Smit v Chan & Ors

[1] MACKENZIE J: This is an application by the second defendant for summary judgment under r293 UCPR. Alternatively, security for costs is sought in the sum of $67,000.

[2] The case is one where the plaintiff contracted Guillain-Barre Syndrome and has taken action for negligence against the first four defendants, who carried on a medical practice which he attended in August 1992, the fifth defendant which was a company managing the medical centre and the sixth defendant which conducts Redlands Hospital and the QE11 Hospital, both of which the plaintiff attended during the relevant period.

[3] The case against the second defendant essentially depends on proof that he was negligent in failing to diagnose the condition in a timely manner, or to refer the plaintiff for specialist treatment in a timely manner. The plaintiff, who suffered serious consequences of the illness, is no doubt deserving of a great deal of sympathy. However, the evidence suggests that there are simple issues, although depending on complex medical evidence, relating to the time when the diagnosis ought to have been made and as to the likelihood of a better outcome for him being achieved had it been diagnosed earlier. Those must be resolved in his favour before he can recover for the tort of negligence.

[4] As Mr Williams QC submitted on the plaintiff's behalf, the second defendant's position must be judged in the context of what had preceded his participation in the matter. A brief chronology of the matter is set out in the succeeding paragraphs. It is a reasonably common feature that the notes made by the doctors do not wholly coincide with what the plaintiff alleges he complained of to them. It is a question of fact as to what was said on each relevant occasion.

[5] On 5 August 1992 the plaintiff saw the first defendant. The plaintiff and the doctor's notes agree that he complained of swollen glands in the neck and a sore throat. The plaintiff says he also complained of swollen glands in the groin, a general feeling of weakness and tingling of his left palm. The doctor prescribed an antibiotic.

[6] On 6 August 1992 at 7.15am the plaintiff saw the third defendant. The doctor's notes recorded widespread pruritus, three to four weeks of dry cough, mild myalgia, low back pain, recent clinical submental lymph nodes and mildly tender left inguinal-femoral lymph nodes. The plaintiff said he complained of the same symptoms as the day before other than tingling in the left palm. In addition, he complained of wide spread burning feeling in his arms and legs and a stinging sensation in his arms and legs.

[7] The diagnoses of pruritus possibly secondary to the antibiotic was made and a substitute was prescribed and a number of tests arranged. The patient was told to follow up with the first defendant.

[8] At 11.45am on 6 August 1992, he saw the second defendant. The doctor recorded that the patient still complained of pains in the limbs and advised him to await the results of the tests which had been arranged and prescribed panadine forte. The plaintiff says he complained of the same matters that he had originally complained of except the tingling of the left palm, but also complained of increased widespread burning feeling in his arms and legs, stinging and crawling sensation in his arms, legs and abdomen, tingling in his fingers and toes and pain around his hips and back.

[9] On 6 August 1992 at 7pm he went to Redlands Hospital where a physical examination was performed, panadol was prescribed and he was advised to return to his general practitioner.

[10] On 7 August 1992 at 9.23am he again saw the second defendant. He told him that he had been to Redland Hospital. The doctor's notes indicate that he complained of a burning pain in the legs and groin. The plaintiff says he complained of a wider range of matters. In any event, the plaintiff was referred to QE11 Hospital where he was diagnosed as suffering from viral myalgia and prescribed anti-inflammatories and paracetamol.

[11] On 7 August 1992 at 4.15pm the plaintiff again went to QE11 Hospital. He was admitted and swabs were taken for viral serology. He stayed overnight and was discharged at 10.30am on 8 August. He returned at 6.32pm but left about 9pm without seeing a doctor.

[12] On 8 August 1992 at 9.30pm he saw the fourth defendant. He indicated he had been to the QE11 Hospital. According to the doctor's notes the plaintiff's throat was red and inflamed and he claimed to have glandular fever. The plaintiff says he complained again of a wider range of sensations. He asked for pethidine which was refused.

[13] On 10 August 1992 at 1.04pm he attended QE11 Hospital. He said he complained of a number of sensations. The hospital records indicate he complained of a sore throat since 8 August 1992 and slightly abnormal sensation all over his body. He was reassured that it was a viral illness and told to continue with the antibiotics.

[14] On 11 August 1992 he saw the first defendant and complained again about a variety of sensations.

[15] On 12 August 1992 at 1am he attended Redlands Hospital and was referred to Princess Alexandra Hospital. He was advised to return in the morning for further tests.

[16] On 12 August 1992 he again attended the Redlands Hospital. By this time he required assistance of nursing staff and a wheelchair to be taken into the hospital. He was referred to the Princess Alexandra Hospital. He was complaining at that time of numbness over the whole body, inability to walk and an episode of inability to breath at about 6.30pm the previous night. On this occasion the diagnosis of Guillain-Barre Syndrome was made and he was transferred to QE11.

[17] The second defendant, as can be seen, was only concerned in events on 6 and 7 August 1992. The plaintiff's case against him rests on an opinion from Professor Dwyer, Professor and Chairman of the Department of Medicine at the Prince Henry and Prince of Wales Hospitals in Sydney. The first opinion relied on is dated 16 November 1998. It contains the following passage:

"The final consultation with a physician at the Capalaba Medical Centre late on 6 August 1992 should, in my opinion, have provoked a more serious reaction. The crawling, stinging sensations reported by the patient, the tingling in his fingers and toes, general weakness and difficulty in moving with pain around his hips and lower back clearly suggested serious illness. While I believe that most physicians would not at that stage have made a diagnosis of atypical Guillain-Barre Syndrome (the typical motor components were clearly not present at this time), alarm, careful monitoring and referral to an appropriate specialist (Neurologist), were certainly indicated."

[18] The second is dated 4 December 1998 and contains the following:

"Certainly, the symptoms described would be most atypical for the sort of viral infections that seem to have been considered by Drs Chan and Craddock. While one would not have expected either of the previously mentioned doctors to have diagnosed Guillain-Barre Syndrome they most certainly should have been alert to possibilities other than that of uncomplicated viral infection given Mr Smith's repeated descriptions of symptomatology."

[19] The defendant's solicitors wrote to him on 25 September 2000 referring to the passages quoted. The letter then proceeded as follows:

"Our summary of these views is that in relation to the consultations with Dr Craddock on 6 and 7 August 1992 you feel that he should have:

(a) been more concerned about the patient's condition;

(c) arranged referral to an appropriate specialist (Neurologist).

In fact, what happened is that Dr Craddock on 6 August 1992 recommended the Plaintiff await the results of various tests which had been ordered and on 7 August 1992 when the Plaintiff complained of severe pain, referred him to the Queen Elizabeth 11 Jubilee Hospital which we are instructed is a tertiary referral level of hospital.

Would you please indicate whether it was reasonable for Dr Craddock to suggest the patient await the results of tests as a form of monitoring, and then when the Plaintiff came back and complained of severe pain, referred him to the Queen Elizabeth 11 Jubilee Hospital rather than a neurologist, bearing in mind that, at that time there were no specific motor signs or symptoms. If so does what he in fact did satisfy your concerns as set out above.

We have raised these issues because it seems to us that, irrespective of the position of the other Defendants, there are good grounds for suggesting Dr Craddock did review the patient at an early time and did refer him to an institution with better resources and expertise. We particularly seek your opinion as it is one which we consider will be very persuasive with Mr Smith and his solicitors, Trilby Misso."

[20] To this Professor Dwyer replied on 24 October, 2000 in the following terms:

"Your information is that on the 6th of August 1992 Dr Craddock recommended the plaintiff await the results of various tests which had been ordered, but on the 7th of August 1992 because of the patient's severe pain, referred him to the Queen Elizabeth 11 Jubilee Hospital which he believes is a tertiary referral Hospital for the area. If Dr Craddock, within 24 hours of becoming acquainted with the case, felt that he could understand the pathology and that tertiary level hospital expertise was needed to unravel the problem, then I believe the referral to Queen Elizabeth 11 Jubilee Hospital did fulfil his duty of care to the patient at that time. The symptoms were clearly neurological and one would anticipate that Dr Craddock had every reason to believe that a neurological opinion could be sort urgently through the emergency room of that hospital."

[21] It was not suggested by Mr Williams that there was any other medical opinion favouring the conclusion that the second defendant should have done more than he did. The second defendant's counsel sought to interpret Professor Dwyer's last report as resiling from his earlier opinions. Mr Williams submitted that it was ambiguous and that its precise meaning and the factual basis for it should be determined at trial. Three observations may be made.

[22] One is that if as seems possible from the state of the evidence at the moment the only evidence possibly supporting the plaintiff's case in respect of the second defendant is Professor Dwyer's, one would expect that it might be clarified definitively before the matter proceeds any further.

[23] The second is that Mr Williams submitted that the proper course was to allow the matter to proceed, with a ruling being made at the end of the evidence whether there was evidence of negligence fit to be left to the jury in the case of the second defendant and if there was, for the trial judge to direct appropriately on its strengths and weaknesses. Once again, one would have thought that the process of gathering expert opinion before trial was objectively preferable to embarking on a trial involving a party where it was by means clear, because of the ambiguity of the medical opinion, that there was a case against him.

[24] The third is that if the evidence as it stands is truly ambiguous there seems to be a problem about an application of this kind succeeding if the evidence remains in that state, especially where there are factual contests over the plaintiff's description of his symptoms to the second defendant. It seems to follow that if, taking the plaintiff's case as its highest, Dr Dwyer was still of the view that the second defendant had not been negligent that should be the end of the matter with regard to him.

[25] No doubt in a case like this where the plaintiff has suffered serious consequences of a disease, natural sympathy for his plight would be high, especially before a jury. But that ought not to be allowed to override the legal principle that cases should not be allowed to proceed if truly unsupported by evidence. That is what underlies r293 UCPR.

[26] The question is whether this is the case in the present matter. It is true, as Mr Williams submits, that it is not an accumulation of opinion of medical practitioners which is decisive in cases of this kind. As the joint judgment of the High Court in Rogers v Whitaker (1992) 175 CLR 475, 487 observes, it is for the courts to adjudicate on what is the appropriate standard of care even though evidence of acceptable medical practice is a useful guide for the courts.

[27] The nature of the test under r293 UCPR was analysed by White J in Crawley v Rolley; Tanner v Rolley [2000] QSC 139, 16 May 2000. After reviewing a series of decisions on similar provisions in other jurisdictions, including Dey v Victorian Railways (1949) 78 CLR 62, Wilson v Union Insurance Co [1992] NTSC 107; (1992) 112 FLR 166 and Shipard v Motor Accident Commission (1997) SASR 240, she concluded that, at best for the applicant in the case before her, the test was the same as that in which the plaintiff seeks summary judgment and referred to the well known passage from the judgment of Barwick CJ in General Steel Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125, 129. There is no reason to disagree with White J's analysis.

"The obligation to be discharged by the defendant in an application made under (the rule) is a stringent one, and the power must be exercised with great care. As the Chief Justice said in Coombes & Barei Pty Ltd v Lincolne Scott Australia Pty Ltd (unreported, Supreme Court, Full Court, SA, No S6045, 28 February 1997 (at p3):

'It is not sufficient that the court might think it is likely that at the end of the day the party who invokes (the rule) will succeed, or even that the court thinks success for that party is more than likely. The requirement of the rule is more demanding than that. The rule performs an important function, particularly these days where there is an emphasis upon efficiency in the conduct of litigation, in enabling the court to dispose promptly and economically of claims entirely lacking in merit. But at the same time the court must be careful not to dispose of claims in this way unless they really are lacking in merit.'

It is quite inappropriate, when the outcome may depend on nuances of fact and degree, that the fate of the proceedings be determined in a summary fashion under this rule."

[29] While the characterisations of opinion in the first sentence of the second paragraph in that quotation strike a resonant chord, I am not satisfied on the state of the evidence that there is a basis for giving judgment for the second defendant. The application in that respect is therefore refused.

[30] As to the application for security for costs, r670 to r672 UCPR provide for ordering a plaintiff to give security for costs and set out prerequisites and discretionary factors in deciding whether to do so. Reliance was placed on r671(h) as the relevant prerequisite. The discretionary factors are a rendering in the rules of factors ascertainable from pre-existing case law. As a general rule an order would not be made, in the absence of exceptional factors, against an impecunious individual litigant within the jurisdiction (Harpur v Ariadne Australia Ltd (1984) 2 QdR 527, 530).

[31] There is no apparent exception to the ordinary rule in this case. In all probability the plaintiff is acting in good faith on the advice of his legal advisers in pursuing the action against the second defendant. The real concern is whether or not there is a primi facie case against the second defendant. This appears to turn on the statement from one expert which, if clarified, may conclusively destroy or alternatively strengthen the plaintiff's case against that defendant. If the case proceeds without such clarification and it turns out at trial that the case against the second defendant is unsupported by evidence, which could have been easily verified by the plaintiff's legal advisers, perhaps an innovative costs order at trial may be seen as the way of protecting the second defendant. The application insofar as it relates to security for costs is refused.

1. The applications in paragraphs 1 to 4 of the application are refused.