Porzuczek v Toowoomba District Health Services

[1] MOYNIHAN J: On 5 April 2007 the defendant filed an application to dismiss the plaintiff's action for want of prosecution. In response, the plaintiff filed an application on 11 May 2007 seeking leave to take a new step in the proceedings pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR), 389(2).

[2] The action arises out of events which occurred on 5 and 6 July 1992. The plaintiff was injured in a rugby league game where he fractured his right tibia and fibula. He was transported by ambulance to the Toowoomba Base Hospital where he was admitted as an inpatient. On 6 July 1992 he was transferred to the Royal Brisbane Hospital were he remained an inpatient until about October 1992.

[3] The plaintiff sued for damages for injuries he allegedly suffered as a consequence of treatment he received as an inpatient at the Toowoomba Base Hospital. In general terms he alleges that the medical treatment he received for the injury was negligent.

[4] More specifically, the surgical staff of the hospital performed an open reduction and internal fixation of the plaintiff's fractured right tibia and fibula using a tourniquet to the right leg. It is alleged that the negligent use of the tourniquet caused the plaintiff to suffer injury.

[5] The plaintiff further alleges that the post-operative care he received was negligent, the post-operative elevation and use of a Thomas splint caused further injury.

[6] Lastly, the plaintiff alleges that the medical staff failed to inform him of alternative forms of treatment to the one which he received.

[7] As a consequence of the negligent treatment the plaintiff alleges he suffered the following injuries:

[8] The chronology, which is not exhaustive or intended to resolve contentious factual issues, is set out in the attached schedule. The more salient issues are dealt with in the following paragraphs.

[9] The court may dismiss a proceeding if two years have passed since the last step in the action was taken; s85 Supreme Court of Queensland Act 1991 (Qld), and has inherent jurisdiction to dismiss proceedings for want of prosecution if the circumstances justify it. A plaintiff who has not taken a step in a proceeding for two years cannot take a further step without leave.

[10] The period runs from the date of the last step taken by either party. 'Step' is interpreted in the same way as 'proceedings' in the former 0.90, r9 of the Supreme Court Rules; see Concord Park Pty Ltd v Allied Organik Limited.[1]

[11] The making of disclosure is to be regarded as a 'step' in a proceeding'. In Concord Park Pty Ltd v Allied Organik Limited,[2] McGill DCJ considered whether the service of a list of documents constituted a 'step' in the 'proceedings'. In His Honour's opinion, Citicorp Australia Ltd v Metropolitan Public Abbattoir Board[3] was authority for the proposition that:

production for inspection of documents, or deliver of copies and requested documents, is a step in the action, and mere preparation of an affidavit of documents is not. It follows that preparation of a list of documents would not be a step, but the decision does not say that delivery of an affidavit or list of documents is not a step in the action'.[4]

[12] In this action, no list of documents have been exchanged between the parties, but the plaintiff provided the defendant with a copy of a medical report dated 13 November 2001 under cover of a letter dated 30 July 2002. This followed the plaintiff's delivery of a notice of intention to proceed on 17 April 2002.

[13] The defendant submits that when the notice of intention to proceed was delivered, it had already been three years after any prior 'step' had taken place, namely the mediation in which the parties participated on 1 April 1999. As such, the plaintiff required leave to take the further 'step' in the 'proceeding' constituted by the disclosure of the report.

[14] At the time of this disclosure the defendant did not take issue with the plaintiff's failure to obtain the court's leave and concedes that such disclosure should be regarded as an irregularity rather than a nullity: see UCPR r371(1).

[15] On 9 December 2004 the plaintiff provided the defendant with a copy of Dr Haertsch's report dated 19 October 2004. On this occasion, the defendant's solicitor returned the report under cover of a letter dated 15 December 2004 stating leave of the court was required prior to a step being taken in the action. This purported disclosure does not constitute a 'step' in the 'proceeding'.

[16] In my opinion, the delivery of the report on 2 August 2002 was a step in the action, some 4 1/2 years have now lapsed since that 'step' was taken.

[17] The relevant general considerations applicable in applications such as this are conveniently collected in the judgment of Atkinson J (McMurdo P and McPherson JA agreeing) in Tyler v Custom Credit Corp Ltd v Ors:[5]

1. how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;

2. how long ago the litigation was commenced or causes of action were added;

3. what prospects the plaintiff has of success in the action;

4. whether or not there has been disobedience of Court orders or directions;

5. whether or not the litigation has been characterised by periods of delay;

6. whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;

7. whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;

8. whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;

9. how far the litigation has progressed;

10. whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed if responsible is regarded as more difficult to explain than delay by his or her legal advisers.

It is convenient to deal with the issues in this case under the following headings:

How long ago did the events occur before litigation was commenced and how long ago was it commenced?

[18] It will be appreciated from the chronology that it is 15 years since the events giving rise to the action. The proceedings were commenced on 3 July 1996, four years after the events, when the plaintiff filed a statement of claim in the Wollongong registry of the Supreme Court of New South Wales.

[19] The action was already out of time and on 21 July 1997 the limitations period was extended to 11 August 1996 and the proceedings were transferred to this court. The last step in the action occurred approximately 4 1/2 years ago.

[20] A statement of claim and defence have been filed.[6] Pleadings have closed, but do not comply with the requirements of the UCPR.

[21] Disclosure is not complete. The material provided about the plaintiff's condition needs to be updated with further medical reports and an updated statement of loss and damage. It is most likely that the defendant would also wish to obtain updated independent medical examinations and reports.

[22] Put shortly the action is not ready for trial.

[23] In considering a plaintiff's prospects of success, Ambrose J in Hood & Anor v State of Queensland & Ors[7] summarised the approach as follows:

Upon an application of this sort it is unnecessary for a plaintiff to show that if [his] case be accepted it is likely that [he] will succeed in [his] claim.

Equally however it is unnecessary for a defendant opposing the grant of leave to demonstrate that the plaintiff will certainly fail in her action should [he] be given leave ...

In my view it will suffice for the plaintiff on this application to show only that it is reasonably arguable that [he] will succeed; however it may be insufficient if [he] shows that it is only faintly arguable that [he] will succeed - particularly in the light of [his] delay and the consequent prejudice to the defendant.

[24] The plaintiff has reasonable prospects of success based on the material of facts pleaded and his medical evidence. Both will however be challenged and probably be the subject of contentious evidence at trial. It is impossible to predict the outcome of the resolution of issues at trial. If the plaintiff is successful in proving negligence his damages will be substantial given his age and the consequences of his injury.

[25] There has been no disobedience to court orders or directions. It can however be said that the provisions of the rules as to the steps in progressing an action to resolution in a timely way have largely been ignored.

[26] Upon the UCPR coming into force on 1 July 1999 the parties were subject to an implied undertaking to proceed expeditiously: UCPR 5(3). The plaintiff had the carriage of the action, however the defendant was prepared to let sleeping dogs lie from 1999 to 2004 when it's solicitors returned Dr Haertsch's medical report.

The cause of delay & whether the delay caused by the plaintiff's lawyers should be sheeted home to the client

[27] The plaintiff contends that the delay has not been caused by any default or personal neglect on his behalf, but was the result of his then solicitor's incompetence.

[28] The plaintiff was a teenager when the action commenced. After first consulting his former solicitors in 1993 he retained them to act on his behalf in 1995. He was unemployed between 1992 and 2002 when he commenced employment as a process worker. He is still in this employment to date. The plaintiff asserts that his impecuniosity was a factor contributing to the inactivity of his former solicitors who had to fund the acquisition of medical reports and other disbursements.

[29] The solicitor was retained on a speculative basis. The plaintiff submits this can explain inactivity in the matter as 'speculative work has traditionally been assigned in solicitors offices to junior and less experienced staff'. On the other hand this is arguably an incentive to deal with the action expeditiously. The plaintiff's former solicitor deposes:[8]

22. I was operating well out of my area of expertise and that the plaintiff's cause of action may have been irretrievably lost as a result of same.

[30] In my view the delay in this action is largely attributable to the dilatoriness, incompetence and neglect of the solicitor originally retained by the plaintiff.

[31] It is therefore necessary to consider the extent to which the delay by the plaintiff's former solicitor is to be sheeted home to him. In Vlies v The Commonwealth,[9] McMurdo J considered the plaintiff's role in delay by the solicitors retained in the action. He rejected their submission to the effect that a delay which puts a fair trial at risk is not so important when it is caused by the lawyers rather than the client.

[32] McMurdo J agreed with the remarks of Derrington J in Cooper v Hopgood and Ganim[10] that incompetence of the plaintiff's lawyer may not always provide a convincing answer because the circumstances may require the plaintiff to engage lawyers who would prosecute the case.

[33] The plaintiff deposes to having 'intermittent' contact with his solicitor over a period of approximately six years, with his solicitor quite often not being available to speak with him and failing to return his calls.

[34] The plaintiff attended medico-legal appointments between 2000 and 2002 which provided him with comfort that his matter was progressing. He further deposes:[11]

On occasions when I did speak with [my solicitor] she advised me in words to the effect 'the matter is proceeding, it will take some time as the courts in Queensland are slower than new South Wales and we will keep you informed of developments as they occur'.

[35] A client should be able to rely upon his solicitor. The plaintiff was a young man with little income. That said he was exceptionally forbearing in his tolerance of the delay, deposing to be frustrated with his inability to contact his solicitor and was 'concerned and dissatisfied about the apparent lack of progress of [his] claim'.[12]

[36] The plaintiff did not press for his case to be prosecuted when it was in his interest to have the matter resolved expeditiously. He took no steps to pursue any avenue of complaint and did not seek advice from another practitioner until his solicitor advised him that she could not act for him any more and had asked another solicitor to take over the conduct of his action.[13]

[37] I therefore conclude that the delay in the proceeding is primarily the fault of the plaintiff's former solicitor, but that he failing to pursue his action more vigorously, although that is not of itself a decisive consideration.

Whether striking out would dispose of litigation

[38] The limitation period has long expired and striking out the action would conclude litigation between the parties with respect to the events of 5 and 6 July 1992. This is a relevant consideration which favours the plaintiff: Cummins v Davis.[14]

[39] The onus is on the plaintiff to show that any prejudice to the defendant may have suffered because of the delay would not lead to injustice if the action is allowed to continue. There are a number of factors to be considered under this head.

[40] The general considerations identified by McHugh J in Brisbane South Regional Health Authority v Taylor[15] apply:

Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (22), "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly it must often happen that time will diminish the significance of a known act or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A conflict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

[41] There are a number of considerations which arise in the specific circumstances of this action. The plaintiff deposes that all relevant witnesses are available and there is a comprehensive volume of contemporaneous medical reports and clinical notes concerning the matter. He also deposes that Dr Maxwell Brightman was the plaintiff's primary treater and 'the other doctors are peripheral being either those who treated at Royal Brisbane Hospital or who were involved in follow up after th failed treatment of the plaintiff had come to notice'. That is no more than his opinion.

[42] The defendant's solicitors depose to having attempted to contact the relevant attending medical staff to ascertain the extent of their independent recollection of treatment provided to the plaintiff. Those who could be located have no recollection except for Dr Maxwell Brightman who has 'quite a good recollection of the case as it was quite unusual'.

[43] The defendant's solicitor also deposes that a number of the registered nurses involved in the plaintiff's post-operative care and, perhaps, involved in the decision to place the plaintiff in the Thomas splint cannot be located.[16]

[44] It is true there are contemporaneous medical records and clinical notes. The difficulties inherent in relying on such evidence when a witness has no independent memory of the matters spoken of in the statement were referred to in Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd (No 2).[17] The weight of the notes is considerably diminished in those circumstances.

[45] In my view there is significant prejudice to the defendant as a consequence of delay by reason of the conditions canvassed.

[46] I am not satisfied that the factors which favour the plaintiff, his predicament is largely the fault of his former incompetent solicitor and the fact that he will be permanently denied the opportunity to pursue his claim, outweighs the prejudice to the defendant as a consequence of the delay.

[47] I am therefore not satisfied that there is good reason for excepting this proceeding from the general prohibition and proceeding after that has been a delay of more than two years.

[48] The plaintiff's application should be dismissed and the action should be struck out for want of prosecution.

Plaintiff injured in a rugby league game where he fractured his right tibia and fibula, transported by ambulance to the Toowoomba Base Hospital

Plaintiff alleges he suffered an injury whilst he was a patient at the Toowoomba Base Hospital where he was under the principle care of Dr Brightman and to a lesser extend Dr Kirkpatrick with Dr Franz being consulted

Plaintiff transported to the Royal Brisbane Hospital where his surgical treatment comprised amputation of his right toes and portion of his right foot

Plaintiff discharged from Royal Brisbane Hospital. He returned home to Corrimal on the South Coast of New South Wales and remained out of work until 2002

Plaintiff underwent treatment and experienced problems with infections and made numerous visits to the Port Kembla Hospital for rehabilitation

Plaintiff underwent further operative treatment by way of muscle flap transfer at Prince of Wales Hospital in Sydney. He was an inpatient for approximately four weeks.

Plaintiff issued a statement of claim out of the Wollongong registry of the Supreme Court of New South Wales

Limitations period extended to 11 August 1996 and proceedings transferred to the Supreme Court of Queensland by order of Levine J

New South Wales Supreme Court transfer order received in the Supreme Court of Queensland

Matter referred to alternative dispute resolution by the Senior Judge Administrator

Plaintiff's solicitor filed a Notice of Objection to referral to alternative dispute resolution on the grounds that the pleadings had not closed, interlocutory steps had not been completed and the matter was in no way at a stage whereby an appropriate settlement could be negotiated

Copy of defence dated this day on defendant's file - not filed

Defendant served a request for further and better particulars

Defendant's solicitors write to professor WS Egerton, Clinical Professor of Vascular Surgery at the Royal Brisbane Hospital furnishing material and presumably seeking a medico-legal report

Professor Egerton provides report served on plaintiff's solicitors on the issue of liability

Professor Egerton provides second report which is served on plaintiff's solicitors on the issue of liability.

Consent order made by Byrne J requiring a mediation be held within three months of the date of the order

Plaintiff underwent procedure to lengthen his Achilles tendon and for growth removal

Mr JJ Clifford QC filed a mediator's certificate advising that the parties had not yet resolved the dispute

Plaintiff recommences employment as a process worker with Clobber Leather and remains in this employment to the present. Plaintiff in receipt of a disability support pension

Notice of change of solicitor filed appointing Minter Ellison as the defendant's solicitors

Plaintiff's solicitors served a notice of intention to proceed

Defendant's solicitors receive letter from plaintiff's solicitors dated 30 July 2002 enclosing the report of Dr Wylie

Defendant's solicitors receive a letter from the plaintiff's solicitors dated 6 December 2004 enclosing the report of Dr Haertsch dated 19 October 2004

Defendant's solicitors sent a letter to the plaintiff's solicitors returning the report of Dr Haertsch stating leave of the court was then required prior to a step being taken in the action - no response was received to this letter from the plaintiff's solicitors

Plaintiff underwent a further operative procedure by way of muscle flap transfer

Defendant's solicitors sent a letter to the plaintiff's solicitors - no response was received to this letter from the plaintiff's solicitors

Stephen O'Halloran of White Barnes Solicitors receives telephone call from the plaintiff's solicitor requesting he take over the matter

Stephen O'Halloran of White Barnes Solicitors has a conference with the plaintiff and the plaintiff's mother for the first time

Stephen O'Halloran of White Barnes Solicitors forward authority to the plaintiff's solicitors

Stephen O'Halloran of White Barnes Solicitors receives file from plaintiff's former solicitors and writes to the plaintiff requesting a conference

Plaintiff writes to his former solicitors making suggestions to advance the matter and in respect of a possible LawCover claim

Plaintiff has conference with Stephen O'Halloran of White Barnes Solicitors

Defendant's solicitors received a letter from White Barnes Solicitors dated 21 July 2006 advising they had taken over the conduct of the matter for the plaintiff and expected to receive instructions to apply for leave to proceed with the claim

No response received from plaintiff's former solicitors. Stephen O'Halloran of White Barnes Solicitors writes to Murphy Schmidt, Queensland agents - shortly after receives advice file in archives

Murphy Schmidt write to White Barnes Solicitors advising file retrieved from archives and make recommendations in respect of an application for leave to proceed

Plaintiff's former solicitors write to White Barnes Solicitors advising LawCover involved

Plaintiff's former solicitors write to White Barnes Solicitors requesting the file be returned re LawCover - file reassembled and work done in respect of preparation of affidavits

Stephen O'Halloran of White Barnes Solicitors works on file reassembly and preparation of affidavit

Defendant's served application and supporting affidavit on Taylor & Scott Lawyers, the plaintiff's solicitors on the record

Taylor & Scott sent facsimile to defendant's solicitors advising that White Barnes Solicitors had taken over the file for the plaintiff and that their correspondence of 5 April 2007 had been forwarded to them

White Barnes Solicitors served with defendant's application

Defendant's solicitors receive a letter from White Barnes dated 13 April 2007 confirming they had received the defendant's correspondence of 5 April 2007

Plaintiff's former solicitors return file to White Barnes Solicitors

Stephen O'Halloran of White Barnes Solicitors swears affidavit

Stephen O'Halloran of White Barnes Solicitors swears affidavit

Return date for defendant's application for dismissal of action

[1] [2003] QDC 420.

[3] [1992] 1 Qd R 592, 5.

[4] See also Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214.

[5] [2000] QCA 178.

[6] The statement of claim was filed in the Wollongong Registry of the Supreme Court of New South Wales on 3 July 1996. The defence dated 25 September 1997 has not been filed in the court: see affidavit of Sonja Irene Brown sworn 16 May 2007, Exhibits 'SIB10' - 'SIB11', court file document 22.

[7] [2002] QSC 169.

[8] Affidavit of Lisa Powell sworn 11 May 2007, para 22, court file document 20.

[9] [2004] QSC 404.

[10] [1998] QCA 114; [1999] 2 Qd R 113, 124.

[11] Affidavit of Timothy Walter Porzuczek sworn 10 May 2007, para 15, court file document 18.

[12] Affidavit of Timothy Walter Porzuczek sworn 10 May 2007, para 19, court file document 18.

[13] Affidavit of Timothy Walter Porzuczek sworn 10 May 2007, para 19, court file document 18.

[14] [2001] QCA 293, 20.

[15] [1996] HCA 25; (1996) 186 CLR 541, 551.

[16] Affidavit of Sonja Irene Brown sworn 5 April 2007, paras 33-35, court file document 14.

[17] [1997] QCA 376; (1998) 2 Qd R 551, 557 (Pincus JA).