Duncan Murray Kirk v Katharine Mary Golski the Executrix of the Estate of the Late Alex Golski [1986] ACTSC 53 (26 June 1986)

SUPREME COURT OF THE ACT

DUNCAN MURRAY KIRK v. KATHARINE MARY GOLSKI the Executrix of the Estate of the
late ALEX GOLSKI
S.C. No. 1439 of 1978
Practice and Procedure - Limitation of Actions

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Practice & Procedure - application to amend statement of claim - action for negligent treatment by surgeon - whether allegation of negligent advice raises new cause of action.

Limitation of Actions - action against deceased estate of surgeon alleging negligent treatment - whether allegation of negligent advice raises new cause of action.

Weldon v. Neal (1887) 19 QBD 394

Renowden v. McMullin [1970] HCA 24; (1970) 123 CLR 584

Hedley Byrne v. Heller [1963] UKHL 4; (1964) AC 465

Sidaway v. Bethlem Royal Hospital (1985) 1 AC 871

Black v. City of South Melbourne (1964) 38 ALJR 309

HEARING

CANBERRA
26:6:1986

ORDER

The amendment sought is allowed.

The plaintiff is to pay the defendant's costs of the appeal.

DECISION

This is an appeal by a decision of the Registrar refusing leave to amend a statement of claim. The appeal is a hearing de novo: Order 61 Rule 5(f). The action was brought by the plaintiff against the estate of the late Dr Alex Golski, an orthopaedic surgeon. The plaintiff alleges that in June 1976 he consulted Dr Golski for treatment for a condition of the meniscus of his left leg. He further alleges that having consulted Dr Golski he was admitted to hospital where Dr Golski performed a left meniscectomy. The statement of claim goes on to allege as follows:

"5. In breach of his duty to the plaintiff the

defendant negligently and unskilfully
treated the plaintiff for the said
meniscectomy:
Particulars:
(a) During the course of the said operation
damaging cutting or otherwise interfering
with the long saphenous nerve.
(b) Commencing the operation by an incision
which was higher than normal and which
thereby damaged the said nerve."

2. The plaintiff proposes to amend the statement of claim by adding the following sub-paragraphs to paragraph 5:

"(c) Failing to properly and adequately manage
the plaintiff's treatment.
(d) Recommending to the plaintiff (well knowing
that the plaintiff would be likely to act
on the said recommendation) that the
plaintiff undergo the said left
menisectomy.
(e) Failing to advise the plaintiff prior to so
recommending of the nature and extent of
the operation and of the risk that during
the said operation the long saphenous nerve
might be damaged, cut or otherwise
interferred with and of the consequences
thereof."

3. It is common ground that pursuant to the provision of s.6(1)(b) of the Law Reform (Miscellaneous Provisions) Ordinance 1955 the plaintiff's right to bring proceedings against the estate of Dr Golski expired sometime in 1979. The issue on this appeal is whether the effect of allowing the amendment would be to enable the plaintiff to add a new cause of action to the claim in negligence already sued upon, thereby avoiding the limitation provisions of the Ordinance. If that would be the effect of the amendment, then it is not permissible. The principle accords with a long line of cases going back to Weldon v. Neal (1887) 19 QBD 394, a decision which has been followed and acted upon on many occasions in this country. See for instance Renowden v. McMullin [1970] HCA 24; (1970) 123 CLR 584.

4. The question for me to determine is simply whether the proposed amendment does no more than give further particulars of the plaintiff's claim on the cause of action sued upon, or whether it gives rise to an allegation of a further and distinct cause of action. For the plaintiff it was argued that the allegation of a failure to adequately advise the plaintiff does no more than give further particulars of the breach of the general duty of care owed by Dr Golski to the plaintiff as his treating surgeon. For the defendant it was submitted that the plaintiff has made an allegation of negligent surgery, and that to allege now an allegation of negligent advice is to introduce something so different that it must be a difference in kind, amounting to an allegation of a breach of a distinct and separate duty of care and that therefore the amendment sought must be properly categorised as involving a separate cause of action. I would add that it was not suggested that the proposed new cause of action was for negligent advice in the sense used in Hedley Byrne v. Heller [1963] UKHL 4; (1964) AC 465.

5. The nature of the duty owed by a doctor to a patient was the subject of consideration in the recent decision of the House of Lords in Sidaway v. Bethlem Royal Hospital (1985) 1 AC 871. Not all their Lordships agreed in their reasons. I would with respect accept Lord Diplock's analysis at page 893 of the doctor/patient relationship for the purposes of the present case:

"In English jurisprudence the doctor's
relationship
with his patient which gives rise to the
normal duty of care to exercise his skill and
judgment to improve the patient's health in any
particular respect in which the patient has sought
his aid, has hitherto been treated as single
comprehensive duty covering all the ways in which
a doctor is called upon to exercise his skill and
judgment in the improvement of the physical or
mental condition of the patient for which his
services either as a general practitioner or
specialist have been engaged. This general duty
is not subject to dissection into a number of
component parts to which different criteria of
what satisfy the duty of care apply, such as
diagnosis, treatment, advice (including warning of
any risks of something going wrong however
skilfully the treatment advised is carried out.)"

6. Although his Lordship said that the general duty of care is not subject to dissection into a number of component parts, I do not take him to be saying that in alleging particulars of the breach of duty it is not open to a patient to allege that the doctor was negligent in one or more of certain aspects of his conduct, some of which aspects may be categorised as diagnosis, treatment and advice. In this respect I think that the doctor's duty of care (breach of which gives rise to tortious liability) is a single duty, much like the duty of care of an employer to take reasonable care for the safety of employees. That duty has sometimes as a matter of convention been regarded as involving a duty to provide a reasonably safe system of work, to provide reasonably safe plant and equipment, and to provide a reasonably safe place of work. In truth there is a single duty, breach of which may conveniently be considered by reference to one or other of the three broad factual situations. Likewise, in my view, the allegation of the plaintiff that Dr Golski was negligent in failing to furnish proper advice is a different particular allegation of the breach of the general and normal duty of care to exercise reasonable skill and judgment in and about the treatment of the patient. Counsel for the parties, whose helpful submissions were both comprehensive and concise, referred me to a number of other authorities, but I think it necessary to mention only Black v. City of South Melbourne (1964) 38 ALJR 309 in which it seems to me with respect that the words of the then Chief Justice at page 310 were appropriate to the present case:

"It seems to me quite plain that, throughout, the
plaintiff's cause of action did not change, though
his particularizing of the facts by which he
proposed to sustain that cause of action did
significantly alter. It would, in my opinion,
have been an improper exercise of judicial
discretion for the trial judge in this case to
have refused the plaintiff the opportunity to
present his proofs of that cause of action
differently to the manner in which he had
originally proposed. Questions of surprise and
disadvantage because of a change of course in
proof can almost always be met by adjournment and
appropriate orders as to costs. It would
certainly have been so in this case. As there
was, in my opinion, no new cause of action
involved in the changed particulars, no question
of the statute of limitations fell for
consideration."

7. It remains for me to decide whether, the question of the expiry of a limitation period not arising, it is appropriate in the exercise of my discretion to allow the amendment. I take into account that there has been a considerable delay since the time the alleged breach occurred. I take into account also the likelihood that the defendant, being the executor of the estate of the alleged tortfeasor, may be in a difficult position to answer factual allegations about what advice was given or not given by Dr Golski. This is a not uncommon situation in proceedings brought against a deceased estate. I do not think that any difficulty which the defendant may face in this respect should be met by refusing to allow the plaintiff to properly present his case.

8. I allow the amendment sought. The plaintiff is to pay the defendant's costs of the appeal. The defendant already has his costs before the Registrar and it is not necessary for me to make an order in that respect.