Tran v Au-Yong; Tran v Au

[2008] NSWSC 396

Supreme Court of NSW|2008-04-21

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2008-04-21

Catchwords

EXTENSIONS of limitation period - ss 60C & 60E

Source

Original judgment source is linked above.

Catchwords

EXTENSIONS of limitation period - ss 60C & 60E

Judgment (38 paragraphs)

[1]

Background 7 The plaintiff was born on 13 January 1964 in Vietnam. His is one of eight siblings, six of whom reside in Sydney, one resides in Vietnam and one resides in the United States of America. 8 In November 1979 the plaintiff and his family immigrated to Australia and established themselves in Sydney. In about 1982 the plaintiff became an Australian citizen. He is married. 9 In 1992 the plaintiff consulted a solicitor and commenced an unlitigated claim against the manager of a strata unit. He had walked into a transparent glass door and suffered injury to his face. His then girlfriend took him to a solicitor. He does not recall that he was advised in relation to any limitation period in which he had to commence proceedings. He received $15,000 by way of settlement. In 1993, the plaintiff was aware that his youngest brother had commenced a court case for personal injury (t 42.50). 10 Prior to the assault the plaintiff says that he was fit and healthy, had no problems with his vision and was not on any medication.

[2]

The assault 11 On 5 September 1999 at about 11.30 pm, the plaintiff was driving a taxi when his was robbed and beaten. He was hit around his head. He may have lost consciousness or blacked out for a few seconds. On the following day, he reported the incident to the police at Auburn Police Station. 12 Between 6 September 1999 and 27 October 1999, the plaintiff at various times consulted Drs Rosalind Au-Yong, Nicholas Doong, and Kenneth Au.

[3]

The attendance at Royal Prince Alfred hospital on 27 October 1999 13 On 27 October 1999 at 11.23 am the plaintiff attended the emergency department of Royal Prince Alfred hospital (the hospital). According to the hospital records the plaintiff was triaged nine minutes after arrival and assigned a rating of 5 (least urgent). Ms Judith Dixon the Senior Unit Manager in the Emergency Department saw the plaintiff in triage. She says that without the benefit of the emergency department case history notes for Mr Tran, she does not have any independent recollection of him at all. Even with the benefit of having read the case history notes, she has no actual recollection of seeing Mr Tran on 27 October 1999 or attending on him in the emergency department. She has read the medical records of Mr Tran and noted that she had made entries in the records and confirmed that the entries that she made and relied on those entries as to what had occurred. 14 In the hospital records, under the heading "nursing assessment" reads "Assaulted two months ago. Continuing headaches. Has had two CT scans. Last 25/10. Assaulted whilst driving taxi no counselling provided." Ms Dixon confirmed that her signature appeared next to the entry. 15 Under the heading "clinical assessment" Ms Dixon wrote additional information that states, "LMO (Local medical officer) contacted Dr Au. Dr Lo neurology appt. Mr Tran reassessed has two CT scans that are normal. His LMO Dr Au had made neurology at appt for 4/11/99. Counselling being organised. Will attend LMO if further problems." A print out shows that the plaintiff left the hospital at noon and his departure status was classified as "departed. Did not wait (DNW)." There is another entry under the heading "primary diagnosis" also stating that Mr Tran did not wait. The author of this entry is not known. 16 On 1 November 1999 Mr Tran consulted Dr Au who referred him to see a neurologist, Dr Jeremy, later that day. Dr Jeremy arranged for Mr Tran to be admitted to Westmead hospital the following day. On 2 November 1999 an urgent CT brain scan was performed and revealed there was a bleed in the plaintiff's brain. 17 On 2 November 1999, an urgent neurosurgical evacuation of the subdural haematoma was performed. After the operation the plaintiff became aware that the vision in his left eye was substantially reduced and that he had reduced hearing and tinnitus in his left ear. Subsequent craniotomy revealed increased intracranial pressure. After the operation the plaintiff's headaches, dizziness and nausea went away. The loss of vision in the left eye persisted despite surgical and other treatment and was considered to be permanent. Mr Tran also had an increasing impairment of vision in his right eye.

[7]

The second proceedings 25 By statement of claim filed 4 September 2007, the plaintiff pleads that on about 25 October 1999 until 1 November 1999 he consulted Dr Au for medical services in relation to his then symptoms and health. 26 On 25 October 1999 the plaintiff presented with symptoms and complaints including chronic severe headaches, dizziness, nausea, tinnitus, deterioration in vision and difficulty sleeping in the context of his sustaining a head injury in an assault two months prior. On 1 November 1999 the plaintiff presented with symptoms and complaints including severe nausea and vomiting, increased levels of headache and dizziness and symptoms indicative of papilloedema. 27 The plaintiff alleges that in proving the medical services Dr Au failed to correctly diagnose his condition, failed to carry out any or adequate examination and investigation and failed to refer him to a hospital, clinic or specialist for further examination, investigation and treatment of his then symptoms and health. 28 The particulars of negligence are that Dr Au firstly, failed to correctly diagnose the plaintiff's condition; secondly, failed to carry out any or adequate investigations and examination of the plaintiff's then symptoms and health as to lead to the diagnosis of the plaintiff's condition; thirdly, failed to refer the plaintiff to a hospital, clinic or other more specialist practitioner to undergo further investigations; fourthly, failed to refer the plaintiff to a hospital, clinic or other more specialist practitioner to obtain immediate and earlier medical services to correctly diagnose the plaintiff's medical condition; fifthly, failed to treat the plaintiff adequately or at all; and sixthly, failed to exercise reasonable care in the provision of the medical services. 29 On about 2 November 1999, the plaintiff was diagnosed with subdural haematoma and he underwent a burr hole drainage of the subdural haematoma. 30 As against the defendants in both proceedings, the plaintiff alleges that as a result of the failure to properly diagnose his condition it was left untreated and he suffered deterioration in his vision. For the purposes of this application, there are expert reports of Drs Fisher and Raftos which provide support for the plaintiff's cliam that these doctors and the hospital advice and/or treatment was negligent. The plaintiff has a loss of vision in his left eye of 100 percent and loss of 60 percent of vision in his right eye.

[20]

The former solicitors - Brydens 39 In February 2000, the plaintiff says that he had an initial consultation with a Caucasian male solicitor together with an interpreter at Brydens solicitors. The plaintiff says that aside from when he attended court, he had only one face to face (the conference) with a solicitor and received several phone calls from the firm's receptionist who spoke to him in his language. There are no solicitor's file notes of the conference. The plaintiff says that the conference was of one hour's duration. The plaintiff deposed that he recalled that at that conference he told the solicitor about the damage to his eyesight, the loss of his vision, the circumstances of the assault and about the different doctors that he had seen before his operation at Westmead hospital. He recalled telling the solicitor about the doctors who had treated him and the operation. The plaintiff gave evidence that he could not remember if he told the solicitor that he had been to the emergency department of the hospital. 40 The plaintiff says he relied on the solicitor to bring a claim in respect of what had happened to him. He says that he told the solicitor all the relevant information and he thought Brydens would take legal action on his behalf against the relevant party. The plaintiff says that he told Brydens he had eyesight problems, headache, a tingling in his ears and that these were the problems after the operation. He says that he thought Brydens would know how to handle all the legal issues on his behalf. 41 The plaintiff, in cross examination, stated that he had no idea as against whom he might take legal action. He did not know about the possibility of taking action against the taxi company, nor the person who assaulted him, nor the doctors or the hospital. At no stage did he ask his solicitors against whom he might bring an action. He gave evidence that he did not know and did not care who the solicitors sued so long as they won the case. 42 Later during cross examination, the plaintiff said that he thought the solicitor might take legal action against the taxi company, against the doctors, against the insurance. Anything was a possibility and they were possibilities. He says that from the beginning to the end it was never discussed which party was going to be sued. However, when the plaintiff was shown letters from Brydens referring to a possible victim's injury claim, he conceded that there was a possibility that at the initial consultation the solicitor may possibly have discussed victim's injury compensation. The plaintiff said that he did not mention to Brydens that he was upset with the doctors and those types of things because he thought Brydens would have an idea how to take care of his case and that if Brydens were acting for him in that court case then he would be fine (t 21). 43 By letter dated 29 March 2000, Brydens wrote to the plaintiff confirming instructions to act on his behalf and advising that the plaintiff had potential rights pursuant to the Victims Compensation Act 1996 and possibly the Workers Compensation Act 1987. Again, by letter dated 14 April 2000, the solicitors wrote to the plaintiff advising that the plaintiff might be able to bring a claim for victim's compensation for any losses, which were not covered by the Workers Compensation Act. In 2002 the plaintiff's workers compensation claim was settled. 44 Between 2002 and 2006, a period of four years, the plaintiff did not seek any further legal advice. In 2007, the plaintiff's youngest brother suggested that he consult another solicitor and provided him with a list of solicitors.

[21]

The current solicitor Ms Lisa Powell 45 On 21 March 2007, the plaintiff attended an initial conference with his current solicitor Ms Powell. This solicitor obtained initial instructions and ascertained that Mr Tran had been involved in an assault on 5 September 1999 and that he had consulted a number of medical practitioners at Royal Prince Alfred and Westmead hospitals. 46 Ms Powell understood, at that stage, that those consultations had taken place in the period from about 6 September 1999 to 24 April 2000. She also understood that Mr Tran was then suffering from significant loss of vision in both eyes, but that the left eye was much worse than the right. She ascertained that Mr Tran's former solicitor had pursued a claim for workers compensation entitlements pursuant to the relevant statutory scheme. She formed the view that the medical treatment provided to the plaintiff warranted investigation as to whether that medical treatment had been negligent and whether Mr Tran might have a claim against the medical practitioners and the hospital in respect of his current condition. 47 In Ms Powell's initial conference with Mr Tran she asked Mr Tran if his former solicitor had discussed the quality of the medical treatment provided by the medical practitioners and the hospital. Mr Tran advised Ms Powell to the effect "I have always blamed the Doctors and the Hospital for my situation…I told the Solicitors about that and I left it for them to look after it." 48 However, during cross examination the plaintiff gave evidence that was inconsistent and at odds with the statement of Ms Powell referred to above. The plaintiff gave evidence that after the operation he felt very upset because he thought that the doctors should have advised him to go for a CT scan once he had a headache. The plaintiff agreed that after the CT scan and the operation (in November 1999) he thought that if the doctors had sorted out his problem a bit earlier he could have avoided having his visual problems and his eyesight would be okay (t 10.3). At (t 10.5-26) the following exchange took place: "Q. Now, when you went to see Ms Powell you were still feeling angry about the doctors, weren't you? A. I was very upset, yes.

[26]

Q. That is the way you had felt all the time since late 1999? A. Yes." 49 The plaintiff was asked that when he went to see his former solicitors, Brydens, whether he felt anger towards the doctors. He was asked this question in various forms seven times and each time he failed to give a responsive answer. Sometimes there was a long pause but no answer. This question was the only one which elicited the long pauses. Eventually he said that when he saw Brydens he did not feel unhappy (t 11.29) and when asked "So this is the situation: in late 1999, having been through the scan, the operation, the improvement in the symptoms and having felt upset with the doctors, you go to Brydens and you just say you no longer feel upset. Is that right?" The plaintiff replied, "Yes" (t 12.15-19). This answer is implausible. It was then that the plaintiff agreed that he was trying to argue his case as opposed to telling the Court the truth. 50 Essentially, what the plaintiff is saying is that he relied on his solicitors to handle all the issues on his behalf and that he did not know and did not care who his solicitors sued so long as they won the case. He says that he never discussed with the former solicitors which party was going to be sued. 51 While I accept the plaintiff has memory problems and, in truth, may not remember whether or not he told his solicitors about being upset with the medical advice and treatment he received so far as his eyesight was concerned, it is my view that by not caring as to who was being sued demonstrates a remarkable lack of diligence. If, as I have found, the plaintiff always blamed the doctors and hospital for the damage to his eyesight, he had an obligation to ensure that he told his solicitors about it. Solicitors cannot act in a vacuum. They act on instructions from the client. Although the plaintiff has continued to be upset about the treatment he received from the doctors and hospital, it took a further four years before he did anything about it. 52 In light of the conflicting and unreliable evidence on this topic, I cannot determine whether or not he told his former solicitors that he blamed the doctors. His evidence on this topic is most unreliable. However, I do find that shortly after the operation the plaintiff has always blamed the doctors and hospital for not requesting a CT scan earlier. Since 2000, the plaintiff has known that if a CT scan had been done earlier his eyesight would have been all right. I do not accept the plaintiff's evidence that for the period that the plaintiff was consulting Brydens his upset about the doctors and hospital completely dissipated only to be reactivated after 2002.

[27]

Extent to which delay caused prejudice - s 60E(b) 53 There is no evidence that had the plaintiff commenced the proceedings within the limitation period that any evidence would have been lost. The doctors' notes and hospital records are still available. The doctors and the triage nurse at the hospital are also available to give evidence. 54 It is now over eight years since the cause of action arose. I accept that there will be presumptive prejudice of the type referred to in R v Wingo (Unreported, WACCA, 2 May 1990) (which was referred to with approval, by McHugh J, in Brisbane South Regional Health Authority v Taylor). Dr Raftos did not think a nurse was capable of assessing a patient, diagnosing the cause of the headache and working out whether they needed to be assessed in hospital or to make an appointment in several days time without doing a full neurological examination and performing a CT scan. Dr Raftos, a senior specialist in emergency medicine, gave evidence that the apparent agreement, that the plaintiff went to see his local doctor on 4 November 1999, was inappropriate. 55 As previously stated Ms Dixon, the employee of the hospital who interviewed the plaintiff and took notes, no longer has any independent recollection of the plaintiff. She is a critical witness. To some extent she would be able, at trial should there be one, to rely upon her usual practice as it was in 1999. Dr Raftos says that if the plaintiff decided to leave without seeing the doctor, he should have been cautioned to the effect "you have a serious headache, it might be caused by a condition which may cause you to die within 24 hours. If you leave you run the risk" and a notation that this specific warning was given should have been written in the hospital notes. However, in the absence of a specific advice in the notes, Ms Dixon's recollection becomes very important to the hospital's case. 56 While on the topic of records, the doctors' medical records are available. There are medical records used in the plaintiff's workers compensation proceedings as to the state of his eyesight. The doctors and the triage sister are available to give evidence. 57 If the plaintiff succeeds in establishing breach of duty against the defendants, each defendant would only be liable for the damages caused by him or it. This would involve a consideration of the degree to which the vision could have been salvaged as at the time the plaintiff saw the individual defendant and at the time that he should have undergone a CT scan. Another complication is the apparent failure of the plaintiff to undergo a CT ordered on 1 October 1999. If the damage were permanent at a time before either or each of the defendants became involved, the plaintiff's case would fail, as there would be no damages on a visual loss awarded against one or more defendant. 58 There is very little reference to the plaintiff complaining of visual difficulty in the doctors' notes. The plaintiff's evidence is inconsistent and unreliable. At one point, the plaintiff says the visual problems commenced several weeks before the operation, then he says two to three weeks before the operation, then he says just before the operation. Dr Raftos says that without a clear chronology of the development of the visual problems, in order for him to decide when the visual problems became irreversible he could only make a generalisation (t 36).

Tran v Au-Yong; Tran v Au

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Catchwords

Judgment (38 paragraphs)

Cases Cited (10)