Thomas v Glaxo Australia [1999] NSWSC 282 | Case summary

That it failed to withdraw Myodil from the market. 8 The first defendant did include a warning on its packaging in 1978. The learned Master found that in the light of the state of knowledge in 1978, it had not been shown that the warning was inadequate or that it would be shown to be inadequate. There was no possible case made of negligence for failure to withdraw the product from the market. On the evidence available any spinal surgery without prior myectomy was undesirable and the alternative contrast agents available were not considered satisfactory in any of the United Kingdom, New Zealand or Australia. The Master so found. There is no ground of appeal specified in the notice of appeal from this part of the judgment. It follows, and the Master so held, that the plaintiff had established no real case against the first defendant and that no extension of time should be granted to bring the action against that defendant unless the principles set out in Briggs v James Hardie & Co Pty. Limited (1989) 16 NSWLR 549 at 564-5 could be brought to the assistance of the plaintiff. The relevant passage quoted by the learned Master set out in her judgment is that from the judgment of Hope JA at page 554, which is as follows: As I would understand this principle, it does not mean that in no circumstances can one of a number of defendants be dismissed from an action. Indeed such a course is often adopted. But where a plaintiff brings an action against two defendants alleging that one or both are liable, and there is some evidence to connect each defendant with the events the subjects of the action, then provided the plaintiff establishes a prima facie case against one of the defendants, the other defendant will not be dismissed from the action until the whole of the evidence has been heard. As it seems to me this means that a plaintiff is entitled to bring an action against two defendants if he has evidence to establish a prima facie case against one of the defendants, and also has evidence pointing to the possibility of the other defendant being liable. 9 The Master emphasised the words "and also has evidence pointing to the possibility of the other defendant being liable", or perhaps she understood the words were given emphasis by Beazley JA in Dow Corning Australia Pty. Ltd v Paton (1998) Australian Torts Reports 81.485, and in my opinion close attention ought to be paid to them on an application such as the one here in question. Where an action is brought within time and a plaintiff sues multiple defendants it can be perceived to be fair for the plaintiff to be entitled to have all the evidence in which may be adduced by the plaintiff or by any defendant, before an application by one of those defendants for a verdict by direction is allowed to be made. The reasons for this were explained in Menzies v Australian Iron & Steel Limited (1952) 52 SR(NSW) 62. But in an extension of time matter where the court has to consider whether it is just and reasonable to extend a limitation period to allow an action otherwise barred to proceed, it is certainly just and reasonable to see whether there is any evidence pointing to the possibility that one defendant - here Glaxo - could be found liable, and before all the evidence is in. In the long run the Master did not have to determine that matter because she found that there was no evidence available or which might be available to establish the plaintiff's claim against the second defendant or the third defendant. Assuming that she was incorrect in that finding it is my view that there was no evidence pointing to the possibility of the first defendant being liable. There was nothing to show any evidence could be adduced to support the claim that Myodil should have been withdrawn, because as I have said there was evidence that myectomy was a desirable and really necessary procedure, and that a substance such as Myodil was the appropriate substance to use as a contrast agent as other substances were less suitable and one was needed. The Master also found that it has not been established by any evidence, or that it might be established by evidence in the future that the warning was insufficient. In such circumstances, even leaving aside the decision of the Court of Appeal in Dow Corning by which, of course, I am bound, I would dismiss the appeal so far as it concerned the first defendant. I say "even leaving aside" because in Dow Corning Beazley JA said at 65,246 that the principle set out in the quoted passage from Briggs did not operate in relation to claims against successive as opposed to joint tortfeasors. Senior Counsel for the first respondent raised this matter saying that the defendants in this case were not joint tortfeasors so that the Briggs principle did not apply. I did not think he had much enthusiasm for this submission and I can well understand why. I think it certain Beazley JA intended to include "concurrent tortfeasors" when she used the words "joint tortfeasors". If she did not then the cases such as Menzies could not have been relied upon to support the statement which I have set out from the judgment in Briggs. I conclude that there is no evidence, nor any evidence to show any evidence might be available, to suggest that might be liable. In those circumstances, while bearing in mind the possibly differing requirements in applications under s60G as opposed to s58(2), the appeal should be dismissed so far as that defendant is concerned. It would not be just and reasonable to allow that claim to proceed. There was no appeal against the Master's findings on the cause of action against the first defendant. It was therefore accepted that unless the claim should be allowed to remain on foot on the Briggs principle the appeal so far as it affected Glaxo should be dismissed. 10 I turn now to Dr. Graham and Dr. Geddes. It is not desirable to attempt to restate in different words the various formulations used in various decisions about what the plaintiff needs to establish as a prerequisite to obtaining an extension. "Prima facie case" (Briggs) "real case to advance" (Mason P in Dow Corning); "evidence to establish the cause of action exists or will be available at the trial" (Martin v Abbott Australia Pty. Limited [1981] 2 NSWLR 430) may be ways of expressing much the same requirement in different words. Some care needs to be taken when considering these decisions and statements. That is because under s58(2)(b) there is a requirement to show "evidence to establish the cause of action". That requirement does not exist for applications under s60C and 60G of the Act. However, as the Master pointed out, it would be unlikely to be reasonable to grant an extension if no basis for the claim were shown, apart from an unverified pleading. In any event Williams v The Minister, Aboriginal Land Rights (1994) 35 NSWLR 497 appears to hold the requirements do not differ in substance The Master clearly understood the different wording as can be seen from page 18 of her judgment. 11 So far as Drs. Graham and Geddes are concerned the learned Master said at pp 30-32: Like the first defendant, the second and third defendants submit that there is no evidence of a cause of action. In this regard they submit that there is no evidence that the defendants breached their duty of care nor is there evidence of causation or damage. In relation to breach of duty of care, the second and third defendants submit that the plaintiff has not shown by the availability of any evidence that it was inappropriate for Dr Graham to refer her for the myelogram, nor that the myelogram was performed negligently by Dr Geddes. I agree with the second defendant that there is no evidence to show that it was inappropriate for Dr Graham to refer the plaintiff for the myelogram. There was no other diagnostic tool available and a myelogram was preferable to spinal surgery without investigation. Although Dr Blum raises the issue that it was possible that Dr Geddes caused some damage to the nerve root that caused the plaintiff's pain, he says that it would be unusual for that damage to be helped by an operative procedure. He concluded that the plaintiff's operations and treatment were not the result of the myelogram itself. In respect of the allegations concerning failure to warn/advise, the second and third defendants submit that there is no evidence that Dr Graham and Dr Geddes should have advised the plaintiff of alternative procedures. The first and second defendants submit that at best it can be said that the link between myelography and arachnoiditis was purely speculative and a medical practitioner is not in breach of his duty of care if he or she does not warn of speculative risks - see Bonello v Lotzof (Grove J, unreported, 27 September 1997) and Perrin v Cahill (Rolfe J, unreported, 6 July 1995). In 1978 the myelogram was the only procedure available to ascertain if cervical surgery was necessary. The plaintiff has not produced any evidence to show that in 1978 doctors should have warned the plaintiff of the risks of developing arachnoiditis when undergoing a single myelogram. Even one of the plaintiff's medical experts, Dr Blum says that at the time the plaintiff underwent the myelogram no-one knew about the effect of myodil in regard to arachnoiditis. The second and third defendants submit that the plaintiff suffered from most if not all her symptoms before the myelogram was performed on 4 May 1978. There is evidence from Dr Browne (based on a history provided by the plaintiff) that the plaintiff did not experience right leg pain prior to the cervical myelogram. This submission fails. It is my view that the plaintiff has not established any of the particulars of negligence pleaded against the second and third defendants in the statement of claim. She has not demonstrated that she has a cause of action against either the second or third defendants. She has not established that the myelogram was performed negligently nor that she should have been warned of the risks of developing arachnoiditis when undergoing a single myelogram nor that there was an alternative procedure available. It was not pleaded that the third defendant should have aspirated the myodil after the myelogram had been performed. The plaintiff has not established that there is evidence to establish a cause of action against any of the defendants and her application for an extension of time to commence proceedings should be dismissed. 12 With much of this passage there could be no disagreement, particularly so far as Dr. Graham is concerned. There are, however, two matters where I consider the Master has made findings not supported by the material available to her. The first concerns the failure to warn. The Master did not find that suggestion of a link between myelography and arachnoiditis was purely speculative. What she did was to note this as a submission of the medical defendants. She then went on to say that the plaintiff had not adduced any evidence of breach of duty in failure to warn. That is I think, incorrect. There was evidence from which it was reasonable to expect that a case could be made out that there was a material risk of arachnoiditis following myelogram. The Master referred to an article published in the Medical Journal of Australia in 1976 on page 22 of her judgment. She said: The study showed that complications of myelography can still happen if recognised precautions (such as removal of the dye) are not observed. The article continued that it is a general principle in medicine that a certain incidence of complications must be accepted in a procedure provided that incidence is low in relation to the seriousness of the condition, and that the procedure is essential. Because of complications with myodil, water soluble contrast media have been used. These agents, however, produced their own undesired effects and are at present rarely used. In 1976 the authors stated that, despite the considerable morbidity associated with its use, iodophenylundecylate was the best agent available for contrast studies at all levels of the subarachnoid space. It was important for the clinician to appreciate the dangers in its use and to use it only when the investigation was essential. 13 It would, I consider, be possible for a fact finder to come to a conclusion that there was a duty to inform a patient of the risk referred to in this passage. This would, I think, require a far better pleading that the present statement of claim, but that can be cured. 14 Second, the Master said that it was not pleaded that Dr. Geddes should have aspirated the Myodil after the myelogram had been performed. The particulars of negligence, which are stated in the most general terms, as against both the doctors, which could hardly be equally appropriate to the claim against each doctor, include a claim that the myelogram was not carried out in the correct manner or in a proper manner. I think it clear that evidence of failure to aspirate the Myodil could be adduced as been covered by these particulars. 15 It follows from this that I consider the Master's decision was incorrect in finding that evidence was not available to establish a cause of action based on the particulars of negligence pleaded against the doctors. Whether this is called a prima facie case or a real case to advance or is categorised on the basis that there is evidence to establish that the cause of action exists, does not matter. Both matters were significant in the reasoning process. 16 It thus becomes necessary to consider the other matters to be taken into account in the exercise of discretion as to whether or not an extension of the limitation period should be allowed. The Master considered this on the assumption that she was incorrect in her conclusion reached in the passage which I have quoted at length. It is however important to realise, as I have said earlier, that the question whether or not it is just and reasonable to grant an extension operates over the whole of the consideration of the application; that is because it would be extraordinary if it were just and reasonable to grant an extension if there were no evidence that a case might be able to be made out. 17 The Master gave careful consideration to the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 as to the onus borne by the applicant for the extension to satisfy the court that the discretion should be exercised in her favour; particularly to the judgment of McHugh J as to presumptive and actual prejudice; that of Dawson J where he said at page 2: The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. and The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. 18 and to the passage in the joint judgment of Toohey and Gummow JJ at p580: The real question is whether the delay has made the chances of a fair trial unlikely. 19 The learned Master then said at page 36: It is not known whether the second and third defendants have their records or have specific recollections of the advice they gave to the plaintiff. It is also not known whether the first defendant has still retained its records, although, at least one, such as the warning given, remains. In relation to the second and third defendants, of crucial importance is whether Dr Geddes and Dr Graham gave a warning to the plaintiff and if they did, in what terms. It may be that they did give a warning and this is noted on their records. Alternatively their records (including hospital records if available) may be silent on this topic or they may recollect not giving a warning. If there are no records which refer to any warning given, the doctors will be reliant upon their memories. If they cannot remember the plaintiff, they will have to rely on their memories as to what was their normal practice in 1978 in relation to warnings given in relation to myelograms. However there is no evidence of the availability of records of the defendants or of the state of the second and third defendants recollections concerning the treatment by them of the plaintiff. In these circumstances I accept that the second and third defendants would be seriously disadvantaged if a case based on events which occurred 20 years ago is now permitted to be brought. It is my view that the defendant would suffer significant prejudice and their chances of a fair trial are unlikely. 20 When discussing this matter in considering the exercise of discretion it is, I think, proper to say that I am aware of a decision of the Master in a separate judgment as to the exclusion of certain evidence sought to be tendered on behalf of the two doctors. While nothing turned on this in the appeal, and I was told nothing about it, the separate judgment was included in the bundle of documents handed up by counsel for the applicants at the commencement of the hearing which I have marked Exhibit X for reference. When hearing the appeal I did not see this as I was working from the official copy of the judgment on the file, but on reading the material in Exhibit X while considering my judgment, I read this particular decision on evidence. I considered that I should say this, although I cannot see it bears on the matter. The evidence sought to be read was excluded, there was no appeal and as far as I know there was no application for adjournment. Like the Master I must put this out of my mind, although I accept there is a certain artificiality in so doing in this case in view of my subsequent findings. 21 The Master said that as there was no evidence of availability of records or the state of recollection of the doctors concerning the treatment given by them to the plaintiff then they must be seriously disadvantaged if the trial proceeded and it was unlikely that a fair trial could be held. As I understand her judgment the Master on considering this would have come to the conclusion in the absence of anything else that it was not just and reasonable to grant the extension. On this matter I consider that the discretion miscarried. That is because no one other than the doctors could have given evidence of their recollection or non-recollection of treatment of the plaintiff, including their recollection of whether or not any warning was given. The plaintiff could not be required to call the doctors to establish the state of their recollection. The onus on an application for extension could not go so far. Second, I consider that the same applies to records. The doctors would know whether their records remained available; the plaintiff would not. This matter was the subject of some consideration in Sydney City Council v Zegarac (1998) 43 NSWLR 195. This was a matter concerning an application for extension of time under s60E of the Limitation Act, but what was said would be equally relevant to an application s60G. At page 197 Mason P said: Like the other factors listed in s60E(1), para(b) applies "to the extent that [it is] relevant to the circumstances of the case". Persuasive dicta in Brisbane South indicate that it is for the party opposing the application to adduce evidence of facts suggesting particular prejudice if the discretion were exercised in the applicant's favour: see (at 547), per Toohey J and Gummow J citing Cowie v State Electricity Commission (Vic) [1964] VR 788 at 793 and Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474; see also Kirby J (at 566- 567). Failure to adduce such evidence may draw the unfavourable inference that specific prejudice is absent, due to the fact that it is very much in that party's camp to know of the existence, impact and "extent" of such prejudice. and at p240 Powell JA said: although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant. 22 I will not repeat the passage referred to from Brisbane South but the views expressed are quite clear. I do not consider that it could be correct to think that the applicant for extension, in a case such as this, must subpoena the doctors to produce their records, and upon no documents being produced, seek to examine them as to their answer to the subpoena. During the hearing I expressed the view that if the doctors did not give evidence that the records did not exist one could infer that they did. Thus one could infer that no actual prejudice arose from this, although I accept, in accordance with the strong judgment of McHugh J in Brisbane South, that prejudice could be assumed by reason of the delay for the reasons set out in the passage quoted by Mason P in Sydney City Council v Zegarac immediately below the passage which I have already quoted from his judgment. Cases of failure to warn are probably more likely to give rise to presumed prejudice than are cases involving allegations of negligent treatment. 23 In coming to the conclusion she did on this aspect, I consider that the Master made an incorrect statement which must have been based upon the opinion that the plaintiff bore the onus in respect of the medical records as opposed to the ultimate onus to show it was proper to grant the extension. 24 There was a further ground of prejudice put forward by the doctors and considered by the Master. That prejudice was claimed to arise "because the legal test by which they are to be judged is entirely different from the legal test that applied at the time the limitation period expired." Shortly, what is alleged is that in 1978 the test which can be referred to as the Bolam test set out in Bolam v Friern Hospital Management Committee 1 WLR 582 applied when determining whether or not a doctor was negligent whereas at the present time the test is that laid down by the High Court of Australia in Rogers v Whittaker (1992) 175 CLR 479. On this aspect of the case the Master's deliberations are found at pages 38 and 39 of the judgment as follows: According to Rogers v Whittaker the test is now that the law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it (this duty is subject to the therapeutic privilege). The court, not the medical profession determines whether there has been a breach of duty of care. In between Bolam and Rogers v Whittaker were a series of cases which gradually changed the law. In 1988 there was a decision of Justice Cole, Ellis v Wallsend District Hospital (unreported, SC, 16 September 1988) where his Honour indicated that the test was a subjective one and there were South Australian cases going back to 1985 which raised the issue of the applicability of the Bolam test. In Rogers v Whittaker the High Court said: Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information. In relation to warnings associated with risks involved in a proposed medical procedure, there has been a shift in the law from a doctor not being negligent if he acts in accordance with the practice accepted by a responsible body of medical opinion to one where professional medical opinion is taken into account when the court makes the decision as to whether the doctor is obliged to ensure that the relevant material risk in a proposed treatment has been communicated to the patient. Currently there is evidence that in 1978 doctors did not warn of the risks of the possibility of suffering severe arachnoiditis when a patient was undergoing a single myelogram, as that event was considered extremely rare. The change in the law may but does not necessarily mean that the second and third defendants have a higher risks of being found negligent as the court will form its own view as to whether a warning should have been given and if so, what the appropriate warning should have been. 25 It is not quite clear what conclusion the Master arrived at on this matter, but it does seem to be clear that she accepted there was a change in the law which could give rise to prejudice. There are difficulties with this whatever jurisprudential view one has on the role of judges in lawmaking. The duty recognised by the High Court in Rogers v Whittaker, is set out at p490 as follows: The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This statement followed a careful consideration of previous case law; it could not be claimed that it changed the law. It is clear enough as shown in Rogers that the Bolam principle had not been accepted as representing the law in Australia, where lack of appropriate advice was alleged. There is no reason to think that had the action been commenced within the ordinary limitation period the applicable law would have been thought to have differed from the law as now stated by the High Court. Thus insofar as the Master considered there was prejudice arising from a change in the law, I consider she erred in law. 26 It follows from what I have said that the grounds of appeal 1, 2, 3 and 4 have been made out. Unfortunate as it is, having come to this conclusion that the discretion of the Master miscarried, it is necessary for me to exercise the discretion afresh and to determine whether it is just and reasonable to extend the limitation period. I have come to the conclusion that it should be. There is evidence to show that the plaintiff has a real case to make out; there is no evidence to show the doctors will be prejudiced in any specific way if an extension of time is granted. In other words, apart from the obvious fact that memories will have dimmed, there is nothing to suggest that some evidence the doctors would have been able to adduce at an earlier time cannot be adduced now. As I have explained it is not the obligation of the plaintiff to negative any unidentified possible ground of prejudice. I consider an extension of time should be granted, but upon terms. 27 In considering this question it is essential to understand that the Master found that the plaintiff satisfied the requirements of s60I(1)(a)(iii) of the Act, but had not otherwise made out any entitlement for an extension. Thus the Master was satisfied that the plaintiff was unaware, at the end of the relevant limitation period, of the possible connection between her personal injury and the acts or omissions of the doctors, namely the connection between a myelogram using Myodil as the contrast agent, and her subsequent disabilities and it was this only that brought the plaintiff the entitlement to consideration of whether an extension should be granted under s60G of the Act. 28 The statement of claim would seem to me to be a hopeless example of the pleader's art. Leaving aside the first defendant it alleges that Dr. Graham was treating the plaintiff for injuries, Dr. Geddes was engaged (presumably by Dr. Graham) to perform a myelogram on the plaintiff; following a conversation with Dr. Graham the plaintiff went to the surgery of Dr. Geddes where the myelogram procedure was carried out; that Myodil was introduced as a medium; and as a result of the myelogram and/or the introduction of Myodil, the plaintiff suffered loss and damage and that this was caused by negligence of the defendants. There are then set out particulars of negligence of Drs. Graham and Geddes. They are in precisely the same words. Those said to relate to Dr. Graham are marked 'a' to 'f' inclusive and those referrable to Dr. Geddes '(1)' to '(6)' inclusive. I set them out as claims against Dr. Graham: a. Failure to warn the Plaintiff of the risk of injury by the use of Myodil in a cervical myelogram.

f. Failure to ensure that the Plaintiff was fully aware of the risk of injury and the effects of such injury as opposed to the injuries the Plaintiff was suffering from prior to the said cervical myelogram. 29 While I am not regularly in touch with personal injuries pleadings I would be very surprised to think that this statement of claim could be regarded as adequate. One would expect in a matter as serious as this that proper attention would have been given to a clear expression of the plaintiff's claim. It is difficult to know what would be the difference between "correct manner" and "proper manner". There has not been shown to be any possible basis for the claim in 'b', namely "failure to advise the plaintiff of alternative remedies," as on all the evidence the alternative remedies are less desirable than Myodil. Either a myelogram was to be performed with an agent such as Myodil or it was not to be performed. As against Dr. Graham there is not shown to be any possible cause of action in particular of negligence 'c', 'd', or 'e'. It would not be just and reasonable to allow an extension of time for the plaintiff to bring an action based on claims which are not "real". As against Dr. Geddes, the same applies to particular (2) and (4). It is, I think, perfectly clear that a claim for damages based upon negligent advice through failure to warn should be properly pleaded as failure itself does not give rise to any injury. This is a matter for proper pleading and not a matter for particulars. In these circumstances, while I consider that an extension of time under s60G should be allowed to enable the plaintiff to bring a claim based on causes of action and particulars referable to a claim under that Section, I do not think that an order should be made extending the time on the basis of the present document which is why I consider that an extension of time should be granted on terms. 30 It follows from this that I consider the appropriate orders to be the following: 1. Appeal dismissed as against the first defendant.

Thomas v Glaxo Australia

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties

Cases Cited (5)

Cited By (1)