Western Australia’s Court of Appeal in its decision AME Hospitals PTY, Limited v. Dixon [2015] WASCA 63, delivered on 27 March 2015, confirmed, particularly relevantly in the medical negligence claims area, significant scope for persons to bring claim outside the basic 3-year time limit for such claims arising since November 2005 and the introduction of the Limitation Act 2005.

To be permitted to bring claim  beyond the 3-year time limit, Section 39(3) the Limitation Act 2005 provided that the person wishing to bring claim must establish that when the 3-year time limit expired they were not aware of one or more of the following:

  1. The physical cause of the death or injury;
  2. That such death or injury was attributable to the conduct of the person against whom claim is sought to be brought; or
  3. The identity of the person against whom the claim should be brought, despite reasonable inquiry.

In the Dixon decision all three members of the Court confirmed that for ‘awareness‘ of the above facts to arise, there, in effect, had to be a solid foundation/justification for belief. It was not sufficient for a suspicion or even, it would seem, an ungrounded belief to be held.

President McLure (with whom Newnes J.A. agreed) confirmed that where the “awareness” relates to a matter for expert knowledge or experience this will arise only when an expert opinion, reasonably capable of being accepted by a Court and capable of establishing the relevant facts exists and is known by the person [41].

In practice therefore, in a medical negligence claim, to have awareness that an injury was “attributable to the conduct of a person” (the 2nd test above) will, in my view at least, almost inevitably require that an expert medical witness has expressed such a view and this has been made known to the claimant.  This is also likely to often be the case for full awareness as to the physical cause (an odd phrase) of an injury (the first aspect of awareness that may be lacking to qualify for a possible extension).

Buss JA in a separate judgment suggested that the necessary “awareness” must mean knowledge or belief “with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or otherwise.” In a professional negligence context, such as a medical negligence claim against a doctor or hospital, it is hard to envision this point being reached before the claimant has been advised to do so by their legal advisors/representatives.  In our case at least, this will almost always require that a respectable independent medical expert has confirmed shortcomings in the relevant care and that this was a cause of harm to the patient.

In practice, this means that there will often be good prospects in medical negligence claims, other than the most straightforward, for seeking an extension of time to bring claim outside the 3-year time limit, where a client (the patient) delays seeking legal advice or investigation of the claim until outside this 3-year timeframe from their initial injury, or where provision of the expert opinion does not occur until this 3-year time limit has expired. This is very generous indeed and good news for our clients.

Two factors do however still need to be borne in mind in this context, before we get too carried away (!), being:

  1. There remains a 3-year outer limit for any extension from when awareness of the relevant matters ought to have arisen. In other words, there needs to be some reasonable explanation put forward for substantial delay in looking into a claim and obtaining appropriate expert advice, etc;
  2. Further, capacity to seek an extension of time does not guarantee that it will be granted.  In particular, in the event that the doctor, hospital or other health professional can show prejudice because of the delay in a claim being brought, the Court remains perfectly able to refuse to grant an extension despite the discretion arising.

Somewhat disappointingly, the Court of Appeal did not provide any clear guidance in relation to a remaining difficulty with claims and figuring out time limits.  This is the uncertainty as to when the 3 year time limit begins.  This remains unclear because the meaning of Section 55(1)(b) of the legislation and what is meant by when the “first symptom, clinical sign or manifestation of personal injury, consistent with a person having sustained a not insignificant personal injury.”  This determines when the initial 3-year period begins to run. As can be gathered, the meaning of these words is far from obvious…

As I have observed previously, it is important to appreciate that the lack of such awareness at the 3-year limitation, expired point is mandatory. Bizarrely, if such awareness arises the day preceding this deadline, no power to grant an extension arises.

I note with interest the Court of Appeal’s decision in Nigam v Harm [2011] WASCA 211.

Whilst a case concerning a negligence action against a firm of solicitors, the important aspects of the case predominantly related to medical negligence claims.  

It was alleged the relevant firm of solicitors had been negligent in failing to:

  • take action to protect a potential medical negligence claim by Mrs Harm against surgeon, Dr Hastwell.
  • pursue various lines of investigation concerning possible lack of care on the part of the relevant surgeon, Dr Hastwell.

Mrs Harm had succeeded in her case against such solicitors at trial, but on appeal, such claim was overturned. The court majority concluded that the solicitors had not been negligent.

For a lawyer working in this area, it was interesting to read the degree of initiative/imagination considered required on the part of solicitors investigating quality of medical care issues.. My impression was that the ‘bar’ was set lower than I would expect.

This was particularly so, in relation to the issue of reminding Ms Harm about the impending expiry of the ‘holding’ writ that had been lodged (which would end any claim if it expired without action).  Given it seems she was still eager to pursue claim, I am surprised her solicitor was not considered obliged to remind her of this deadline so a decision could be made, whether the writ was served (or an application made to extend), given the consequences if it was not (which it was not clear to me, from reading the decision, she knew).

Justice Newnes made interesting comments in relation to the one area he did consider the solicitors ought to have considered some prospects of a legitimate claim, a claim that the surgeon had failed to appropriately warn Mrs Harm of the risk that the surgery may cause significant post-operative nerve pain in the area of scarring at her surgical incision (see for example @ [116] – [121]).

His Honour concluded, that any claim by Mrs Harms would not have prevailed, because she would not have proved that if warned she would not have gone ahead with such surgery.

With respect, I am not sure the evidence really supported such a conclusion (as distinct from a conclusion that ‘no conclusion’ could be drawn, because too many important things were unknown relevant to such decision (for example: the true scale of such risk, the alternatives open to her, other than such surgery {including the risk if it was performed laparoscopically, if this was possible}).

Justice Newnes view was shared by McLure P and so prevailed.   Interestingly, Justice Murphy disagreed and considered the solicitor had been negligent in relation to this failure to warn aspect of the potential claim.

 

 I admit that I am partisan, when it comes to comment upon cases that I have been involved in.  Read the following bearing this in mind.  As you will gather, they are not ‘rose-coloured’ glasses I see this through..

I have previously posted in relation to the case of Wright v WA Country Health Services (effectively Broome Hospital), in which I have acted for Billy Wright.

The final (now sad) chapter in this case came with the Court of Appeal’s decision yesterday, upholding the hospital’s appeal and dismissing Billy’s claim.  

The Court’s conclusion was that the evidence at trial did not justify the conclusion that Billy would have been better off, had his infection which lead to his initial attendance at the hospital, been treated at such hospital, rather than his being at home.

The result left by this decision is as follows, in terms of the facts of the case:

1) Billy was negligently treated by hospital staff when he attended Broome Hospital’s A+E department, following the onset of severe abdominal pain.  He should not (as he was) have been discharged after being kept for observation for an hour or so, when he continued to experience significant pain, the cause for which had not been identified.

The hospital did not appeal against this conclusion by the trial judge (it could not).

2) Had Billy been kept at the hospital (as he should), within an hour or so, it would have been identified that his condition was deteriorating.  He developed rigors and probably at such point had a temperature, indicative of infection.  Presumably, had this been identified, tests would have been done to identify the cause for this infection and (initially broad spectrum) antibiotics would have been commenced.

Again the hospital did not (and could) appeal against this conclusion.

3) Billy’s condition deteriorated over the following 30+ hours, such that when his family took him back to Broome Hospital, he was in critical condition and at risk of dying.

The hospital did not appeal this, because Billy’s condition when he re-attended the  hospital is self-evident from the records.

All of the above seems reasonable. The ‘catch’ comes at the next step….

4) The bug responsible for Billy’s illness was never identified.  Blood cultures and x-rays taken after he returned to the hospital confirmed his critical illness but not its cause.  This is not remarkable.  Evidence at trial was that this can commonly occur.  Further, perfectly understandably given they were trying to save his life, staff at Broome Hospital had given Billy large doses of IV antibiotics when he returned to Broome Hospital, which it was accepted could explain why the bugs responsible for his infection were not identifiable.

Here is the killer step….

5) Because such bug could not be identified, the hospital’s insurer argued (and this was accepted by the Court of Appeal) that it could not be proven that Billy would necessarily have been better off had he been kept at the hospital under observation, rather than being discharged, at his initial visit.  In other words, despite the fact they ought to have seen his progressing symptoms, if they had done the right thing and kept him at hospital, the view taken is that it could not be proven that any treatment at the hospital would have been effective and would have made any difference to his condition, compared with its development while he lay in bed at home.

Quite apart from the difficulty of this outcome as a matter of common sense (in my humble opinion) such conclusion also ignores the fact that uncertainty as to the identity of the responsible bug was at least contributed to by the hospital’s negligence in the first place.  Had they done what they should have, kept Billy for observation and identified his deterioration within an hour or so, it seems to me that the relevant bug must have been a good chance of being identified by blood test etc at that time or at least, the further information as to Billy’s progressive symptoms that would have been available would have assisted in identifying the most likely cause.  The problem of proving the type of bug present was directly a consequence of the hospital’s negligence.

Despite my putting this last point to the Court of Appeal during argument – that this link between the hospital’s negligence and any uncertainty as the bug’s identity should tend towards a conclusion in BIlly’s favour, the reasons for the Court’s decision are silent on the point.

All in all a bitter outcome for my client and I.  My client, understandably in my view, has difficulty accepting the Law’s reasoning as achieving a just result….

 The year has not got off to a good start for Plaintiffs in medical negligence claims in our Court of Appeal. In Hammond v Heath [2010] WASCA 6, the Court of Appeal on 19 January 2010 dismissed Mr Hammond’s appeal against the District Court Judge’s finding, rejecting his medical negligence claim against Dr Heath and Dr Heath’s employer, the Minister for Health (as operator of Joondalup Health Campus).

The case concerned hernia surgery.

The Appeal challenged the District Court’s Judge’s decisions rejecting Mr Heath’s claim, firstly, that Dr Heath ought to have warned Mr Hammond of risks associated with allowing mesh to remain in situ following surgery that had been performed in May 2001. 

The Court of Appeal led by Chief Justice Martin rejected this ground on the basis that as the Commissioner had found, there was no evidence that at the time, and in the circumstances, allowing the mesh to remain in place would reasonably have been thought to pose any appreciable adverse risk to Mr Hammond [17].

The next attack upon the District Court Judge’s decision was in relation to the finding that Dr Heath was not negligent in failing to remove the relevant mesh on 28 August 2001.

The difficulty (which proved insurmountable) for the Appellant on this ground was the fact that Dr Heath had given uncontradicted evidence as to his reasons for not doing so on this date and particularly that he wishes to minimise surgical intervention as much as possible given Mr Hammond’s general poor health. Dr Heath was not at Trial cross-examined about this decision or its rationale and no expert evidence was put forward by any other surgeon suggesting that his reasoning was unreasonable.

The appeal was therefore dismissed.

Although not concerning medical negligence cases, this case is of interest.

In this recent Court of Appeal decision (delivered 6 Nov 09), the Court found that a driver of a stolen car did not owe any duty of care to a passenger in such vehicle, who was aware of the fact the car was stolen.  The Court found the driver and passenger were engaged in "a joint criminal enterprise" and so no duty to take care arose.

Consequently, when the driver drove negligently colliding with a pole causing injury, the passenger, who at the time was a 16 year old girl, could not recover compensation for her injuries.  The passenger’s injuries were serious and another passenger in the vehicle died from their injuries.  

The passenger was in a relationship in which she regarded the driver as akin to her ‘uncle’ and at trial evidence had been lead indicative of the driver’s insistence that the passenger remain in the vehicle, when she had asked to be dropped off.  She had made this request when the driver, after initially driving safely, had started to speed and drive more dangerously.

I would have thought, with respect, that this final point would have removed any ‘joint criminal enterprise" finding.  The passenger wished and requested to be let out of the car.  Had her request been followed, the joint illegal conduct (driving the stolen car) would have come to an end and she would not have been in the car at the time of the collision.  This point was recognised and commented upon by Buss JA.  I am surprised it wasn’t emphasised more by the passenger.

Newnes JA, the other member of the Court based his conclusions on a view that:

"the respondent could not reasonably have expected that the appellant would drive the vehicle according to the ordinary standard of care

With respect, this seems to me to make a great leap.  Why was the fact the passenger’s ‘uncle’ was driving a stolen car, necessarily reason to assume he would not drive safely and would put the occupants of the vehicle at risk by dangerously driving?  Also, what is the relevance to this of the fact, as stated above, that the passenger had requested to be let out as soon as the driver started to drive unsafely?  Doesn’t this say anything of her expectations?

This decision reversed the trial judge’s conclusion in favour of the passenger.

No doubt a shortcoming on my part, but with the greatest of respect, I can’t understand the reasons for this conclusion.  McLure JA and Buss JA suggest the foundation for such view is that given the illegality of the enterprise it is not possible to ascertain an appropriate standard of care to be expected [R3] + [R81].    

Buss JA stated [R82]:

It is not feasible or appropriate for the law to endeavour to fix a standard of care by taking into account and evaluating the incidents of the criminal enterprise upon which the appellant and the respondent were jointly engaged

I for one am not sure why this wasn’t feasible or appropriate.

Clearly a tough stance for our highest court. 

Further to an earlier post, the New South Wales Court of Appeal has recently delivered its decision concerning the appeal in relation to Ms O’Gorman’s delay in diagnosis of breast cancer claim.

Tragically in the period between the initial decision in her favour and this appeal, Ms O’Gorman died from her metastatic breast cancer.   As a consequence the appeal was contested by her Estate.
The Area Health Service responsible for BreastScreen New South Wales, the Sydney South-West Area Health Service succeeded in its appeal and the Court of Appeal have ordered a re-trial on the issue of negligence.

The primary reason for the Appeal being upheld and a re-trial being ordered was the Court of Appeal’s view that the trial judge had been wrong to refuse to allow the two radiologists involved in assessing Ms O’Gorman’s original breast images to give evidence as to whether they had taken reasonable care in examining her breast images.

This is a not uncommon situation. A defendant seeks to bolster its case by reinforcing its “independent” expert witnesses’ opinions by the views of the particular doctors concerned. I have had first hand experience of this in several cases at and approaching trial in the last two or three years.

Consistent with the New South Wales Court of Appeal’s decision, the generally accepted position is that such evidence cannot be put forward unless its substance has been disclosed an appropriate period prior to trial (as with any other expert’s opinion).  By this means the parties are given an appropriate opportunity to consider such opinion, its foundation and prepare cross examination etc.

Subject to this requirement, such expert evidence can generally be put forward, albeit (and this point was acknowledged by the New South Wales Court of Appeal), there will always be issues as to the weight to be attached to such opinion given the witnesses’ lack of impartiality.

More interestingly in a general sense, the Court of Appeal in this case made some interesting observations in relation to causation questions.

Continue Reading A Balance of Probabilities does NOT mean >50% (at least in NSW)

Reading the recent West Australian Court of Appeal decision in Gingin -v- Coomb [2009] WASCA 92, handed down last month.  This was a case concerning a catastrophically injured young man who suffered injury when he lost control of his trail-bike when riding it in a designated off-road recreational area, near Lancelin, a beach side town an hour or so North of Perth.

Unfortunately for Mr Coomb, the Court of Appeal (2:1) reversed the trial judge’s finding that the Shire were in breach of the duty they owed him, in failing to more adequately warn him of the potential for such injury when riding in the dune area.

I have to say I am very surprised at the evidence at trial (which it does not seem was contradicted) that because the dunes in the designated area were "ever changing, depending on wind strength and direction" (Martin CJ @ R26), it was not feasible for the Shire to inspect the area and cordon off obviously dangerous areas, despite it being found the Shire encouraged use of such area (R20) and that a designated area was set aside for this activity (and was very popular).

It surprises me that it seems the dune face Mr Coombs fell down, which was 10 – 15m high at an angle of 80 degrees, with a hard rock bottom, would not have been an obvious hazard, had it been inspected even a month or 2 before the accident.  In fact very shortly prior to Mr Coombs’ accident (on the same day) another rider was fatally injured at the precise same location. This suggests the area was commonly crossed and again, in my view, indicates that inspection/identification of the particular and unusual hazard of the particular location ought to have been possible. The danger (or near inevitability of injuries) for someone riding at anything other than very low speed, over such a dune, and confronting such a face, seems absolutely clear as a matter of common sense.

The case is another example of the difficulty of demonstrating claims, based on an alleged failure to warn. See the contrasting factual conclusions by Martin CJ (in the majority) -v- McLure JA on this.

Once again, the case faced a fundamental evidentiary gap, because Mr Coombs was not asked (as he should have been) and so did not say, how a better sign warning of the particular risk of this sort of dune, would have changed the way he approached the relevant dune on his trail bike (appreciating the difficulty of this, because he had no recollection of the accident).

Although this is not a medical negligence case, it is relevant, given a ‘failure to warn‘ is a very common type of medical negligence or malpractice case investigated.  The key question of whether the person making claim can show that if warned, they would have acted differently (in a medical context, would not have had the surgery etc), remains the most substantial hurdle for claims.

image: GrahamKing