Dempsey v Hack [2004] QDC 362

DISTRICT COURT OF QUEENSLAND CITATION: Dempsey v Hack [2004] QDC 362 PARTIES: PAUL ANTHONY DEMPSEY Plaintiff And JOHN MICHAEL HACK Defendant FILE NO/S: Claim No 2148/02 DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: 15 September 2004 DELIVERED AT: Brisbane HEARING DATE: 23 August 2004; written submissions 8 September 2004 JUDGE: Skoien SJDC ORDER: Application dismissed CATCHWORDS: Extension of time for service of claim COUNSEL: Mr GW Diehm for the applicant defendant Mr A Morris QC, with him Mr A McLean-Williams for the respondent plaintiff SOLICITORS: Flower & Hart for the applicant defendant Londy Lawyers for the respondent plaintiff [1] This is an application under rule 16(d) of the Uniform Civil Procedure Rules (“UCPR”) by the defendant, Dr Hack, to set aside an order made by the Registrar of the Court on 21 November 2003. The order of the Registrar renewed for twelve months from 31 May 2003 a claim made in this Court by Mr Dempsey on 31 May 2003, for damages for the alleged negligence of Dr Hack. Dr Hack also seeks a consequential order that service of the claim on him be set aside (rule 16(f)). -- 1 of 16 -- 2 Alleged Facts [2] Mr Dempsey is a solicitor practising in Townsville, experienced in personal injury litigation. Dr Hack practices in Townsville as a general surgeon. [3] On about 1 June 1999 Mr Dempsey consulted Dr Hack about acute pain he was experiencing in the region of his anus and rectum. Clinical examination was attempted but proved too painful to be concluded and Dr Hack said that an examination under anaesthetic was necessary. While Mr Dempsey’s affidavit does not descend into particularity, I infer that Dr Hack gave him to understand that the procedure was routine, and that no warning of possible adverse effects was given. [4] The procedure took place at the Mater Hospital in Townsville in the afternoon of 8 June 1999. There is some dispute whether it was a colonoscopy or a sigmoidoscopy. On recovering consciousness in the recovery room Mr Dempsey felt ill and was distressed to find that his genitalia were greatly swollen. He was admitted to the hospital overnight and Dr Hack visited him and examined him. He told Mr Dempsey that all was well and that he would be able to go home next day. He received an intravenous drip that night. [5] The next day Dr Hack saw Mr Dempsey and repeated that all was well but that he would not be discharged the following day. In fact he was not discharged for some days during which time his genitalia remained badly swollen, his voice and hearing deteriorated, his abdomen bloated markedly and his skin produced a strange crackling sound when touched. -- 2 of 16 -- 3 [6] Dr Hack saw Mr Dempsey daily over the next few days, each time telling him that his condition was good, was improving and that he would be discharged the next day. However on or about 12 June 1999 Mr Dempsey was seen, not by Dr Hack, but by Dr Hicks who said that he was one of the senior surgeons at the hospital and was taking over the supervision of Mr Dempsey. He said that Mr Dempsey had peritonitis, emphysema, was on a high dose of antibiotic and would have to remain in hospital. [7] Thereafter, Dr Hack did not again visit Mr Dempsey and all visits were from Dr Hicks. Over a few days his condition improved and he was discharged for a day but, because he felt unwell, he re-admitted himself to hospital where he stayed for a further four days. His condition improved during that time and he was discharged. [8] After final discharge, Mr Dempsey still felt unwell and began to suffer from bowel incontinence (occasionally soiling himself before he could get to the lavatory) from faecal leaking and from frequent flatulence. This condition has continued, with occasional relatively symptom-free days, but in general has worsened. His belief, based on advice from three different colo-rectal surgeons is that Dr Hack’s treatment of him under anaesthetic was inappropriate, negligent, and has needlessly caused permanent disability. I am unaware just when this advice was given to him, but it seems clear that it was before mid 2002. [9] Dr Hack rendered his account to Mr Dempsey in the sum of $73.15 in response to which Mr Dempsey wrote on 27 July 1999 saying: “In the circumstances, because of your negligence, I think you should pull it.” -- 3 of 16 -- 4 So Mr Dempsey did not pay the account and Dr Hack has never sought to pursue the matter. [10] As an experienced litigation solicitor, Mr Dempsey well knew that any proceedings for personal injuries against Dr Hack would have to be commenced by 8 June 2002 (Limitation of Actions Act 1974, s.11). He was however reluctant to do that because, he swears: “(a) I was concerned about the professional time this would take and the disruption it would cause to my life; (b) I was (and remain) very embarrassed about the nature of the injury; (c) I was overwhelmed by other problems and issues I was then facing, which drew my attention away from the possibility of a claim, including: (i) My wife’s motor vehicle accident and the personal injuries she was suffering as a result, and treatment that she was receiving; (ii) Financial pressure and pressures with my busy legal practice; and (iii) A serious complication that had arisen out of an operation on my right leg, which had caused deep vein thrombosis (DVT) and a pulmonary embolism, and cardiac difficulties that persist to this day; (d) Most importantly, I was hoping that the symptoms would go away, and believed that if this occurred, it would not be worth pursuing the court action.” [11] To protect his rights he retained solicitors and counsel who settled a claim and statement of claim which was filed on 31 May 2002, that is, within time. However, he instructed his solicitors not to serve Dr Hack, in his affidavit giving as his reasons: “(46) Having practiced as a solicitor specialising in personal injuries matters for many years, I was fully aware that a court case against the Defendant would be a difficult thing for my wife and I to endure. I knew that litigation is mentally draining, expensive, time consuming and stressful. Further, having regard to the fact I am a prominent -- 4 of 16 -- 5 practitioner in personal injury litigation in the State of Queensland, I was anxious not to make a claim that might be regarded by my fellow practitioners, or by the Court, as unnecessary or frivolous. These were important factors that, in addition to the matters outlined in paragraph 38 of this affidavit, caused me not to want to proceed with the court action against the Defendant unless it was absolutely necessary to do so. (47) Another important reason why I did not give (my solicitors) instructions to serve the proceedings is that I was acutely embarrassed about the nature of my injuries. Indeed, making my flatulence and faecal incontinence a matter of public record was something I wanted to avoid, unless it was absolutely necessary to do so. (48) In 1996 my wife was involved in a serious car accident. The accident occurred near my home in Townsville when my wife was driving my two daughters to school. The vehicle she was travelling in was struck at the rear end by a fully-laden semi-trailer truck which was travelling at high speed. (49) As a result of the accident, my wife had three prolapsed discs in her back, spine and neck. (50) Due to the extreme pain she was experiencing from the accident, my wife was taking large quantities of strong pain-relieving drugs. The use of these drugs was causing my wife to be exhausted. She was in terrible pain and required a great deal of attention. I was distressed and preoccupied by her suffering. (51) For several years following the accident I devoted a great deal of time to caring for my wife. (52) Because I was devoting so much time and thought to my wife’s well- being and my own health, as well as to my legal practice, I did not give proper consideration to the question of whether I should pursue the claim against the Defendant. (53) For about eighteen months after the proceedings were filed, I continued to remain hopeful the severe health problems I was experiencing would simply go away. Whilst this hope was alive and because of the other factors I have described, I took no steps to have the proceedings served.” [12] In about late October 2003 Mr Dempsey finally accepted that his health was not going to improve. His symptoms had in fact worsened. He therefore instructed a -- 5 of 16 -- 6 solicitor in Brisbane to pursue the matter vigorously and to apply to renew the claim which had by then become stale and to serve Dr Hack. [13] By letter dated 29 January 2004, Mr Dempsey suggested to Dr Hack that he might accept informal service of the claim, the first page of which he enclosed. The offer was not accepted. It seems that this letter was the only communication between Mr Dempsey or his lawyers since the letter of 29 July 1999 [para 9]. [14] The application to the registrar under rule 24(2) of UCPR was made on 2 April 2004 and on 28 April 2004 the registrar renewed the claim for twelve months from 31 May 2003. [15] The affidavit of Mr Dempsey’s solicitors in support of the application, relevantly, referred to the fact that since 27 October 2003 he had continued to “investigate the relative merits of our client’s claim” and that “the defendant will not be prejudiced by the claim and statement of claim being renewed”. [16] The claim was served on Dr Hack and on 2 April 2004 a conditional notice of intention to defend was filed, challenging the extension of time for service. [17] In an affidavit of the solicitor for Dr Hack it is sworn that Dr Hack did not intend to render an account to Mr Dempsey for his professional services because of “the unfortunate outcome of the procedure” and that the account was sent in error. [18] For the purposes of this application I accept what is sworn to by Mr Dempsey. I am not restricted in my consideration to what was before the registrar, but what is -- 6 of 16 -- 7 placed before me (Major v Australian Sports Commission (2001) QSC 320 at para [58]. The Law [19] Rule 24(2) of UCPR is the rule under which the registrar renewed the claim. It relevantly required the Registrar to be satisfied that there was a “good reason” to renew the claim. It is clear that on the material before him the registrar must have been satisfied that the good reason was that Dr Hack could not have been prejudiced by the renewal. [20] The matters to be considered before exercising the discretion to renew a claim are those that have been identified by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337. These were summarised by Pincus JA in Muirhead, N v Uniting Church of Australian Property Trust Q (1999) QCA 513 at para [4] as follows: “(1) There is a tendency to relax rigid time limits where that is legally possible, and where it can be done without causing prejudice or injustice to the parties; (2) The discretion can be exercised even in circumstances where the statutory limitation period has expired; (3) Matters for proper consideration include the length of the delay, the reasons for it, the conduct of the parties, and the hardship or prejudice caused to the plaintiff by refusing the renewal, or to the defendant by granting the renewal; and (4) The discretion is a wide and unfettered one, and there is no better reason for granting relief than to see that justice is done.” -- 7 of 16 -- 8 [21] Particularly where the limitation period has expired, the relevant principles for considering whether to renew or not renew the claim are “quite analogous” to those which are relevant to an application to extend the limitation period (Jones v Jebras & Hill (1968) Qd R 13 at 23). Now that the ex parte order of the Registrar has been challenged, it is for Mr Dempsey to satisfy the court that dismissing this application will not result in “significant prejudice” to Dr Hack (cf: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, per Dawson J at 544, or “material prejudice”, ibid, per Toohey and Gummow JJ at 547). So too, the court is not now confined to a reconsideration of the affidavit that was relied upon by the plaintiff in support of the initial application for renewal (Sailorchard Pty Ltd (Administrators Appointed) v Thrifty (Australia) Pty Ltd [2003] QSC 041, per Mullins J at [33]). Length of delay [22] There was debate before me whether the length of delay which is relevant to my consideration is the total length of time from 8 June 1999 until 28 April 2004 or whether it is the period between 31 May 2003 and 28 April 2004. [23] This question arose in Brisbane South Regional Health Authority v Taylor, supra, and it was held that the former approach was the correct one (per Toohey and Gummow JJ at 548-549; per McHugh J at 554-555). Although that case concerned extension of time under s.31 of the Limitation Act 1974 I consider that the discussion by their Honours related generally to statutory provisions which regulate the right of a person to litigate by reference to limitation periods. I regard rule 24 to be such a provision. See also Tyson v Morgan (2000) 1 Qd.R. 100. -- 8 of 16 -- 9 [24] So there is no warrant for me to conjecture what was likely to be Dr Hack’s ability to defend the action had the delay been some eleven months less. [25] Here the lapse of time between the surgical procedure (8 June 1999) and the application to the registrar (24 November 2003) was nearly 4½ years and to the date of actual service on Dr Hack about another two months. While the time lapse was considerable it was not beyond that very frequently seen in cases where the discretion is exercised in favour of the applicant (eg Jones v Jebras, supra, 4 years; Major v Australian Sports Commission [2001] QSC 320, 4 years; Sailorchard Pty Ltd v Thrifty (Australia) Pty Ltd [2003] RSC 041, 6 years; Gillies v Tibbetts (2001) 1 Qd.R. 496, 4 years). Unsuccessful applications often involve much lengthier delays (eg Brisbane South Regional Health Authority v Taylor, supra, 16 years; Macdonnell v Rolley (2001) QCA 32, 6 years). Of course, in noting these periods I do not suggest that the decision can simply be reduced to a calculation of the time lapse concerned. The length of time is obviously relevant because it bears on such things as memory failure, disappearance of witnesses and loss of documents. I merely note that the lapse of time is not, of itself, startlingly great. Reasons for Delay [26] The reasons advanced for the delay do little to excuse the delay. Mr Dempsey, of course, well knew the statutory time constraints. Having taken care to protect his interests by filing his claim in time he should have consolidated that protection by serving Dr Hack before the claim became stale. Furthermore, as will appear (para [35] below), Mr Dempsey consulted several colo-rectal surgeons who gave him reason to believe that he had good prospects of making out his cause of action. -- 9 of 16 -- 10 Paragraphs 34 et seq of Mr Dempsey’s affidavit establish that he had this information before he consulted solicitors and filed his claim. To my mind this point weighs against Mr Dempsey. It is not as if he were ignorant of Dr Hack’s alleged negligence. [27] The reasons Mr Dempsey advanced in his affidavit (paras [10] and [11] above) are understandable from a human point of view but hardly unique or even very unusual. Most people shrink from litigation; most people are embarrassed if the subject of the litigation is of a very personal nature; many people continue to hope that a distressing condition will spontaneously improve; most people have other matters which tend to distract them and for some of them those distractions can be compelling. But Mr Dempsey does not suggest that these distractions drove his awareness of the necessity to serve Dr Hack from his mind. [28] Mr Morris QC, for Mr Dempsey, made the submission (a novel one to my experience) that Mr Dempsey’s reluctance to sue, based largely on his hope of spontaneous physical improvement, ought nowadays to be applauded and encouraged rather than criticised. The Courts, he reminded me, are critical of the “rush to litigation” attitude which is said to be abroad. I cannot really accept that as a valid reason to ignore the rule that service be effected within a year (rule 24). Disapproval of a tendency to sue on frivolous grounds or for miniscule injury should not prevent a person who genuinely believes that he has a serious disability which has wrongfully been caused by another, from coming to court. -- 10 of 16 -- 11 [29] So while this is not a case of a completely unexplained delay and while some personal sympathy can be felt for Mr Dempsey, the reasons for the delay do not particularly advance his case. Conduct of the Parties [30] There is no suggestion that Dr Hack has in any way contributed to the delay. The only relevant conduct of Mr Dempsey is that contained in paras [26] - [29]. Prejudice to the Plaintiff [31] The most obvious prejudice which the plaintiff will suffer is the loss of a good cause of action. That fact alone does not constitute a “good reason” to renew the claim (Muirhead v The Uniting Church in Australia Property Trust (Q) (1999) QCA 513). [32] It has always been considered necessary, to have a claim renewed, for the plaintiff to show that prima facie there is a good cause of action. See MacDonnell v Rolley (2001) QCA 32 at para [12]. That necessity is also implicit in the fourth head cited in para [20] above, that justice be done. [33] The cause of action relied on by Mr Dempsey is based on two alternative allegations of negligence. The first is that by operative negligence when carrying out the surgical procedure Dr Hack injured Mr Dempsey. The second is that Dr Hack failed to warn Mr Dempsey of the possibility that the procedure, even if -- 11 of 16 -- 12 meticulously carried out, could cause the onset of the condition of which he now suffers. See Rogers v Whittaker (1992) 175 CLR 479. [34] In this case no direct expert evidence was placed before me that the symptoms which Mr Dempsey suffered immediately after the surgical procedure and which he continues to suffer was probably caused by negligence on the part of Dr Hack. Expert evidence is sometimes proffered in cases such as this. See for example Macdonnell v Rolley, above, at para [12] where Wilson J said: “Of course an applicant need not adduce evidence approaching that required to succeed at trial but he or she should be at least able to point to the existence of evidence which, if admitted at trial, would establish a prima facie case of negligence.” [35] However, the affidavit of Mr Dempsey contains a paragraph which is: “29. Because of these matters, I subsequently consulted several colo-rectal surgeons, in order to determine what had happened to me. I have been told by three different colo- rectal surgeons (and I verily believe) that: (a) My anal sphincter is “broken”. This is consistent with it having been stretched by the Defendant in the course of his examination; (b) Stretching a patient’s anus is never done, because if you go too far, you can break it and cause irreparable harm; and (c) In certain cases involving pain, tension and spasms, it may be appropriate to cut the anus, but certainly not to stretch it.” [36] At the hearing of the application, and subsequently in writing, submissions were made of the use to which that paragraph 29 could be put. Ultimately it seemed to be common ground that there are two such uses. First, the paragraph is evidence of the plaintiff’s own belief, which is relevant to the reasons for delay. Second, although the sources of the information are not sufficiently identified to make the paragraph evidence of its hearsay contents (UCPR rule 430(2)), the contents of the -- 12 of 16 -- 13 paragraph are relevant as establishing that expert evidence is available which will assist in establishing Mr Dempsey’s case at the trial. I was referred to Dwan v Farquhar (1988) 1 Qd 234 at 239; Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 559. [37] I have given my views on the first use in para [26] above. On the second point, Mr Diehm’s argument was that the information deposed to in para 29 of the affidavit insufficiently identifies the sources of the information to the extent that it cannot carry any real weight. [38] I do not accept that. In my opinion para 29 of the affidavit sets out with sufficient clarity and cogency facts which, if proved, could establish operative negligence. And it also establishes the availability of evidence to prove that if Dr Hack had intended to stretch the anus (or even contemplated that it might be done) his failure to disclose this and the attendant risk to Mr Dempsey could be a negligent failure to warn. [39] Furthermore, the matters which I set out below in para [42] below would seem to me to amount to quite valuable circumstantial evidence of negligence. Unfairness; [40] A central issue in applications to extend time for serving an originating process is the unfairness which may result to a defendant because of the passage of time. This is particularly the case where relevant witnesses have died or disappeared, (indeed when the real defendant is an insurer, even the alleged tortfeasor may fall into that -- 13 of 16 -- 14 category), the loss of documents and of course the natural failure of memory. In this matter the respondent does not put forward the first two propositions. There was no suggestion of a loss of documents, such as clinical notes, hospital records or the like, or of the unavailability of material witnesses. What is sworn to by Dr Hack's solicitors is that "Dr Hack does not retain an independent recollection in relation to certain aspects of his consultations with Mr Dempsey". [41] It is true, as has been noted (see for example Brisbane South Regional Health Authority v Taylor supra at 551 per McHugh J) that memory being what it is, memory loss can occur without present knowledge of its loss; that lapse of time may cause a loss of the recognition of the importance or significance of even a recalled fact. But it seems to me that on the other hand there may be contemporaneous events so unusual as to act as indelible reminders of facts, and as unforgettable signposts to the significance and importance of recalled facts. [42] I consider that there were unusual contemporaneous events in this matter and that the probabilities are that they would have acted as indelible reminders of facts and as unforgettable signposts. These are: (a) The immediate results of the operative procedure which Dr Hack himself described as an "unfortunate outcome of the procedure"; (b) The fact that Dr Hack considered the outcome so unfortunate as to forego payment of his fee. Although the fee was small, to my mind if the outcome, though unfortunate, were one which was not unusual, or one of which he had given the plaintiff proper warning, -- 14 of 16 -- 15 then I would have expected Dr Hack at least to point that out to Mr Dempsey, and perhaps, having done so, insist that his fee was payable. This is especially so because of the allegation Mr Dempsey made to Dr Hack that he had been negligent. I would have expected a professional man to have responded with a denial of negligence or a reminder of a warning. All this occurred within two months of the operative procedure. (c) Nowadays the value of colonoscopies and sigmoidoscopies, especially to the middle aged and older, is quite frequently publicised, discussed and undertaken without any suggestion that either involves anything more than a brief visit to a hospital or any appreciable risk of ill effects. I consider that I can take judicial notice of that. The consequences to Mr Dempsey were quite unlike what is generally expected to occur and I would have thought highly suggestive, in the absence of explanation to him by Dr Hack, that something had gone badly wrong which should not have. (d) It is obviously most unusual for a patient's treatment and supervision to be abruptly taken over by another doctor. It is strange that Dr Hack did not see him again. The strong inference to be drawn is that Dr Hack was taken off the case. I feel safe in assuming that to be an unusual and unforgettable event. [43] To my mind the above unusual circumstances render it much less likely than is usually the case, that Dr Hack is unable to remember material facts. Indeed, I think -- 15 of 16 -- 16 it unlikely. So I find that there is unlikely to be prejudice or injustice to Dr Hack by the extension of the time to enable service. Conclusion [44] I dismiss the defendant’s applications. -- 16 of 16 --