Wiggins v Meagher & Anor [2003] NSWCA 49 (10 March 2003)

Last Updated: 12 March 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Wiggins v Meagher & Anor [2003] NSWCA 49

FILE NUMBER(S):

40274/02

HEARING DATE(S): 10 March 2003

JUDGMENT DATE: 10/03/2003

PARTIES:

Lisa Sharon Wiggins - Claimant

Dr William Meagher - First Opponent

Southern Area Health Services - Second Opponent

JUDGMENT OF: Giles JA Young CJ in Eq Grove J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 43/01 (Lithgow)

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL:

J D Hislop QC & A J Hourigan - Claimant

S D Kalfas - First Opponent

M K Scott - Second Opponent

SOLICITORS:

Higgins & Higgins, Lithgow - Claimant

Ebsworth & Ebsworth - First Opponent

Sparke Helmore - Second Opponent

CATCHWORDS:

Limitations - extension of time - prejudice from delay whereby fair trial unlikely - clinical notes destroyed - whether significant prejudice - not shown clinical notes likely to bear upon the negligence alleged or causation - extension granted. ND

LEGISLATION CITED:

DECISION:

1. Grant leave to appeal; 2. Direct the filing of a notice of appeal within 7 days; 3. Appeal allowed; 4. Set aside the order made dismissing the statement of claim; 5. Order that the limitation period be extended pursuant to Div 3 subdivision 3 and Sch 5 of the Limitation Act 1969 up to and including 25 May 2001; 6. Set aside the order for costs made in the District Court and in lieu thereof that the plaintiff pay the second and third defendants costs of the application to extend time in the District Court; 7. Order that the opponents pay the claimant's costs of the proceedings in this Court and have certificates under the Suitors Fund Act if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40274/02

DC 43/01

GILES JA

YOUNG CJ in EQ

GROVE J

Monday 10 March 2003

WIGGINS v MEAGHER & ANOR

JUDGMENT

1 GILES JA: This is an application for leave to appeal, heard on full submissions so that if leave be granted the appeal can be determined without the necessity for a further hearing. The prospective appeal is from a decision given on 15 March 2002 on an application for an extension of time, pursuant to the provisions of the Limitation Act 1969, for the claimant to bring proceedings against the opponents.

2 The claimant was admitted to the Young District Hospital on 19 April 1992 for the birth of her second child. Whilst in the hospital she was under the care of Dr William Meagher. She developed a venous condition in her right leg. In the statement of claim filed in the District Court, in which Dr Meagher and the hospital were named as defendants, she alleged that the condition was not properly diagnosed or treated, and that in consequence she developed the more serious condition of deep vein thrombosis about two weeks later. Having developed that more serious condition she was hospitalised and treated, and various things flowed in the ensuing years all of which she alleged were due to the inadequate diagnosis and treatment of the condition developed whilst in the hospital.

3 The claimant did not commence her proceedings until many years had passed. The Judge was satisfied that she was ignorant of the existence of relevant omissions of the opponents until a date in the middle of 2001. On the claimant's application for an extension of time the Judge correctly directed himself in law, and the question came down to whether there was prejudice whereby the opponents could not have a fair trial. The judge found that there was significant prejudice. He said that he was satisfied that the prejudice of Dr Meagher "was unlikely to lead to an acceptably fair trial" and that, as the position of the hospital was intimately bound up with that of Dr Meagher, the result as to the hospital should be the same.

4 Why then did his Honour find that there was the significant prejudice? It was common ground that full hospital records were available. The prejudice found turned upon the fact that the clinical notes of the practice of Drs Brown and Meagher had been destroyed. Thus it is necessary to ask why the destruction of those records would amount to a significant prejudice.

5 The claimant's claim was of negligence during her admission to the hospital for the birth of her child. It was not a claim for negligence in any prior or subsequent treatment or advice.

6 Dr Meagher had not treated the claimant prior to her entry into hospital. Dr Brown had treated her, but with a faint exception there was no suggestion that he had treated her or been called upon to advise her in any way in relation to a susceptibility to or a pre-existing condition of the same kind as that which befell her in hospital and more seriously later. The faint exception is that, according to the claimant, she complained to Dr Brown of a pain in the groin area which Dr Brown attributed to the positioning of the baby.

7 Dr Meagher did not treat the claimant following her discharge from hospital after the birth of her child. According to the claimant she consulted Dr Brown once after her discharge from hospital, about six weeks thereafter and after her more serious condition had developed and she had been hospitalised in relation to that condition. It was not suggested that her consultation with Dr Brown was in relation to that condition. In her oral evidence the claimant acknowledged when pressed the possibility that she had consulted Dr Brown more than once, and had consulted him in the intervening period between her discharge from hospital and the consultation to which I have referred. There was nothing else to suggest that she had done so. The accounting system records of the practice of Drs Brown and Meagher had one entry only, for the consultation to which I have referred. Subject to the further evidence to which I will shortly come, therefore, there was little to suggest that the records of the practice following the claimant's discharge from hospital would bear upon the diagnosis and treatment of the condition which befell her whilst she was in hospital or the causal link between what happened in hospital and her later more serious condition.

8 In those circumstances I have extreme difficulty in seeing how the absence of the clinical notes of the practice could amount to significant prejudice. It was suggested that because in a report of Dr Tomlinson there was reference to precautions in relation to deep vein thrombosis "prior to or during [the claimant's] confinement", the clinical notes for the period prior to the claimant's admission to hospital might have been material to the disposal of the claimant's claim. However, that was not in any way how the claimant put her claim. Her claim was one of inadequate diagnosis and treatment while in hospital when, it might be added, it was common ground that an earlier episode in the 1980s and a disposition to vein problems was known to Dr Meagher and the hospital. Nor, it seems to me, in the circumstances I have mentioned has it been shown that any clinical notes for the period following the claimant's discharge from hospital would be likely to bear upon the negligence or otherwise of Dr Meagher and the hospital whilst she was in hospital or the causal link between what happened in hospital and the later more serious condition.

9 The further evidence was a claims history statement issued by the Health Insurance Commission, which showed that the only service for which benefits were paid provided by Dr Brown in the period after 19 April 1992 was the consultation about six weeks after the claimant's discharge from hospital. The point of the evidence was to cut down the concession in cross-examination of a possibility of another consultation with Dr Brown. In the particular circumstances of this case, while I do not think it in any manner determinative I consider that this evidence should be received.

10 It was not fresh evidence, in that no doubt it could have been obtained for the hearing in the District Court. However, the circumstances of that hearing must be remembered. The claimant had put on a fairly detailed affidavit of her medical history, which said nothing of any consultation with Dr Brown following her discharge from hospital. In cross-examination she was asked about consulting him after her discharge from hospital, and she immediately said that she had consulted him once and identified a time which was more or less in accord with the date in the accounting system records. Then came the acceptance that "it could have been" that she had seen Dr Brown more than once. This suggestion came rather out of the woodwork.

11 It is not necessary that there be special grounds since, although an order has been made dismissing the claimant's statement of claim, that did not follow a trial or hearing relevantly on the merits. It must be borne in mind that if the Judge's decision be set aside so that the claimant can proceed with her claim, she will be able to lead evidence going beyond that which was before the Judge, including by the tender of the Health Insurance Commission claims history. In all those circumstances it seems to me that it would be a proper exercise of the power to receive further evidence under s 75A(7) of the Supreme Court Act for this further evidence to be received.

12 With or without that evidence, however, I am persuaded that the Judge's finding was in error and that it was not open to him to find that there was significant prejudice. That applies, to my mind, both to Dr Meagher and to the hospital. In the case of the hospital our attention was drawn to a submission made to the Judge that it would be impossible for the hospital staff, if they could be traced, to be expected to remember the claimant and any treatment which may have been given to her while she was at the hospital. That submission was in effect repeated. There was, however, no evidence of difficulty in tracing staff and, as I have said, the full hospital records were available. I am not persuaded that the hospital can point to prejudice materially greater than that of Dr Meagher because of the involvement of its staff and, in any event, in determining the case as between the claimant and Dr Meagher the involvement of the staff would be relevant.

13 It was submitted that the Judge had exercised a discretion and had not misdirected himself in law, and that we should not simply take a different view of the exercise of discretion. It is correct that we should not do so. In my opinion, however, the exercise of discretion against the claimant on the ground of significant prejudice to the opponents was not open, because that factual basis was in error. Leave to appeal should be granted, and I propose the following orders:

1. Grant leave to appeal.

2. Direct the filing of a notice of appeal within 7 days.

3. Appeal allowed.

4. Set aside the order made dismissing the statement of claim.

5. Order that the limitation period be extended pursuant to Div 3 subdivision 3 and Sch 5 of the Limitation Act 1969 up to and including 25 May 2001.

6. Set aside the order for costs made in the District Court and in lieu thereof that the plaintiff pay the second and third defendants costs of the application to extend time in the District Court.

7. Order that the opponents pay the claimant's costs of the proceedings in this Court and have certificates under the Suitors Fund Act if otherwise qualified.

14 YOUNG CJ in EQ: Yes, I agree.

15 GROVE J: I also agree.

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LAST UPDATED: 12/03/2003