her various health issues and difficulties in th e period s described in the preceding paragraph . The defendant challenged the proposition advanced through the evidence of the plaintiff that she did not see the need to pursue enquiries concerning precisely when and in what circumstances the pack had been placed inside her abdominal cavity. The defendant suggested such enquiries would have led the plaintiff to acquire knowledge of an entitlement to make a claim at a much earlier point in time. 16Notwithstanding that attack, I do not consider the plaintiff's credibility has been relevantly undermined. In my assessment, it is readily understandable , and not glaringly or inherently improbable , that after the removal of the surgical pack on 2 October 2007, the plaintiff was for a significant period of time distracted and preoccupied by the many health issues that impacted upon her. I have found that as a consequence, she made no enquiries aimed at ascertaining knowledge of facts and events that now base her claim for the relief she seeks. 17In that regard, I have accepted the plaintiff's explanation that a significant factor involved in the delayed acquisition of her knowledge as to which of the multiple surgical procedures she had undergone was likely to be responsible for the surgical pack being left in her abdominal cavity, was the fact that Dr Simpson, the surgeon who had removed that pack, remained unavailable to her for consultation due to his absence from NSW for a significant period of time. I accept that the plaintiff's first reasonable opportunity she had for a discuss ion of the relevant matters with Dr Simpson was when she consulted him by appointment on 2 September 2010. 18There was nothing within the testimony of Mr O'Hagan that raised doubts in my mind as to the credibility of his testimony. He gave his evidence in a careful and straightforward manner. There was nothing in the content of his evidence that led me to doubt the truthfulness of that evidence.
Facts 19The relevant factual background spans a considerable period of years. Unless otherwise stated, my interlocutory findings on the background facts relevant to these motions are as follows. 20The plaintiff was born in 1943. During her working life she has been self-employed as a florist at various locations. She has unfortunately had a long history of adverse health issues and events. 21In the period 1970 to 2010 she has had a total of 23 hospitalisations for procedures and treatments. Of these, 8 have preceded the surgery that was performed by the defendant in 1992, and 15 have post-dated that procedure. 22A number of the surgical procedures undertaken by the plaintiff were of a gynaecological nature, including remedial surgery undertaken to address post-operative adhesions in the abdominal cavity, and which had resulted from those earlier surgical procedures. It is not necessary to set out a full chronology of those events as the details are recounted in a medical report exhibited as "A11" to the affidavit of the solicitor for the plaintiff, sworn on 12 May 2011. Some of the salient details are as follows. 23In the early 1980's the plaintiff had an orthopaedic procedure carried out on her right foot. In the mid-1980's she suffered from viral encephalitis, which required hospitalisation. 24As a consequence of the plaintiff's ongoing experience of abdominal pain, in 1989 and 1990, her treating gynaecologist referred her to the defendant for surgical consultation and advice concerning that pain. In this regard, the plaintiff first consulted the defendant on 18 October 1990. 25On 29 October 1990, following the plaintiff's experience of ongoing abdominal pains, her treating gynaecologist arranged for her to be admitted to a hospital for the purpose of carrying out a full hysterectomy procedure on account of endometriosis which was affecting her at that time. That procedure was performed on 29 October 1990. At that time, intra-operatively, the plaintiff was also diagnosed with an extreme form of diverticulitis of the colon. 26The plaintiff subsequently consulted the defendant concerning the diagnosis of diverticulitis. It was agreed that the defendant would carry out a surgical procedure on the plaintiff for partial removal of her colon, variously described as a hemi-colectomy, partial colectomy or sigmoid colectomy. The procedure was to be carried out after she had sufficiently recovered from the hysterectomy procedure. In the interim, the plaintiff continued to experience abdominal pain. The defendant reviewed the plaintiff again in consultation on four further pre-operative occasions, namely, 27 November 1990, 12 February 1991, 21 April 1992 and 25 May 1992. 27Following those consultations, on 9 August 1992, the defendant admitted the plaintiff to Poplars Private Hospital. On 10 August 1992 the defendant carried out the surgical removal of a significant portion of her colon which had been found to be affected by diverticulitis. The plaintiff understood that about half a metre of bowel was removed on that occasion. Following that procedure, and following treatment for some post-operative complications, the plaintiff was ultimately discharged from that hospital on 22 August 1992. 28Mr O'Hagan had spoken to Dr Sakker on the day that the procedure was performed. He was advised by Dr Sakker that the operation went well, that the diverticular bowel had been removed , and the foreshadowed colostomy bag proved to not to be required. 29The plaintiff had her last post-operative follow-up consultation with the defendant on 12 November 1992, following which she was discharged from his care. I will return to the defendant's evidence on these matters after reviewing the remainder of the plaintiff's history. 30Following the described surgical procedures the plaintiff continued to experience abdominal cramping, fevers and loss of bowel control. In her own mind, and without having reason to think otherwise, she did not relate those problems to the consequences of her abdominal surgery. Instead, she considered that these problems were due to her longstanding underlying abdominal and pelvic problems. 31In 1994 the plaintiff was diagnosed with multiple sclerosis and Ross River fever. In that year she started experiencing facial pain, which was due to trigeminal neuralgia for which she was hospitalised and treated with steroids. In 1998 she was diagnosed with Type 2 diabetes. She remained under medical management for these conditions and has continued to have the described symptoms relating to these conditions, and including significant abdominal pain. 32On 7 June 2003 the plaintiff underwent an abdominal x-ray as part of the pre-operative work-up for a planned colonoscopy procedure. A later examination of that x-ray film revealed the presence of a retained surgical pack in the plaintiff's abdominal cavity. I accept that the plaintiff was not informed of that x-ray finding in 2003 when that x-ray film was originally taken and initially reviewed. 33In July 2003, the plaintiff underwent a colonoscopy procedure. In September 2003, the plaintiff underwent an unsuccessful attempted surgical mesh repair of an abdominal incisional hernia. That procedure failed due to the development of a post-operative Enterococcal infection. 34On 2 February 2005 the plaintiff subsequently underwent an abdominoplasty procedure for the repair of her incisional hernia on her abdominal wall. 35In February 2007, the plaintiff underwent a further colonoscopy procedure as part of the further investigation of her ongoing abdominal symptoms. 36It appears that the presence of the retained surgical pack was not detected on either of these latter two procedures, presumably because there was no opportunity to do so. At this interlocutory stage of the proceedings it is not necessary to reach a definite conclusion on the reasons for this, one way or the other, however, on a commonsense analysis it seems logical to conclude that the colonoscopy would have involved imaging only within the gastrointestinal tract, and similarly, the abdominoplasty for the repair of the incisional hernia would only have involved a repair of the external muscle wall of the abdomen without the need to open the peritoneal cavity. This is consistent with Dr Simpson's indication of the hernia repair being in a different area of the abdomen to where the pack was later found and removed. 37There is no evidence that suggests x-rays were either required, taken or viewed on any of these abdominoplasty procedures. 38On 21 September 2007, the plaintiff suffered a fall whilst she was visiting her parents' premises. This led to her being diagnosed as having sustained a tear to the rotator cuff tendon of her right shoulder. Several days later she was admitted to a hospital suffering from abdominal pain. 39Those events resulted in the plaintiff having an abdominal x-ray which revealed the presence of the intra-abdominal foreign body which is at the focal point of these proceedings. The presence of that object had been ascertained by the x-ray detection of a radio opaque thread, which was ultimately identified as being part of a retained surgical pack. As a result of those events, on 2 October 2007, the plaintiff was provided with medical advice to the effect that she should have a procedure for that foreign body to be surgically removed. She accepted that advice and the pack was removed from her abdominal cavity by Dr Simpson on that same day. 40Whilst the plaintiff was still in hospital recovering from that surgical procedure for the removal of the pack she was informed by Dr Simpson, that the foreign body in question was about the size of a grapefruit. She was informed that it comprised a retained surgical pack that had over time become encapsulated in dense fibrous adhesions within a sac of fluid. Dr Simpson initially advised the plaintiff that in his opinion, that foreign object had been in situ for a considerable period of time. At that time, without further investigation of the surrounding circumstances, Dr Simpson was not in a position to identify the likely occasion on which that pack had been placed in the plaintiff's abdominal cavity. 41These foregoing events led Dr Simpson to undertake some subsequent investigations of his own concerning the previous abdominal x-rays. Those investigations revealed the existence of the x-ray film that had previously been performed on the plaintiff's abdomen on 7 June 2003. In these applications Dr Simpson was not called or required to be called to give evidence as to the detail of his investigations or as to when he had discussed the implications of those investigations with the plaintiff. I accept that the plaintiff had not been previously informed that an earlier and contemporaneous examination of the 7 June 2003 x-ray scan, which had later been found on Dr Simpson's investigations, and which had revealed the presence of the retained surgical pack in question. 42I accept that after Dr Simpson had removed the pack from the plaintiff's abdominal cavity on 2 October 2007 , and after he had seen the plaintiff in the post-operative recovery section at hospital, Dr Simpson was thereafter unavailable for consultation for some considerable period of time due to his absence from the jurisdiction . 43On 7 February 2009 the plaintiff was again seen by Dr Simpson in the context that he performed a repeat colonoscopy procedure up on her on that date. There is no evidence that a formal consultation took place on that date and at which a discussion on the origins of the retained pack took place . Given that it is common knowledge that such a procedure is associated with s edation, for a conclusion that a discussion in consultation also occurred on that date, I consider that evidence would be required to support such a suggestion as it does not naturally arise as an inference . 44The next occasion on which the plaintiff saw Dr Simpson was in March 2010 for a further colonoscopy. F ollowing that procedure, she next saw Dr Simpson in a formal consultation on 13 May 2010. At that time he had a discussion with her in which it was suggested that the re tained surgical pack which he had removed on 2 Octobe r 2007 may have been a remnant of the procedure carried out by the defenda nt on 10 August 1992. 45Following that consultation the plaintiff continued to be bes e t and preoccupied by her various health problems. She next saw Dr Simpson again on 2 September 2010. 46In that c on sultation Dr Simpson disclose d to the plaintiff his opinion that the particular location of the pack indicated to him that it had been placed there at the time of a bowel operation. As the plaintiff had only had one operation performed on her bowel, this must necessarily have brought home to the plaintiff the realisation that the occasion in question was the operation on her bowel performed by the defendant. Dr Simpson associated the surgical pack placement with the previous sigmoid colectomy procedure. He thought it was highly unlikely that over the passage of time, the pack would have translocated from some other place within the abdomen to the position in which it was found when he removed it from her abdominal cavity. Dr Simpson had based t he s e opinions on the sequences of the various types of surgery performed on the plaintiff's abdomen and a review of various imaging films of the plaintiff's abdomen over the years, particularly a barium enema study of the plaintiff's colon on 15 April 1986 which showed no sign of the surgical pack. 47I accept the plaintiff ' s evidence that the first real opportunity that was available to her for a detailed consult ation with Dr Simpson on the implications of the retained surgical pack was at the consultation that occurred on 2 September 2010. That consultation was cumulative to the earlier discussion on 13 May 2010. 48As a consequence of the removal of the surgical pack from the plaintiff's abdomen, the plaintiff has become preoccupied with, and focussed upon, what she considers to have been the deleterious effects upon her health as a result of the pack having been left in her abdominal cavity . She has been preoccupied with psychological problems. She has sought, and has obtained, psychiatric treatment for that preoccupation. Those events led her to seek out legal advice. 49On or about 11 August 2011 the plaintiff retained her solicitors in connection with the present claim. It appears the consultation with Dr Simpson on 2 September 2010 was a s a re sult of legal advice. Th e plaintiff ' s solicitors wrote to Dr Simpson to seek his opinion and any information he might have concerning the circumstances which most likely led to the pack being retained in her abdominal cavity. 50In response to an enquiry by the plaintiff's solicitor, Dr Simpson forwarded to those solicitors a letter dated 20 September 2010. That letter, which set out Dr Simpson's views which I have already summarised, was in turn forwarded to the plaintiff by her solicitor by email, on or about 24 September 2010. 51I consider that the medical evidence tendered in these applications indicates that the retained surgical pack in question had, on the balance of probabilities, been overlooked and left behind following the procedure the defendant performed on the plaintiff on 10 August 1992. I hasten to add that this finding is made on the evidence tendered on these applications and it obviously does not bind a trial judge. 52I am satisfied that prior to the plaintiff opening the email from her solicitor which was dated 24 September 2010, she had not been given formal confirmation of that which Dr Simpson had told her in c onsultation on 2 September 2010 , namely, that the surgical pack in question had been left behind at the time of the surgery carried out by the defendant. I find that the content of the letter from Dr Simpson had for the first time formally provided her with that definitive knowledge. 53It was through those events that the plaintiff then realised there was a relevant connection between her past experience of relevant abdominal complaints, the surgery that had earlier been carried out by the defendant and the retained surgical pack. 54The solicitor for the plaintiff subsequently obtained some reports dated 5 October 2010 and 27 October 2010 from Dr Sikander Khan, a consultant surgeon. In those reports Dr Khan confirmed that " inadvertent retention " of a surgical sponge is a recognised incident that can follow abdominal surgery. 55To complete the historical picture, it is relevant to briefly review some additional history concerning some of the plaintiff's other health problems. The relevance of these matters assumes some importance because of the submissions made on behalf of the plaintiff to the effect that the plaintiff's health problems had significantly preoccupied and distracted her from actively seeking explanations at an earlier point in time as to how and when the pack had been left in her abdominal cavity. 56Between 2000 and 2002 the plaintiff was twice treated with balloon compressions of her 5 th cranial or trigeminal nerve for persistent neuralgia. She has also undergone endoscopic removal of some cartilage tissue in her right knee and she had undergone endoscopic procedures on both wrists for treatment of carpal tunnel syndrome. She had also been treated for folliculitis. S he had been beset with ongoing problems with her right rotator cuff symptoms and acute sinusitis. In this mix, she was also concerned about autoimmune illness and she was significantly affected by psychological problems as well. The impression I gained from the plaintiff was that she was very much preoccupied and distracted by the health problems she identified. I will return to this topic in my consideration of the second issue calling for decision. 57The affidavit evidence of Dr Sakker was not challenged in the hearing of these motions. He was unable to give any evidence of his recollections of his treatment of the plaintiff. He had retired from his practise as a surgeon on 30 June 2007. He last saw the plaintiff in 1992 and has not retained any records relating to his treatment of her. Dr Sakker has undertaken a search of his archives and has found nothing relating to the plaintiff. It appears that in accordance with his described recordkeeping practices at the time, he probably disposed of his records concerning the plaintiff in about 2002. 58The only evidence Dr Sakker could give concerning factual matters was based on his usual practice, and upon his knowledge of the usual operating theatre procedures at the Poplars Private Hospital. In that regard, his evidence was as follows: " Operating Theatre Procedures 12 The operating theatre procedures at the Poplars Private Hospital were very strict and meticulous. An instruments sister, with the assistance of a scout nurse, would conduct a count of all surgical instruments in the operating theatre before the commencement of the surgery. The count would be conducted vocally in the presence of the surgeon. 13 That count would be repeated at the end of the surgical procedure before the patient was closed. The count was often repeated several times. A record was kept by the instruments nurse of the initial and final counts. That record had to be signed by the nurse and by the operating surgeon. 14 It was my unerring practice not to close a patient unless and until I was satisfied that the initial count matched the final count. I never departed from that practice." 59The Poplars Private Hospital had changed ownership in August 1994. The operating theatre at the hospital was decommissioned on 30 June 2004. The hospital ceased trading in April 2007. A search of the archival hospital records by the present owners of the company that previously ran the hospital has failed to locate any reference to a file relating to the plaintiff. 60Shortly before the hearing of these applications Mr O'Hagan had contact with the general practice where the plaintiff's medical records are presently held. In his affidavit sworn on 24 February 2011, at para 27, Mr O'Hagan recounted a conversation he had with an employee of that practice on 22 February 2011. The effect of that conversation was that letters written in 1992 to the plaintiff's general practitioner by Dr Sakker have been located, and were available either with the permission of Dr Sakker, or upon receipt of an authority from the plaintiff, or on subpoena. 61The only affidavit from Dr Sakker read in the applications was that sworn on 23 February 2011. Accordingly, there was no comment from Dr Sakker on any of the contemporaneous material that he had sent to the treating general practitioner in 1992. There is no indication on the evidence that he has been shown his letters that are within the files of the plaintiff's general practitioner. 62The issues calling for decision in these motions must be evaluated against the background facts that I have outlined in the preceding paragraphs. Legislation 63Section 60G of the Limitation Act 1969 relevantly provides: " 60G Ordinary action (including surviving action ) (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 . (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." 64Section 60I of the Limitation Act 1969 relevantly provides: " 60I Matters to be considered by court (1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii). (2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision." 65Section 60L of the Limitation Act 1969 relevantly provides: " 60L Costs Without affecting any discretion that a court has in relation to costs, a court hearing an action brought as a result of an order under Subdivision 2 or 3 may reduce the costs otherwise payable to a successful plaintiff, on account of the expense to which the defendant has been put because the action was commenced outside the original limitation period."
Consideration of Issue 1 - Whether plaintiff has an arguable claim 66In order to assess whether the plaintiff has an arguable claim that would enliven the legislative provisions required for a grant of leave in her favour, it is first necessary for the plaintiff to identify the acts or omissions she relies upon to base her claim: Drayton Coal Pty Ltd v Drain [1995] NSWCA 131, per Gleeson CJ at [3]-[4]; s 60(2) of the Act . 67In this regard, the plaintiff relies upon the factual assertion that the defendant left a surgical pack inside her abdominal cavity when he performed surgery upon her on 10 August 1992. She claims that this event, if proven, constituted a relevant breach of contract, and as such, this was also negligent. The plaintiff has also pleaded a case based on the principle of res ipsa loquitur , which in the context of this case amounts to the formulation that the very fact a surgical pack was left inside her abdominal cavity at the conclusion of the operation in question, itself bespeaks negligence on the part of the defendant. 68The defendant made submissions critical of the plaintiff's reliance on the res ipsa loquitur principle. Those submissions relied upon a decision of the Court of Appeal which rejected the applicability of the res ipsa loquitur principle in a broadly similar case of a retained surgical swab or sponge. In that case, on the evidence there adduced, it was held that the fact that a surgical swab or sponge was left behind in the plaintiff's abdomen after surgery does not necessarily mandate a finding of the fault of the operating surgeon: Elliott v Bickerstaff [1999] NSWCA 453 at [28] ff. 69In the present case, the defendant pointed to the fact that there was no expert opinion tendered on behalf of the plaintiff to support her case, and on the authority of Elliott , it was submitted that a case based on the res ipsa loquitur principle must therefore be untenable. 70In Elliott , it was observed that in a surgical procedure involving the participation of a team, imputing responsibility to the surgeon through an application of the res ipsa loquitur principle was a difficult, if not untenable position, depending upon expert evidence: per Giles JA at [29] - [30]. There, the spectre of divided function and responsibility was raised as between the surgeon and the theatre staff, thus indicating that the surgeon may not necessarily be found liable for the fact that a swab was left behind following surgical closure: per Giles JA at [32]. 71In Elliott , and on the basis of the similar cases there reviewed, it was held in that case, that the plaintiff's reliance on the res ipsa loquitur maxim alone was misplaced insofar as it was sought to attribute personal responsibility to the surgeon as the evidence had to be considered as a whole: per Giles JA at [66] - [67]. 72On the evidence adduced in Elliott , and following the team analogy drawn from the South African case of Van Wyk v Lewis (1924) App D (S Af) 438 and the New Zealand case of Ingram v Fitzgerald (1936) NZLR 905, in the context of the complex workings of a surgical team, at [103] Giles JA stated: "... In the manner in which surgery of the kind undergone by the respondent is performed, the patient receives the attention of a team: the surgeon, the anaesthetist, and theatre staff. There is divided responsibility. The surgeon can be regarded, in the phrase used by the respondent's counsel, as the master of ceremonies, but he is nonetheless a member of a team and reliant on the due discharge of their responsibilities by the other members of the team. He should be able to concentrate on his own skilled task without shouldering the responsibilities of the other members of the team." 73In my view, in the present case, at this stage of the proceedings, the decision in Elliott is of no assistance to the defendant where the evidence on the se application s is not necessarily the complete evidence to be adduced at a trial. These motions do not amount to a final hearing on the merits and all the plaintiff must show at this stage, is that she has an arguable case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. 74It is important to bear in mind, as has been stated in other cases, that an application for an extension of time is not a dress rehearsal for a trial and requires proof only of a serious question to be tried on the cause of action claimed: Gretton v The Commonwealth [2005] NSWSC 437, per McDougall J at [10]-[11] following Commonwealth of Australia v McLean (1997) 41 NSWLR 389. 75At the first level of analysis in an application for an extension of time, on a commonsense view, I consider that it is reasonable to assume, in the absence of expert evidence to the contrary, that a retained surgical pack is not an acceptable consequence of abdominal surgery, thus providing a basis for a finding of breach of duty of care: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538. I also infer this to be so because of Dr Simpson's recommendation for immediate removal of the foreign object once its presence had been ascertained by him. 76In giving full recognition to the force of the decision in Elliott , in my view, that decision cannot be read as being a binding authority for the proposition that the fact of a surgical pack being left inside an abdominal cavity following surgery, does not in any circumstances, including in the particular circumstances of this case, allow a conclusion that the surgeon who performed the operation was negligent. 77In Elliott , there was specific evidence that the surgeon in question delegated the task of accounting for the surgical devices used in the procedure before closure of the surgical incision. At the hearing of these motions, no such specific evidence was called by the defendant. 78In this case, Dr Sakker's input was of a very limited nature owing to a lack of records and an absence of any recollection on his part of the relevant events. This is understandable having regard to the passage of time. That is a matter to which I will return in the consideration of the issue of prejudice, which is bound up in the third issue to be decided in these applications. 79The effect of Dr Sakker's evidence at this stage of the proceedings is that despite not recalling the events of the plaintiff's surgery, he believed that he never departed from his unerring practice of signing off the instrument count at the conclusion of an operation after the count had been made vocally by the scout nurse in the presence of the surgeon. Although Dr Sakker's affidavit does not make it entirely clear, I am prepared to assume in his favour that the reference to instruments includes devices such as a surgical pack. 80The evidence of Dr Sakker which I have summarised has to be viewed alongside the combined evidence of the plaintiff and Dr Simpson to the effect that the surgical pack removed from the plaintiff's abdominal cavity had, on the balance of probabilities, been placed there on the occasion of the one and only operation that had been carried out on the plaintiff's bowel, namely the procedure carried out by Dr Sakker on 10 August 1992. 81If the combined evidence of the plaintiff and Dr Simpson is capable of acceptance at a trial, and at this interlocutory stage I must assume this to be the case, then this evidence has the very real potential of in effect calling into question the correctness of the evidence of Dr Sakker that the " unerring practice " of checking and account of instruments was one from which he " never departed ". 82The two competing propositions are unlikely to both stand to be accepted at a trial. At least one of them has to be assessed as being more probably than not incorrect. Further, general evidence of usual practice in the absence of an affirmative recollection based on records does not, as a matter of necessity, prevail. To use a commonplace analogy, most drivers of motor vehicles would assert that they invariably stop at red traffic control lights, yet common knowledge indicates that the work of red light traffic cameras tells a very different story. 83The salient point that emerges from the foregoing analysis is that I consider the plaintiff to have identified a triable or arguable case: General Steel ; Drayton Coal ; Gretton ; McLean . The strength of the case so identified, and the assessment of the likelihood of such a case prevailing at a trial, involve different considerations based on the totality of the evidence adduced at a trial. Necessarily, I am not required to deal with that question on these motions. 84It must be remembered that each case must necessarily be determined according to the evidence tendered in each case. Although the plaintiff relies upon an allegation of res ipsa loquitur as pleaded, and although a case based solely on such an allegation is, generally speaking, on less firm ground compared to identifiable acts or omissions shown as not adhering to required standards of practice, according to expert evidence, in this case the plaintiff also relies upon an allegation of breach of contract. The implication from the contract being that the defendant would not leave a surgical pack behind in her abdominal cavity at the conclusion of the agreed procedure. 85For the purposes of this application, as already indicated, I consider that it can be reasonably assumed that a retained surgical pack is not an acceptable consequence of abdominal surgery. That proposition is not a stated medical conclusion on standards of practice for which expert evidence is required: Strinic v Singh [2009] NSWCA 15. Rather, it merely represents an ordinary commonsense based lay expectation that must be implicit in the agreement for the surgery in question: Ade laide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 53 . I also base that conclusion upon the inference available to be drawn from the remedial actions taken by Dr Simpson, who acted quickly to remove the object once it had been identified. 86In reaching this conclusion, I have not disregarded the evidence of Dr Khan to the effect that the phenomenon of a retained surgical pack is a recognised incident of abdominal surgery. He identified the incidence of this occurring as being within a variable range of between 1 and 3000 cases and 1 in 15,000 cases. Dr Khan was not asked to provide a discussion on the multivariate analysis which determined the content of that widely divergent range of incidences. Specifically, he did not say that the range he had identified was in any way stratified or filtered to allow for surgical cases where it was considered that there had been an analysed or assumed absence of any relevant breach of duty of care that had either led to or contributed to the instances cited in the literature, and which were included as statistical data. 87To the extent that a complication of the kind under consideration here might be argued to be consistent with an absence of negligence on the part of the treating surgeon, that is a conclusion which requires evidence to discharge the burden of proving such a proposition. The burden of that proof rests with the defendant: s 5O of the Civil Liability Act 2002; Dobler v Halverson and Ors [2007] NSWCA 335; (2007) 70 NSWLR 151, per Giles JA at [61]. 88On this analysis, I reject the defendant's submission that the plaintiff does not have an arguable claim against the defendant. Obviously, an interlocutory conclusion of this kind cannot bind a trial judge when considering the totality of evidence adduced at a trial, however, in my view, on the evidence in these applications, a triable issue has been demonstrated: General Steel ; Drayton's Coal ; Gretton ; McLean . 89The foregoing conclusions therefore calls for a consideration of the matters required to be considered by s 60I and s 60G of the Act .
Consideration of Issue 2 - Plaintiff's knowledge of events 90The question of whether the plaintiff had a constructive knowledge, or the means of acquiring the requisite knowledge, of the nature and extent of her injury, or whether there was a connection between the injury she sustained and the defendant's alleged act or omission, is a relevant matter to be considered, but this question is also dependent upon whether the plaintiff had a relevant recourse to the means of knowledge: Commonwealth of Australia v Smith [2005] NSWCA 478 per Giles JA at [102], following CRA v Martignago (1996) 39 NSWLR 13, per Clarke JA at page 19C and page 22F. 91The plaintiff submitted that when this objective test is applied subjectively, having regard to the facts of this case, the plaintiff should not be held to have had recourse to the means of acquiring the requisite knowledge, such as was the case in Commonwealth of Australia v Nelson [2001] NSWCA 443 at [89]. This is because the plaintiff did not have relevant access to Dr Simpson for the purpose of discussion in consultation in the period between 4 October 2007 and 13 May 2010, and then again until 2 September 2010 , and was therefore unable to take the step of enquiring of Dr Simpson as to the likely timing of the placement of the surgical pack in her abdominal cavity. 92The defendant contests the plaintiff's assertion that between the period 2 October 2007 and the time when the plaintiff consulted Dr Simpson on 2 September 2010, she did not know of a relevant connection between the surgical pack removed on 2 October 2007 and the operation on her bowel performed by the defendant on 10 August 1992. 93The first basis of challenge to the plaintiff's assertion is that Exhibit "2", which comprises an extracted page from the Gosford Hospital progress notes dated 4 October 2007, states: "4/10/07 Simpson/Team
Consideration of Issue 3 - The just and reasonable issue 114In determining whether, in this case, it is just and reasonable to grant leave to the plaintiff, I am required to undertake a balancing exercise in which the prejudice to the plaintiff in being denied an opportunity to prosecute her claim has to be weighed alongside the prejudice likely to be suffered by the defendant as a result of delay in the claim being prosecuted. 115The plaintiff must demonstrate that justice requires an extension of time in which to bring the proceedings: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 per McHugh J at 554. In that exercise, the real or fundamental question is whether delay has made the chances of a fair trial unlikely: Brisbane South Regional Health Authority v Taylor per Toohey and Gummow JJ at page 550. 116Where the plaintiff demonstrates that justice requires a grant of leave, and where it is shown that the defendant will not be able to fairly defend the proceedings, or that there is a significant chance this will be so, actual prejudice of a significant kind arises, and leave should be denied: Brisbane South Regional Health Authority v Taylor per McHugh J at page 555. 117In the evaluation that is required, presumptive prejudice may not necessarily be a disentitling factor for the leave sought: Brisbane South Regional Health Authority v Taylor , per McHugh J at p 555. However, if significant prejudice is shown to have arisen, then justice requires leave should be refused: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 per Sheller JA at [120]. 118In determining whether or not significant prejudice exists I have considered the fact that Dr Sakker's correspondence to the plaintiff's general practitioner, which may include his post-operative report and/or his operation note, is available to be reviewed: Affidavit of Mr O'Hagan, para [27] . There is no evidence tendered in these applications which suggests that the correspondence in question has been reviewed or that it has actually been produced on subpoena. 119Accordingly, I draw no inferences from the absence of any evidence from Dr Sakker concerning the content of anything that might have appeared in his contemporaneous correspondence to the treating general practitioner concerning the plaintiff, and which might have had the possible effect of either refreshing or not refreshing his memory of the events. The evidence comprising Dr Sakker's correspondence dated 21 April 1992, 25 May 1992 and 26 May 1991, and which related to the plaintiff was tendered through the affidavit of her solicitor Mr Patterson which was sworn on 12 May 2011. It is apparent from para [27] of Mr O'Hagan's affidavit sworn on 24 February 2011 that the general practitioner's file has copies of Dr Sakker's 1992 correspondence regarding the plaintiff. What is left unexplained on the evidence is that there is no evidence in these proceedings of a post-operative letter or a copy operation note from Dr Sakker to the general practitioner , as would ordinarily be expected to have been the case. 120The possibilities could be that Dr Sakker's post-operative correspondence has not been accessed from the records of the general practitioner, or that they have been accessed but only selected items of correspondence have been tendered, or that the opportunity foreshadowed by the conversation reported in para [27] of Mr O'Hagan's affidavit has not been taken up by one or more of the parties. I am not in a position to make a finding in respect of which of these possibilities is likely to be more probably than not correct. 121In my view, significant prejudice to the chances of a fair trial does not arise in this case, and I consider that the plaintiff should be granted leave to proceed. My reasons for that view are as follows. 122The fact that Dr Sakker has no recollection of the events, and that he has not retained any of his practice records relating to the plaintiff, from which he might be able to refresh his memory of the events, is not determinative of the issue of whether or not it would be just and reasonable to grant the plaintiff leave to proceed. If such matters were held to be determinative this would involve the adoption of the incorrect criterion of an ideal or a perfect trial, which is not a correct formulation: Holt v Wynter , per Priestley JA at [79]. 123In this regard, on the evidence as it presently stands, the key factual issues for trial would appear to be whether or not a compelling inference is called for to the effect that the retained surgical pack was left in situ in the procedure performed by Dr Sakker, or whether contrary to that contended inference, Dr Sakker's evidence should displace such an inference in favour of a finding that he and the hospital staff had adhered to the usual practice for ensuring that all surgical instruments and devices used were accounted for at the conclusion of that operation, like every other operation that was performed by him at the hospital. 124If the latter proposition was accepted it must follow that it would be highly likely that Dr Sakker would not be held responsible for the pack being left in the plaintiff's abdominal cavity. 125If the compelling inference is that the pack in question was left behind in the procedure performed by Dr Sakker which, on the present state of the evidence, I consider is likely to be the case, a rational explanation is required for such an event. A debate centred around that explanation would be determinative of whether or not there had been causative negligence on the part of Dr Sakker. 126In the context of a discussion along those lines, Dr Sakker would not ordinarily be expected to recall the details of the events, even a few years after the operation, let alone some 20 years after the event by the time the matter were to be ready for a trial. However, that is presumptive prejudice, which is not the critical question in this context. The critical question here is whether significant prejudice arises as a result of such circumstances. 127In that regard, the presence or absence of the hospital records could in some circumstances play an important part in defence of the claim. For example, certain documents within those records would ordinarily be expected to have provided evidence of whether or not the relevant items were counted at the conclusion of the operation, and whether such counting was the subject of the signing off, in conformity with the usual practice identified by Dr Sakker. 128Accordingly, in assessing whether there is significant prejudice, it is important to examine the explanation for the non-availability of the hospital records. That examination must take place in the context of the known array of possibilities. 129The commonplace experience is that hospital records are often kept and archived in a systematic way, and as a result they are assumed to be available for inspection years later. It is plainly evident that is not the fact in the present case. 130Common experience also shows that sometimes hospital records can go astray due to misplacement, misfiling or because they have been taken out of the filing system for a variety of reasons and not refiled. There is no suggestion that any of these things have occurred in this instance. 131It is also well known that certain types of records are sometimes destroyed as a result of the implementation of a records management protocol in accordance with a planned records destruction programme that takes effect after a specified time has elapsed during which the records had been housed in archives. That does not appear to be the case here because the evidence of the most recent proprietors of the hospital is that they acquired the hospital in August 1994, which was 2 years after the defendant operated on the plaintiff. The operating theatres closed in 2004 and the hospital ceased trading in April 2007, and thereafter, all " relevant " files were deposited into the Government Records Repository: p 33 of the annexures to the Affidavit of Mr Swan, sworn 9 February 2011 . 132A request for a search of those files for the plaintiff's records produced the following response: "After closure of the hospital all relevant files were deposited into storage at the Government Records Repository at PO Box 516 Kingswood NSW 2747. We received a listing of records from them and after numerous checking's we are unable to find any reference to a file for Ms O'Hagan." 133Accordingly, there is no evidence that suggests the hospital records relating to the plaintiff would have been available as at April 2007 or shortly after that time when the hospital archived its records, which appears to have been at a time which was 6 months before the foreign body in question was discovered on examination of the x-ray films which revealed its presence. 134On the foregoing analysis, I conclude that the limited available evidence does not reasonably permit an inference or a finding that if the plaintiff's claim had been made within time, the hospital records would have been available to Dr Sakker. In my view, it follows from such a conclusion that it cannot be shown the records would have been available to assist in the defence of the plaintiff's claim even if it had been filed within time, or even at an earlier point in time. 135I therefore conclude that no significant prejudice arises that would relevantly impede the chances of a fair trial as a result of the non-availability of hospital records. 136Another important factor that weighs against a finding of significant prejudice is that assuming, at best, that the hospital records would have been available if the claim had been made within time, and assuming that such records confirmed that all of the surgical packs used in the operation were recorded and accounted for as having been removed from the plaintiff's abdominal cavity, such records of themselves would not displace the inference that the pack was left behind by the defendant when he closed the surgical incision into the plaintiff's abdominal cavity. 137Although it may be argued that a significant prejudice could arise if it could be shown that Dr Sakker's defence has been impeded by the non-availability of the hospital records because he can no longer obtain access to the information that would ordinarily reside within them as to the names of relevant witnesses, namely the scout or instrument nurse in the operating theatre, in my view, that argument is flawed for the reasons that follow. 138If the hospital records had been available, it may have been possible for Dr Sakker's representatives to obtain from the hospital notes the names of potential witnesses, namely hospital employees who were members of the theatre staff rostered to work on duty on 10 August 1992 in the theatre where Dr Sakker operated. 139However, the absence of the hospital notes does not necessarily preclude Dr Sakker's lawyers from otherwise obtaining information that identifies such persons as potential witnesses. In this regard, for example, it would ordinarily be expected that the company which owned and operated the hospital at the relevant time ought to have ordinarily kept in its archives the business records comprising employee wages registers and staff rosters which could have been consulted by Dr Sakker's legal representatives to attempt to seek the same information concerning potential witnesses, including their names and addresses. There is no evidence that such steps were taken by anybody to ascertain whether such records still exist. Therefore, this does not assist the advancement of a significant prejudice argument based on the unavailability of witnesses. 140Absent any evidence that such steps were taken and proved fruitless, I am not prepared to find that Dr Sakker has been significantly prejudiced in his defence on account of the unavailability of key witnesses. 141Even if I am wrong on the preceding point, it seems to me unlikely that a hospital employee whose job it was to count and sign off on a counting of surgical packs used during the course of an operation, would at a trial concede that a documented and signed count that fully accounts for all packs used, was likely to be incorrect. 142This analysis requires that I then return to the underlying premise of the case sought to be made by the plaintiff, which is that Dr Sakker allegedly left the pack in her abdominal cavity on 10 August 1992. 143It can be safely assumed Dr Sakker did not intend that a pack would be left behind in the plaintiff's abdominal cavity after the operation. This reveals the essential issue for trial to be whether it was more probable than not that the pack in question was left behind by Dr Sakker. 144Whilst hospital notes may have some bearing on that issue, in this instance they would not be determinative of the issue, and therefore not determinative of a defence which is reliant on evidence of invariable or usual operating theatre practice to seek to displace a compelling inference that the pack was in fact left in situ as a result of the surgery carried out by the defendant. 145In the absence of convincing evidence that the hospital records were in existence at the time the surgical pack was identified as a foreign body requiring removal on 2 October 2007, I am not satisfied that there is a significant prejudice to the defendant that would impede the prospects of achieving a fair trial on the issues. 146This leaves the matter of presumptive prejudice caused by delay in bringing proceedings which could affect the quality of justice: Brisbane South Regional Health Authority v Taylor per McHugh J at p 552. 147Whilst the delay between 1992 and 2010, or even from 1995 , which is 3 years later, is a significant one, the fact remains that the retained foreign body only came to light on 2 October 2007. Once it is recognised, as the evidence shows, that it was only on 13 May 2010 that the plaintiff started the thought process of making a connection between the operation carried out by the defendant on 10 August 1992 and the subsequent need for the operation to remove the foreign body on 2 October 2007, the length of the delay in the intervening period takes on a much diminished importance . T his is because the statement of claim was filed on 28 September 2010 and the application for lea ve was filed on 24 February 2011 . 148Whilst the described delay constitutes a presumptive prejudice which would have the potential to affect the quality of justice between the parties, it is not prejudice of a kind that disentitles the plaintiff to the relief sought . The presumptive prejudice identified does not equate to a significant prejudice in this case. 149In my view the delay between 13 May 2010 and the filing of the plaintiff ' s statement of claim on 28 September 2010, or the date of filing of the application for leave on 24 February 2011 is not significant or of a disentitling character. This is because the plaintiff ' s knowledge of a connection was only perfected by formal medical advice on 24 September 2010 , and her solicitor acted promptly th ereafter. Further, there is nothing in the chronology of events between 13 May 2010 and 24 February 2011 which demonstrates a re levant change in the ability of the defendant to defend the proceedings so as to point to a significant prejudice, as distinct fr om a con t inua tion of the presumptive prejudice that is to be expected by those circumstances .
Conclusion 150I have concluded that the plaintiff has an arguable claim to be pursued against the defendant: Issue 1 . That conclusion enlivens the need to consider her entitlement to a grant of leave pursuant to s 60G of the Act . I am satisfied that the gateway requirements of s 60I of the Act have been satisfied: Issue 2 . I have concluded that the plaintiff has established that it is just and reasonable that the plaintiff be granted leave to proceed particularly because no significant prejudice arises to impede the likelihood of a fair trial: Issue 3 .
Disposition 151As the plaintiff has fulfilled the necessary requirements to establish an entitlement to an order for leave to proceed with her action against the defendant pursuant to s 60G of the Limitation Act 1969, it follows that the defendant's motion seeking to strike out and dismiss the plaintiff's proceedings should itself be dismissed. These conclusions give rise to costs considerations.
Costs 152On the question of costs in the case of an application for an extension of time, ordinarily a successful applicant who has allowed him or herself to get out of time should bear the costs of the application unless the opposition to the application is wholly unreasonable : Holt v Wynter [2000] NSWCA 243; (2000) 49 NSWLR 128, per Sheller JA at [121]. 153In this case I have found the plaintiff's case for entitlement for leave to proceed to be compelling. I consider the defendant's resistance to the application was based on an erroneous view of the importance of the hospital notes to the defence of the claim, as well as being based on a misapprehension of the true significance of the application of Elliott v Bickerstaff to the circumstances of this case. 154In the case of the plaintiff's application for leave to proceed, in my view the plaintiff's claim for the grant of leave to proceed was compelling on the facts known at the time of filing. Whilst ordinarily a defendant is entitled to test the application by a plaintiff for leave, in the face of a compelling case for the granting of such leave, that stance should in my view involve exposure to an adverse costs order where the defendant had the option of conceding or not contesting the application. 155In this instance, the plaintiff acted promptly in September 2010 after recognising that she had a potential claim. Therefore, this is not a case where there should be an apportionment of costs because of any factors on account of delays caused by the plaintiff's actions: s 60L of the Act . 156In the case of the defendant's strike out motion, it must have been apparent that the prospects of that motion succeeding were at best uncertain, and more probably than not, remote. 157In these circumstances I see no basis upon which to depart from the general rule in respect of the result of that motion, with the result that the plaintiff's costs should be paid by the defendant.
Orders 158I make the following orders: (1)Pursuant to s 60G of the Limitation Act 1969, the time for filing of the plaintiff's proceedings against the defendant is extended to 29 September 2010; (2)Defendant's motion filed on 7 February 2010 seeking to strike out and dismiss the plaintiff's proceedings is dismissed; (3)Unless otherwise entitled, the defendant is to pay on the ordinary basis, the plaintiff's costs of the motion filed on 24 February 2011 seeking an extension of time in which to file proceedings; (4)Unless otherwise entitled, the defendant is to pay on the ordinary basis, the costs of the plaintiff in resisting the defendant's motion filed on 7 February 2011; (5)The exhibits may be returned; (6)Liberty to apply on 7 days notice if further orders are required.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2011
O'Hagan
Sakker
[1996] HCA 25
(1940) 64 CLR 538
(1996) 186 CLR 541
(1996) 39 NSWLR 13
(1997) 41 NSWLR 389
(2007) 70 NSWLR 151
(1964) 112 CLR 125
(2000) 49 NSWLR 128
(1940) 64 CLR 53
[1964] HCA 69