Citation : AVSAR -v- WESTLAND HEALTHCARE LIMITED [2006] WADC 85

Appeal - Application for leave to appeal and cross­appeal against interlocutory orders - Turns on own facts

District Court of Western Australia Act 1969 (WA), s 79(1)(b)

Fatal Accidents Act 1959 (WA)

Law Reform (Miscellaneous Provisions) Act 1941 (WA)

Limitation Act 1935 (WA), s 40

Rules of the Supreme Court 1971 (WA), O 21 r 5, O 70 r 2(4), O 70 r 3(8)

Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

1 PULLIN JA: Before the Court are two appeals, one by the appellant "Westland" against an order made by Judge Sleight in the District Court on 9 June 2006 and the other, a cross-appeal by the respondent (Mrs Avsar) concerning other orders made on the same day. Sleight DCJ's orders are interlocutory orders. Section 79(1)(b) of the District Court of Western Australia Act 1969 (WA) provides that a party to an action who is dissatisfied with a judgment which is not a final judgment may, by leave of the Court of Appeal, appeal to the Court of Appeal. An interlocutory judgment is not a final judgment and therefore leave is necessary. Although there are no rigid or exhaustive criteria which govern such applications, generally speaking it is necessary for an applicant to show that the decision appealed against is attended with sufficient doubt to justify the grant of leave and that substantial injustice would be done if it remained unreversed: Wilson v Metaxas [1989] WAR 185 and Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990. I will deal first with Westland's application for leave to appeal.

2 The respondent ("Mrs Avsar") is the daughter of Antoinette Maria Cowan, who died on 16 February 1996. Mrs Avsar commenced an action in the Supreme Court of Western Australia on 30 January 1997. The plaintiff's claims arose from alleged negligence by Westland in administering an incorrect dosage of insulin to the deceased while the deceased was a patient in the Applecross Nursing Home, which was managed and operated by Westland. The alleged incorrect dosage was said to have been administered on 21 September 1995.

3 In May 1997 the action was transferred to the District Court. Mrs Avsar has at times been represented by solicitors and at other times not. The action when commenced was in the name of Mrs Avsar in her personal capacity. The claim purported to be a claim on behalf of the Estate of the deceased, Mrs Avsar and other family members.

4 The plaintiff has presented numerous versions of a statement of claim or proposed statement of claim. In one of the proposed statements of claim Mrs Avsar included claims for damages against Westland under the Law Reform (Miscellaneous Provisions) Act 1941 (WA) and the Fatal Accidents Act 1959 (WA). At the time Mrs Avsar was not the executor or administrator of the Estate. On 24 August 2004, Acting Principal Registrar Kingsley dismissed an application by Mrs Avsar to file and serve the statement of claim as she then proposed it, but gave leave to file a substituted statement of claim, within 28 days, limited to pleading a claim for damages under the Fatal Accidents Act. The order he made was in the following terms:

"1 The application for leave to file and serve a substituted statement of claim dated June 2004 be dismissed;

2 The plaintiff do have leave to file and serve a substituted statement of claim within 28 days limited to pleading a claim for damages under the Fatal Accidents Act 1959."

5 Mrs Avsar appealed against these orders. The appeal was heard by Judge Chaney. Before the matter came on for hearing before him, Mrs Avsar had obtained a limited grant from the Supreme Court to conduct the proceedings on behalf of the Estate. Judge Chaney in his reasons of 21 April 2005 (Avsar v Westland Healthcare Ltd [2005] WADC 74) held that the grant allowed Mrs Avsar to pursue a claim under the Law Reform (Miscellaneous Provisions) Act on behalf of the Estate.

6 Judge Chaney therefore allowed the appeal against Acting Principal Registrar Kingsley's order, gave leave to file an amended statement of claim and removed the limitation imposed by the Acting Principal Registrar's order requiring the statement of claim to relate only to a claim for damages under the Fatal Accidents Act. It is clear from Judge Chaney's reason for decision, however, that he intended that an amended statement of claim should be limited to claims for damages properly recoverable under the Fatal Accidents Act or the Law Reform (Miscellaneous Provisions) Act. This is clear from [46] of his reasons where he said:

"In the circumstances, if the statement of claim filed on 1 July 1999 remains the applicable pleading, then par 19(2), and par 20 should be struck out, with leave to file an amended pleading so as to claim those items properly recoverable under either the Fatal Accidents Act or the Law Reform (Miscellaneous Provisions) Act."

"The claims now sought to be propounded by the plaintiff in her document of 17 June 2004 are summarised above. The pleading names as plaintiff her four children as well as herself as administrator of the estate. Orders joining those parties as plaintiff have not been made. As I have indicated in relation to the present statement of claim, the claims by Mrs Avsar personally under the Law Reform (Miscellaneous Provisions) Act relating to her inability to operate her meat and skin export business, and the claim for post traumatic stress disorder and other physical and mental injuries suffered by Mrs Avsar are clearly not sustainable. Similarly, the claims brought in respect of each child for personal injury, loss of earning capacity and damages for loss of enjoyment of life suffered by each of those children and said to be claimed pursuant to the Law Reform (Miscellaneous Provisions) Act are unsustainable under that legislation, or otherwise. The proposed statement of claim is in a form which would not permit the simple excision of the unsustainable portions of the claim, and leave to amend the pleading in the terms sought should not be granted."

8 Mrs Avsar also applied to Judge Chaney for an order that her capacity as plaintiff be changed to that of administrator of the Estate of the deceased instead of the plaintiff in her personal capacity. His Honour made such an order in the following terms:

"On the plaintiff's summons dated 4 July 2004, ... Jennifer Patricia Avsar as administrator of the estate of Antoinette Maria Cowan be substituted as plaintiff in the action;"

9 Mrs Avsar then filed a substituted statement of claim which was dated 15 October 2005. Westland applied to strike it out. Judge Sleight heard this application and said, in [24] - [27] of his reasons for decision (Avsar v Westland Healthcare Ltd [2006] WADC 95):

"24 This purported substituted statement of claim goes far beyond simply pleading damages properly claimable under the Fatal Accidents Act 1959 and the Law Reform (Miscellaneous Provisions) Act 1941, but seeks to add claims on behalf of the plaintiff (in her personal capacity) and for her four children being the following:

Sean Avsar (born 5 March 1974) and now aged 32 years.

Selim Avsar (born 28 December 1978) and now aged 27 years.

Yasmin Avsar (born 6 September 1982) and now aged 23 years.

Yusuf Avsar (born 22 September 1993) and now aged 12 years.

25 The additional claims which the plaintiff seeks to be made by adding her four children to the action may be described as coming within two categories -

1. Damages for loss of financial support from the deceased.

2. Damages for personal injury in the form of mental injury arising from the deceased's condition immediately before her death and her subsequent death.

26 The claims under the first category are already covered by the claims by the plaintiff under the Fatal Accidents Act 1959 which include claims for loss of financial dependency on behalf of those persons who qualify under the Fatal Accidents Act 1959, which includes the grandchildren of the deceased.

27 The claims under the second category raise different issues. The plaintiff's oral submission before me on the hearing of these applications was that the additional plaintiffs could be joined under s 9A of the Fatal Accidents Act 1959, and once they were joined as plaintiffs their claims could be expanded beyond the Fatal Accidents Act 1959 to include claims for personal injuries. This submission is not valid. Section 9A of the Fatal Accidents Act 1959 does not provide for the adding of plaintiffs but only the adding of persons on whose behalf a claim can be made by the existing plaintiff. Further, it gives no right to pursue claims beyond the Fatal Accidents Act 1959.

10 His Honour dealt with the claims by the grandchildren and, having concluded that he was not prepared to allow any of them to be joined as a party to the proceedings, then said in [87]:

"I will grant the plaintiff 28 days in which to file an amended statement of claim. The amendments are to be confined to the following:

(a) A claim for damages under the Fatal Accidents Act 1959 and the Law Reform (Miscellaneous Provisions) Act 1941;

(b) A claim for damages for personal injuries (in the form of a psychiatric illness) for the plaintiff only."

"4. The plaintiff have leave to file an amended statement of claim within 28 days of the date of this order, subject to the following conditions:

4.1 a) the amended statement of claim is to be in the form of an amendment to the statement of claim filed by the plaintiff dated the 1 July 1999

b) the amended statement of claim is to comply with Order 21 rule 9 of the Supreme Court Rules

4.2 The amendments are to be confined to the following:

a) A claim for damages under the Fatal Accidents Act 1959 and the Law Reform (Miscellaneous Provisions) Act;

b) A claim for damages of personal injuries (in the form of a psychiatric illness) for the plaintiff only;

4.3 The amended pleading is to be settled and signed by a solicitor holding a current practice certificate."

12 Westland appeals against par 4.2(b) of the order on the following grounds:

"1 The learned primary judge erred in law in allowing the Respondent leave to amend her statement of claim to plead a claim for damages for personal injuries in the form of a psychiatric illness for the Respondent personally, when the effect of doing so was to allow an abuse of process and the introduction of material the substance of which had been struck out or in respect of which leave to amend had previously been refused.

...

2 The learned primary judge further erred in law in allowing the Respondent leave to amend her statement of claim to plead a claim for damages for personal injuries in the form of a psychiatric illness for the Respondent personally, because this would add an additional time barred cause of action."

13 In my opinion, the order authorising amendments to be made to include a claim by Mrs Avsar for damages for personal injuries (in the form of a psychiatric illness) cannot be sustained because Mrs Avsar is only a party in her capacity as executrix of the Estate (because of the order made by Judge Chaney). Mrs Avsar did not seek an order from Judge Sleight for an amendment to the capacity in which she sued, and Judge Sleight did not give consideration to whether Mrs Avsar could or should be joined as a party in her personal capacity, which would have required a consideration of O 21 r 5 of the Rules of the Supreme Court 1971 (WA) and limitation issues. His Honour erred then in making the order allowing an amendment to the statement of claim purporting to allow Mrs Avsar in her personal capacity to claim damages for psychiatric illness suffered by her as a result of her mother's death. No such amendment should have been allowed because Mrs Avsar in her personal capacity was not a party to the proceedings. Subject only to a consideration of the submissions made by Mrs Avsar, leave to appeal against that part of the order should be granted. To allow the trial to be protracted by the evidence in relation to a claim which cannot be sustained will lead to substantial injustice if the order is not reversed.

14 The written submissions filed by Mrs Avsar read:

"[Mrs Avsar] has never made any application for an order that she (suing in her personal capacity) be substituted as plaintiff to only act for the deceased's estate in this action; as it was an obvious [sic] to all concerned for over a period of nine years and [sic] an accepted fact that the plaintiff has always sued in her personal capacity; the intention was that, the appointed administratrix be substituted as the second plaintiff in the action, to enable the first plaintiff (whose action was on foot since 1997, and who also happens to be the deceased administratrix appointed by the Probate Division since 2003 for the sole purpose to be plaintiff in the District Court) to ALSO act as the additional plaintiff in the action for and on behalf of the deceased's estate."

15 The order made by Chaney DCJ substituting Mrs Avsar in her capacity as administratrix of the Estate in place of Mrs Avsar in her personal capacity is unambiguous and has not been the subject of any appeal. I would therefore reject Mrs Avsar's argument and I would uphold ground 1.

16 Ground 2 of the appeal is an additional basis for granting leave to appeal and upholding the appeal. If Mrs Avsar had made an application to be joined as a party so as to bring a claim in her personal capacity for damages of the sort contemplated by the decision in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317, it would have been an attempt to add a time barred cause of action. If there is doubt about whether a limitation period has expired, the appropriate course is to allow the issue to be dealt with at trial, but in this case there is no question about when the alleged cause of action arose and there is no doubt that it is statute barred. Mrs Avsar made it plain in her submissions to this Court that the damage allegedly suffered by herself (and the four grandchildren) was first suffered in 1995.

17 I would therefore grant the appellant leave to appeal, uphold grounds 1 and 2 and allow the appeal. The order made by Judge Sleight should be varied to delete par 4.2(b).

18 Mrs Avsar also applied to this Court to amend the title to these proceedings to show her as a party in her personal capacity. This Court has no authority to make such an order as though it were the District Court entertaining such an application in the exercise of its jurisdiction. That application should be dismissed.

19 Mrs Avsar also cross-appealed and requires leave to do so. She seeks leave to appeal against the order made by Judge Sleight that "the application by the [plaintiff] to join Sean Avsar, Selim Avsar, Yasmin Avsar and Yusuf Avsar as plaintiffs in these proceedings be and is hereby dismissed". Mrs Avsar also seeks leave to appeal against the dismissal of Mrs Avsar's summons in which she applied to add two defendants, namely the Director of Nursing, Helen Huband, and Registered Nurse Fiona Munro. Finally, Mrs Avsar also seeks leave to appeal against an order made by Judge Sleight that there be a trial on the preliminary issue of negligence and causation, that is, whether the deceased's death arose as a result of any negligence of the defendant.

20 I will refer first to the application for leave to appeal concerning the refusal to allow the joinder of the four grandchildren. His Honour dealt separately with each of the proposed plaintiffs as follows:

Mrs Avsar argued that Sean Avsar was "insane", and that by reason of s 40 of the Limitation Act 1935 (WA) the limitation period for a claim by him had not expired. His Honour accepted that that may be so. However, his Honour set out the part of the proposed statement of claim concerning Sean and noted in effect that it did not plead material facts to support the existence of a duty of care or that Sean's mental condition was caused by the death of the deceased. Further, he held that there had been non-compliance with O 70 r 3(8) of the Rules of the Supreme Court and, as a result, Sean should not be joined as a plaintiff. In my opinion, these reasons reveal no error.

Selim was 17 years old at the date of death of the deceased and turned 18 on 28 December 1996. His Honour noted that the limitation period for any cause of action in tort therefore expired on 28 December 2002. His Honour held that to permit a claim in those circumstances would amount to an abuse of process. In my opinion, this reveals no error.

Yasmin was 13 years old at the time of the death of the deceased. She turned 18 on 6 December 2000 and therefore the limitation period had not expired when his Honour heard the application. His Honour said, however, that the proposed claim as pleaded had a number of difficulties. His Honour noted that the claim for personal injuries was for "chronic shock, stress and trauma and ongoing inconvenient stress and trauma after the death of the deceased" but that no medical evidence had been lodged in support of the application and therefore no medical evidence that Yasmin suffered a recognised psychiatric illness. His Honour referred to Tame v New South Wales (supra) (Gleeson CJ at [7], Gaudron J at [44] and Gummow and Kirby JJ at [193] - [197]) where it was made plain that to recover damages for mental injury, the plaintiff must have suffered a recognised psychiatric illness, and that a person is not liable for distress, alarm, fear, anxiety, annoyance or despondency. His Honour also noted that there was no proper pleading of duty of care, breach of duty or causation. His Honour said that, as the action had been in process since 1997, it would be inappropriate to join an additional plaintiff unless there was evidence before the court by affidavit material and an appropriate draft pleading to establish that the proposed plaintiff's claim had some merit. His Honour held that in view of the deficiencies in the proposed claim and the lack of evidence, he was not prepared to allow her to be joined as a plaintiff. In my opinion, this reveals no error.

Yusuf was still an infant at the time Judge Sleight dealt with the application. He repeated his observations concerning the claim by Yasmin Avsar that on the face of it the pleading did not disclose a cause of action for personal injury. His Honour also recorded the fact that there had been a failure to comply with O 70. His Honour said that he was of the view that the appointment of a solicitor for an infant plaintiff in the proceedings was an important safeguard which must be insisted upon. His Honour also noted that a Judge had a discretion to exclude the requirement of the appointment of a next friend for an infant under O 70 r 2(4) of the Rules of the Supreme Court but that this was not the sort of case where such a discretion should be exercised and, as a result, his Honour held that he would not allow the application to join Yusuf Avsar. In my opinion this reveals no error.

21 Next, I turn to that part of the cross-appeal which complains about the refusal of Judge Sleight to join the Director of Nursing and a nurse as additional defendants. His Honour pointed out that no explanation had been given as to why those two persons were not joined earlier, that prima facie any claims by the plaintiff against those two persons were statute barred and, further, that the non-joinder of the two defendants did not appear to defeat the plaintiff's existing claim. His Honour said that the defendant could be liable for negligence of those persons under the principles of vicarious liability. His Honour said that in fact this was pleaded in par 16 of the statement of claim dated 1 July 1999. His Honour concluded that it would be an abuse of process to allow the joinder of the two additional defendants and he dismissed the application. In my opinion, this reveals no error.

22 The final aspect of the cross-appeal is against an order made for the trial of the preliminary issue of negligence and causation.

"89 On the last occasion I raised the possibility of a trial on the issue of whether the death of the deceased occurred due to the negligence of the defendant (this would include a vicarious liability for servants and agents) as a separate and preliminary issue.

90 The plaintiff opposes a separate hearing of this issue and the defendant supports it.

91 The court has power to make such an order under O 32 r 4 of the Supreme Court Rules. A separate trial of an issue is only appropriate in clear and simple cases where a simple question can be isolated from other questions. It is often not appropriate to do so where there are overlapping credibility issues (ie, credibility issues on both liability and damages). Also it must be kept in mind that separating issues can lead to multiple appeals.

92 However, again the history of this matter requires that some drastic steps be taken.

93 If the separate issue is decided in favour of the plaintiff, then this increases the chances of a mediated settlement. Further, if the plaintiff is successful it may improve the chances of the plaintiff obtaining legal representation for the balance of the claim as a solicitor is more likely to be willing to take on the matter when the negligence of the defendant has been established. However, if the plaintiff is unsuccessful, then this defeats her claims regardless of the loss and damages suffered by her. A prerequisite to any claim by the plaintiff is the establishment of the fact that the death of the deceased occurred due to the negligence of the defendants or its servants and agents.

94 Accordingly, I conclude that in view of the long history of this matter it is desirable, out of fairness to the parties, to try this preliminary issue separately (see Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at 18)."

24 In my opinion, these reasons reveal that his Honour was alert to the potential dangers of a separate trial of issues. Mrs Avsar complains that separate trials will be more costly. It was clear, however, from statements made by Mrs Avsar from the Bar table that she is having difficulty funding the litigation, and she does not seem to realise that a trial of the preliminary issue will be less expense than a full trial and, as his Honour said, if the separate issue is decided in favour of the plaintiff, this increases the chance of a settlement and may improve the chances of Mrs Avsar obtaining legal representation for the assessment of damages. If Mrs Avsar is not represented in relation to the damages issue, she may fail to prove all of the plaintiff's entitlements. In my opinion, his Honour was not in error in ordering the trial of the preliminary issue.

25 As a result of the foregoing, I would refuse leave to Mrs Avsar to cross-appeal.