Raabe v The Brisbane North Regional Health Authority & Ors [2000] QSC 257

[2] The plaintiff's cause of action arises out of an appendicectomy and hysterectomy performed on her at the Royal Children's Hospital in 1986, when she was fourteen. The first defendant was the Health Authority with responsibility for the hospital; the second defendant is the plaintiff's mother. The third defendant was a clinical psychologist, whose role is far from clear from the pleadings, other than that it is broadly alleged that she, with other defendants, was engaged by the first defendant and attended on, gave treatment to, or advised the plaintiff. The fourth defendant was the Deputy Medical Superintendent of the hospital at the relevant time, while the fifth and sixth defendants were surgeons who operated on the plaintiff. As has already been said, the first, fourth, fifth and sixth defendants share representation, and I will refer to them collectively, for the sake of convenience, as the "Corrs defendants". The seventh defendant, it is said, was the plaintiff's general practitioner, and gave advice relevant to the decision to perform the operation.

[3] The plaintiff's complaint is that healthy organs were removed, and that she has been deprived of the ability to have a child. It is common ground that she suffers from some degree of intellectual impairment, and the essence of her case is that she was not properly informed and did not give informed consent to the operations in circumstances where it is suggested there was an ulterior motive on the part of her mother, the second defendant, to seek the operations. That motive, it is said, was in the form of suspicions, if not knowledge, of sexual abuse of the plaintiff by male members of her family. It is further said that the fourth defendant was aware of that situation prior to the operation being performed.

[4] The first issue is whether the plaintiff requires an order giving her leave to proceed. Rule 389 of the Uniform Civil Procedure Rules provides:

389 (1) If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month's notice to every other party of the party's intention to proceed.

(2) If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.

(3) For this rule, an application in which no order has been made is not taken to be a step.

(4) Until the end of the 30 June 2000, subrule (2) applies as if the reference to 2 years were reference to 3 years.

An interesting question as to the relevant time frame might arise in this case, in which the application was filed on the 27 June and was adjourned in Chambers on the 29 June 2000; but the parties have agreed that subrule (2) should be applied as it stood before the 30 June 2000; so that the relevant period in considering when the last step was taken is 3 years.

[5] The action has the following history. The writ of summons was issued on 4 November 1994. Entries of appearance were filed by the Corrs defendants and the seventh defendant in March 1995. (The evidence does not indicate whether the second defendant, who has not entered an appearance was ever served. The third defendant to the action died in 1990, but the plaintiff has not sought to substitute a personal representative of beneficiary of her estate as a party.) A statement of claim was delivered on 10 May 1995, and an amended statement of claim on 29 May 1995. The seventh defendant delivered her defence in July 1995. The Corrs defendants in June 1995 sought particulars, which were not delivered until August 1996; their defence was delivered on 16 December 1996. In January 1997, the plaintiff's solicitors sought disclosure from the Corrs defendants, and received a list of documents from their solicitors. In April 1997 the plaintiff served a statement of loss and damage on those solicitors.

[6] In July 1997, the plaintiff's solicitors sent a draft list of documents and an unsigned affidavit of privilege to Corrs Chambers Westgarth. The accompanying letter, dated 25 July 1997, read as follows;

" We refer to our letter dated 18 July 1997 and enclose the plaintiff's draft list of documents and affidavit of privilege.

We are presently arranging for the affidavit to be sworn by our client and we will serve you with the executed documents in due course"

It is contended for the plaintiff that the provision of those documents constituted a step in the proceeding for the purposes of rule 389. Thereafter, nothing further which could be said to constitute a step took place; although it is said in the affidavit of Mr Matich, a member of the firm of solicitors acting for the plaintiff, that the firm was between August 1997 and February 1998 making investigations to locate expert witnesses. Those investigations are not detailed, nor are they documented.

[7] Between February and June 1998, the plaintiff's solicitors appear to have remained in contact with her and her husband in relation to matters such as the execution of an authority of next friend. Between 5 June 1998 and 14 April 1999, there is no reference to any contact made with the plaintiff in relation to the matter. In the months which followed, the plaintiff's solicitors made contact with Dr Anthony Attwood, a psychologist, for the purpose of obtaining a medico-legal report. At the same time an application was made on the plaintiff's behalf for Legal Aid. In December 1999 the application was refused. An appointment was nonetheless made with Dr Attwood for a consultation in April 2000, and the next friend in the meantime assembled the necessary funds to pay Dr Attwood. At some point, probably in late April 2000, Dr Attwood's report was received. On 4 May 2000, the plaintiff's solicitors were reminded by counsel who had considered the report of the advisability of serving a Notice of Intention to Proceed. Such a notice was filed and was served on the solicitors for the Corrs defendants on 16 May 2000. A copy was served on the solicitors for the seventh defendant on 26 May 2000.

[8] Mr Allan for the plaintiff argued that the provision of an unsigned list of documents was a step in the proceeding within the meaning of rule 389. Order 35 of the Supreme Court Rules, as it applied at the time the list was furnished, did not require provision of a list of documents or an affidavit of documents, rather contemplating disclosure by production, or delivery of copies. The notes to the Rules as contained in Ryan Weld and Lee, Queensland Supreme Court Practice, suggested, however, that it was advisable that a list of documents be prepared, as a record of which documents were disclosed.

[9] There is a good deal of authority in relation to Order 90 rule (9) of the Rules of the Supreme Court, which was the predecessor to rule 389. That rule referred to the circumstance that "No proceeding has been taken" rather than, as in rule 389, that "No step has been taken in a proceeding". While the substitution of the expression "step.....in a proceeding " for "proceeding" suggests that something less formal may suffice, it also conveys a necessary quality of constituting an advance in the action. It remains, therefore, apposite to say, as did McPherson SPJ (as he then was) in Citicorp Australia Limited v Metropolitan Public Abattoir Board (1992) 1 QdR 592 at 594, that " the act or activity must have the characteristic of carrying the cause or action forward".

[10] In the present case, I do not think that the delivery of the list of documents can be viewed in isolation from the accompanying letter, which made it clear that the list was a draft and that further documents were to be served. The point is not that the affidavit and list were unexecuted; but rather that the defendants were given to understand that these were documents provided on an interim basis only, pending the delivery of executed documents. In short, I consider that, rather than constituting a further step in the action, the delivery of the draft list and affidavits were in the nature of a holding action designed to reassure the defendants' solicitors that final documents on which reliance could placed would be forthcoming. It follows therefore, that I must conclude that more than 3 years elapsed without the plaintiff taking a step in the proceeding; and that no further step may be taken without this Court's order.

[11] The question then arises as to whether an order should be made permitting further steps in the proceeding to be taken by the plaintiff. There is, of course, the associated question as to whether the action should be struck out for want of prosecution as urged by the defendants. The factors relevant to both types of application were set out by Atkinson J (with whom the other members of the Court of Appeal agreed) in Tyler v Custom Credit Corp Ltd and ors [2000] QCA 178 as including:

"(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 attributed 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 parties would be concluded by the striking out of the plaintiff's claim;

(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 is responsible is regarded as more difficult to explain than delay by his or her legal advisers;

(11) whether there is a satisfactory explanation for the delay; and

(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial."

[12] It is, as the defendants point out, now fourteen (14) years since the surgery the subject of the action took place. It is not surprising that the Writ of Summons did not issue until eight (8) years after the surgery, given that the plaintiff was unlikely fully to appreciate its effect on her fertility before reaching adulthood, and given the additional factor of her intellectual disability. The ensuing litigation has, however, been characterised by delay. That delay appears to have been largely the product of inaction on the part of the plaintiff's solicitors, rather than anything done or not done by the plaintiff herself.

[13] There is, it should be noted, a significant difference between the position of the Corrs defendants and that of the seventh defendant. Not withstanding her prompt delivery of a defence, the seventh defendant appears to have been entirely overlooked by the plaintiff's solicitors in terms of both correspondence and service of documents. Whereas the Corrs defendants were served with a Statement of Loss and Damage and the draft list of documents and affidavits already referred to, nothing was served on the seventh defendant. There was some correspondence in late 1996 in which the question of whether the proceedings would be discontinued as against the seventh defendant was canvassed; the plaintiff's solicitor advised, in the event, they would not. After that, from the material, it appears that the rest was silence until May 2000, when a Notice of Intention to proceed was served on the seventh defendant's solicitors.

[14] It does seem that the plaintiff's impecuniosity - she receives a disability pension - has contributed to some extent to the delay which occurred in 1998 and 1999 in retaining a medical expert. (That impecuniosity is not, of course, attributable to anything done by the defendants.) Mr Luchich, a solicitor in the employ of the solicitors for the seventh defendant, deposes to his belief that there are a number of legal firms in Brisbane operating on a "no win, no fee" basis who are prepared to meet outlays and disbursements. I do not think one would readily assume that the plaintiff, given her disability and her place of residence in Rockhampton, would be aware of such practices, or that the next friend, who is her husband, should be regarded as having that knowledge. The plaintiff's solicitors, of course, must be taken to be aware of the possibility that another firm would be prepared to advance the action for the plaintiff, notwithstanding her want of means; but that is not a compelling factor against the plaintiff herself.

[15] It is also noteworthy that when legal aid was refused, the next friend was able to save the money necessary for the medico-legal report; leading to the question whether, had he been warned at the outset of the action that such might be needed, the funds might have been available much earlier. On the whole, insofar as the plaintiff's impecuniosity has contributed to some extent to the delay in the action, I regard it as having been largely brought about by the failure of her solicitors to communicate properly with her and the next friend.

The State of the Litigation and the Effect of Striking Out

[16] As is clear from the history already set out, the action has advanced considerably further as against the Corrs defendants than it has against the seventh defendant, who has not to date received even a Statement of Loss and Damage.

[17] Because of the plaintiff's disability, the relevant limitation period will continue to run during her lifetime; and the dismissal of this action as against any defendant will not, subject to questions of abuse of process, preclude the commencement of a fresh action. There was some argument as to the likely effect of a striking out or refusal of leave to proceed. Counsel for the seventh defendant contended that any further attempt to proceed against his client in such circumstances would result in a striking out order for abuse of process. However, Madden v Kirkegard Ellwood & Partners (1983) 1QdR 649 makes it clear that a second action is not automatically to be struck out merely because a previous action has been dismissed for want of prosecution; but rather that it is a matter of considering whether all the circumstances are such as to make the second action an abuse.

[18] In the present case, it would not be appropriate for me to express any concluded view on whether the bringing of a second action against the seventh defendant would constitute an abuse of process. I merely observe that, as against all defendants, because there is no foreseeable end to the limitation period, it cannot be said in unequivocal terms that striking out the present action would achieve finality.

[19] Counsel for the Corrs defendants did not point to specific prejudice from the three year delay, but adverted to the more general prospect of prejudice through the effluxion of time, dealt with by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551. The defendant medical practitioners were most unlikely to have any actual recollection of the events, and would be forced to rely on notes, given the length of time since the surgery. Counsel for the seventh defendant, referred not only to that general proposition, but also to the specific difficulties of his client being unable to locate records and finding it necessary to try to remember the details of a conversation with the fourth defendant which took place fourteen years ago.

[20] As against the Corrs defendants, the plaintiff's case entails consideration of the relatively stark issue of whether surgery should have proceeded in all the circumstances. Clearly the outcome will depend on the evidence adduced as to the state of information of the medical practitioners involved, and what proper medical practice was at the time. As against the seventh defendant, however, the case is considerably less clear. There is a question in the first instance as to whether the seventh defendant was in fact the plaintiff's general practitioner, as opposed to the treating doctor of the plaintiff's mother.

[21] Certain documents were adduced in evidence as supporting the plaintiff's case as to the seventh defendant's involvement. In essence, reliance was placed on statements by the fourth defendant in correspondence to demonstrate that the seventh defendant was indeed the treating practitioner, and had expressed an opinion as to the desirability of the surgery. Particular emphasis was placed on the following statements in letters apparently authored by the fourth defendant:

* in a letter dated 23 April 1986: " Today, (Tuesday, 22.4.1986) I telephoned her general practitioner, Dr Margaret Scruton at New Farm and she is also in total agreement that it would be in Patricia's interest to have a total hysterectomy."

* in a letter dated September 9 1988: " She was first referred to me in April 1984 by Dr Margaret Scruton, her general practitioner, then at 890 Brunswick Street, New Farm 4005."

[22] It seems that the plaintiff hopes to rely on these documents as demonstrating that the seventh defendant was indeed the plaintiff's general practitioner, although they were not addressed to her and there is no evidence that she saw either. It is difficult to see how they could be admitted in the plaintiff's case as against the seventh defendant unless the fourth defendant were called in the plaintiff's case, a hazardous prospect. Even were that to occur, it must be doubtful whether the fourth defendant could in fact vouch for the accuracy of the statements as to the seventh defendant's role.

[23] An earlier letter, also, apparently, emanating from the fourth defendant, contemporaneous with his initial contact with the plaintiff, tends to support the seventh defendant's recollection, deposed to in her affidavit, that she was the general practitioner of the plaintiff's mother, not the plaintiff. It is dated 16 April 1984, is addressed to the seventh defendant, and commences, "I believe that you know this family well as you are treating Mrs Raabe who is grossly obese with diabetes". That does not suggest that there had been any referral of the plaintiff by the seventh defendant; rather, that she was being advised of the family position in reference to her treatment of the plaintiff's mother. Although the balance of the letter deals with the plaintiff's circumstances, there is nothing in it which would suggest referral by the seventh defendant, or that it was intended to be other than informative as to the family situation so far as it concerned the plaintiff's mother's health. Rather, the most probable conclusion from the correspondence taken as a whole is that contact was made with the seventh defendant in the first instance as the mother's doctor, and that when the fourth defendant wrote again two years later, he overlooked that fact and assumed because her name appeared in the file that she was the referring doctor.

[24] There is a further letter of 13 May 1986 from the fourth defendant, which is directed to the seventh defendant. It advises her that the plaintiff is to be admitted to hospital for a hysterectomy and appendicectomy. The letter concludes, "I do very much hope that this will ease the family burden". It contains nothing to indicate to the seventh defendant that she is being advised as the plaintiff's general practitioner, and nothing inconsistent with her belief that she was being consulted by the fourth defendant in her capacity as the general practitioner for the plaintiff's mother.

[25] Another difficulty, both in terms of proof of the plaintiff's case, and defence of it by the seventh defendant, is that the sole instance identified by those documents as entailing any degree of involvement by the seventh defendant in the lead up to the plaintiff's surgery consists of a telephone call by the fourth defendant to her. The seventh defendant's recollection, as deposed to in her affidavit, is that she was asked by the fourth defendant whether she had any objection to the plaintiff's having a hysterectomy and said that she did not. The fourth defendant expresses it in somewhat stronger terms in his letter of 23 April 1986: "She [the seventh defendant] is also in total agreement that it would be in Patricia's interest to have a total hysterectomy."

[26] The significance of such an opinion, if expressed, in considering the claim of negligence, would depend very much on the capacity in which it was given; in other words, whether the seventh defendant had a particular responsibility to the plaintiff as her general practitioner. That question is, at best for the plaintiff, clouded. The further problem is that one does not know from any of the available material what it was that the fourth defendant asked the seventh defendant, if anything; and whether her response was in any way qualified. It seems unlikely that a court at this juncture will be able to form any clear picture of either the content or the context of the seventh defendant's response; crucial matters in determining whether any negligence has occurred. One must conclude that the prospects of the plaintiff making out a case against the seventh defendant are not strong.

[27] For the reasons I have outlined, relating to the delay as against the seventh defendant, the particular prejudice to her, and the apparent paucity of any evidence which could lead to a conclusion of negligence on her part, I consider that leave should not be granted to the plaintiff to proceed in her action as against the seventh defendant, and that the latter's application to have the action struck out as against her for want of prosecution should succeed. Accordingly, the plaintiff's application for leave to proceed against the seventh defendant is dismissed, and I order that her action against the seventh defendant be dismissed for want of prosecution.

[28] In relation to the Corrs defendants however, the position is somewhat different. There has been delay, but not, in my view, of such proportions as to create injustice to those defendants should the matter be allowed to proceed. Such delay as has occurred is not, moreover, attributable to the plaintiff personally or to the next friend. There is no specific prejudice shown, and there are prima facie prospects of success. I consider it a proper case to grant leave to proceed as against the first, fourth, fifth and sixth defendants and to dismiss their application to strike out for want of prosecution, and I order accordingly.

[29] The second defendant was not was served with the plaintiff's application, and the plaintiff has not manifested any interest in proceeding against her. The third defendant, as already observed, is dead. On its face, the application is brought against all defendants. To remove any doubt, I dismiss the application for leave to proceed as against the second and third defendants.