New South Wales Supreme Court CITATION : Alchin v Den Houting & Anor [1999] NSWSC 424 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 16133/90 HEARING DATE(S) : 28 April 1999 JUDGMENT DATE : 11 May 1999 Colin Allan William Alchin (Plaintiff) PARTIES : Peter Den Houting (First Defendant) Griffith Base Hospital (Second Defendant) JUDGMENT OF : Master Harrison Ms M Sneddon (Plaintiff) COUNSEL : Mr F Curtis (Defendants) Denniston & Day, Wagga Wagga (Plaintiff) SOLICITORS : Ms K Lalich of Colin Biggers & Paisley, Sydney (First Defendant) Ms R Greenland of Lynn Boyd Solicitors, Sydney (Second Defendant) CATCHWORDS : Dismiss statement of claim Birkett v James [1977] 2 All ER 801; AC 297 at 318 Witten v Lomard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411 CASES CITED : Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491 McKenna v McKenna [1984] VR 665 Stollznow v Calvert [1980] s NSWLR 749 Clarke v Sippe & Ors (NSWSC, unreported, 6 May 1998) DECISION : See para 27 13 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON TUESDAY, 11 MAY 1999 16133/90 - COLIN ALLAN WILLIAM ALCHIN v PETER DEN HOUTING & ANOR JUDGMENT (Dismiss statement of claim) 1 MASTER: By notice of motion filed 12 March 1996 the first defendant seeks that the statement of claim be struck out for want of prosecution and by notice of motion filed 2 April 1996 the second defendant seeks the same order. The first defendant relied on the affidavits of William John Hawson sworn 12 March 1996. The second defendant relied on the affidavit of his solicitor Sarah Marie Henry sworn 28 March 1996 and Rowena Mary Greenland sworn 19 February 1999. The plaintiff relied on three affidavits of Colin Lawrence Day sworn 25 June 1996, 22 September 1998 and 23 April 1999 and the affidavit of Janice Margaret Dawson sworn 23 April 1999. 2 The defendants' motions came before the court on various occasions in May, June and July 1996. On 2 July 1996 they were stood over generally. On 30 April 1996 the plaintiff's current solicitor came onto the record. These motions were relisted on 24 September 1998 when the following orders were made: (1) The plaintiff was to serve further medical reports on or before 17 December 1998. (2) The plaintiff was to file a notice of motion seeking to file an amended statement of claim on or before 5 February 1999. (3) The motion was stood over to 19 February 1999. (4) The plaintiff was to pay the defendants' costs. 3 On 19 February 1999 the matter was adjourned for hearing on 28 April 1999. At this hearing the plaintiff's counsel sought leave to file a notice of motion seeking to file an amended statement of claim, despite being ordered to do so by 5 February 1999. The defendants opposed the filing of the notice of motion. They were not ready to argue whether an amendment to the statement of claim should be permitted. Although I was inclined to allow the filing of the notice of motion, I reserved this issue because if the proceedings are dismissed by virtue of the motions already on foot the determination of the additional motion is futile. If the proceedings are not struck out, it was agreed that if I granted leave to file the notice of motion, the defendants should be given an opportunity to file affidavit evidence and the motion should be listed for hearing at a future date. 4 I turn briefly to the history of this matter. By statement of claim filed 29 October 1990 the plaintiff alleges that on 11 July 1985 he was involved in a motor vehicle accident. He was admitted to Griffith Base hospital (the second defendant) suffering from orthopaedic and head injuries. On 16 July 1985 the plaintiff underwent a left ankle operation performed by the first defendant at Griffith Base hospital. The plaintiff alleges that he suffered gross disablement of the left lower limb as a result of the negligence of the defendants. 5 The particulars of negligence contained in the statement of claim are that the first defendant allegedly failed to properly diagnose and carry out reasonably competent surgery on the plaintiff's fractured left ankle; failed to properly supervise and monitor the plaintiff during the post operative period and failed to seek competent assistance and advice when the plaintiff's condition deteriorated post operatively. The second defendant allegedly failed to properly control and supervise the first defendant in the course of his treatment of the plaintiff; failed to properly supervise the first defendant in his post operative care of the plaintiff and failed to ensure that the plaintiff received proper and reasonable medical care after the operation. The first defendant filed a defence on 14 April 1993 and the second defendant filed a defence on 27 December 1990. Both the first and second defendants requested answers to particulars in 1990 and 1991. The plaintiff's solicitor answered the second defendant's request in about June 1992 to the second defendant (although the second defendant maintains that some questions remain unanswered) and the first defendant's request for particulars on 22 September 1992. 6 On 7 December 1990 the plaintiff personally uplifted 13 x-ray films taken at the hospital between 1985 and 1986 (the earlier x-rays). The plaintiff signed the hospital radiology department release register. These x-rays now cannot be located. 7 Meanwhile, without the claim being fully particularised and without the benefit of the plaintiff's expert reports on liability, the first defendant obtained a medical report from Dr Sturrock dated 13 December 1990. Dr Sturrock in that report commented that although the plaintiff brought a large number of x-rays to the examination, there were no recent x-rays. Dr Sturrock sighted the original x-ray taken on 11 July 1985. He concluded that the plaintiff's major disability is due to the compound fracture dislocation of his left ankle and there would have been "very little difference no matter who looked after him". Dr Sturrock wrote further reports of 23 April 1992 and 3 March 1994. In the last report, the doctor had examined the plaintiff and was shown x-rays dated 18 November 1993 by the plaintiff. Once again Dr Sturrock said: "In my opinion the condition of the lower part of his left leg was doomed following the accident in that there is no adequate treatment that would have prevented the serious disability which he now has. The fact that the fracture of the ulna has not united is not attributable to any failure in the method used, that is internal fixation. The ulna is notorious in not uniting and he now required a bone graft for his ulna at some state in the future. Amputation is the treatment that the patient now wishes to have and I agree that this is necessary." 8 Dr Hughes examined the plaintiff and wrote a report for the first defendant on 18 March 1994. Dr Hughes noted that he saw only one x-ray dated 18 November 1993. Dr Hughes stated: "…At this stage I can only make some preliminary comments, as I really need to see this man's original x-rays and x-rays taken before and after the alleged fall in the hospital during treatment. At this stage my main observation is that in view of the severe nature of this man's initial injuries, I consider the appropriate course of action would have been for him to be stabilised at Griffith Hospital, and transferred to (for example) Wagga, which I understand is approximately 160 km away. He could have been transferred quite safely there in a few hours without any serious risk, after his general condition was stabilised. There he could have been operated on by an experienced orthopaedic surgeon. I note that Dr Den Houting is not a trained orthopaedic surgeon, and I think it is unwise for somebody who is not a trained orthopaedic surgeon to treat such severe orthopaedic injuries. However, this is not to say that Dr Houting (sic), having made a decision to treat this man, was negligent in the way he treated him. Infection is an unfortunate complication of a compound fracture, and no matter how careful the treatment is, infection can sometimes occur. This does not imply that any negligence has been involved in the treatment. In this particular case, this man would have ended up with severe residual disability of his left lower limb whatever treatment was carried out. I am unable to say at this state, without seeing the x-rays, why he has developed a mal-union of the fracture of the left femur..." 9 The plaintiff has served a report dated 28 April 1992 of Dr Nicholls, an orthopaedic surgeon who had treated him once. Dr Nicholls reported that he did not have details of the operative procedures undertaken. It appears that he viewed x-rays but he did not specify which ones they were. It is his view that the major ongoing problem was the result of an infection in the plaintiff's injured left ankle joint resulting in joint surface destruction and the need for subsequent surgery to the ankle. Dr Nicholls commented that the operative or post-operative infection following internal fixation or other operative treatment to fractures is an uncommon though recognised complication of such surgery. 10 Dr Pike has written a report dated 13 May 1992 but he viewed only recent x-rays. Dr Robinson who wrote a report dated 5 February 1991 appears to have been a treating orthopeadic surgeon. His report does not refer to any x-rays and is largely unhelpful. 11 On 13 August 1996 Dr Roebuck orthopaedic surgeon, provided the plaintiff's solicitor with a written report. He commented that: "X-rays of the left ankle that are available show non reduction of a fracture of the talus associated with a fracture through the body of the talus and gradual collapse of the body from avascular necrosis and absorption. The final films shows the lower end of the tibia articulating with the osscalsus and residual neck and head of the talus riding anteriorly." 12 Dr Roebuck also commented that a necessary x-ray view was not taken after the last attempt at reduction which was 27 July 1985. He went on to say that it seemed possible that because this x-ray was not taken it was thought that all was well and this was a mistake. 13 As previously stated the earlier x-rays cannot now be found. On 14 May 1996 the plaintiff's solicitor asked the plaintiff the results of his search for x-rays and the plaintiff informed him that a search was to be conducted at his sister's house at Narrandera, although he recalled having personally delivered the x-rays to Dr Sturrock on the occasion he attended an examination on behalf of the first defendant. On 9 May 1996 the plaintiff told Ms Dawson, a clerk in the employ of his solicitor, that he remembered giving Dr Sturrock the earlier x-rays and being sent downstairs for fresh x-rays. On 30 June 1996 the plaintiff repeated to his solicitor that he took the x-rays to an appointment with Dr Sturrock in Sydney. At the conclusion of the examination the plaintiff recalled being directed to a radiologist who was located at the time in the same building as Dr Sturrock's rooms. The solicitor has made enquiries of Sydney X-rays and the x-rays are not there. On 9 May 1996 Ms Dawson made enquiries of Dr Hughes' secretary who practices in the same building as Dr Sturrock. Dr Sturrock has retired and she knew of no way of contacting him. Ms Dawson checked with Wagga Base hospital x-ray department, Dr Vander Ryt's secretary and Dr Alan Nicholls and Narrandera district hospital without success. 14 In 1990 Dr Sturrock viewed the 13 x-rays taken between 1985 and 1986 (earlier x-rays) and provided a report favourable to the defendant as it is his opinion that the fact that the fractures of the ulna had not united is not attributable to the internal fixation method used. Dr Sturrock does not mention whether the defendants' treatment in relation to an infection was proper and this subsequently has become an issue. Dr Hughes did not see the earlier x-rays. He commented on the infection but is unable to comment in relation to the malunion of the left femur without seeing these earlier x-rays. Dr Pike reviewed only recent x-rays. 15 Although Dr Roebuck does not stipulate which x-rays he viewed, his report seems to indicate that he saw some of the x-rays taken prior to 27 July 1985. If this is so, it would seem that the plaintiff had the 13 x-rays in his possession in 1996 ie., well after he took them to Dr Sturrock. In light of this inconsistency, the evidence of the plaintiff explaining whether or not the earlier x-rays were provided to Dr Roebuck was vital. It has not been given. The plaintiff has not sworn an affidavit. 16 I turn to the law. The defendants submitted that the plaintiff has breached the Supreme Court Rules namely Part 16 rules 1 and 4 in failing to provide particulars; Part 36 r 13A(3) in failing to provide experts reports and Part 33 r 6(2) and (3) in failing to comply with court orders made on 24 September 1998 and in failing to serve proper Part 33 particulars. 17 The power of the courts to dismiss an action for default or want of prosecution should be exercised only where the plaintiff's default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer's part giving rise to a substantial risk that a fair trial would not be possible due to serious prejudice to the defendants: Birkett v James [1977] 2All ER 801; AC 297 at 318. In each case, a balance must be struck between the plaintiff and the defendant and the court must decide whether or not, in all the circumstances, justice requires that the proceedings should be dismissed: Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491; McKenna v McKenna [1984] VR 665. 18 In Stollznow v Calvert [1980] 2 NSWLR 749 Moffitt P held that the discretion to dismiss proceedings for want of prosecution is to be exercised for each case upon its own facts by deciding whether, on striking a balance between the plaintiff and the defendant, justice demands that the action should be dismissed. The judgment makes it clear that the discretion is not confined and that authority does not and cannot establish the weight to be given to particular classes of facts or circumstances. 19 Applications of this kind recurringly return attention to particular kinds of considerations, namely that the conduct of a plaintiff himself and his contribution to delay is considered separately from conduct, contribution and defaults of his solicitor, but it is not the law that a litigant has no involvement in his solicitor's shortcomings or that they are not relevant. It is not the responsibility of a litigant to ensure that his opponent is adequately represented or to point out steps which his opponent's representatives ought to take to advance the claim against him. In relation to delay, the longer it continues the more difficult becomes the determination of factual issues because dim memories and unavailable witnesses render the elucidation of the truth more difficult to ascertain. Prejudice both actual and presumed should be considered. 20 In Clarke v Sippe & Ors (NSWSC, unreported, 6 May 1998) Sully J, in relation to an appeal from a decision that proceedings be struck out for want of prosecution stated: "I think that it would be entirely wrong in principle to permit the present plaintiff to have the benefit of a pleading which fails even to attempt that proper particularisation of which the relevant Rules speak. I would myself be inclined to take such a view in any event, for the reason that, in my own view, the time has come for the Court to insist, albeit within those limits that prudence and fairness might suggest to be appropriate in individual cases, upon the general proposition that the Rules mean what they say, and therefore ought in general to be enforced firmly and according to their tenor. The propriety and the efficacy of such an approach are strengthened, so far as I am concerned and in the present particular case, by the considerations of time to which I have already referred. There is something badly wrong with the course of curial proceedings that permits such a claim as the plaintiff now asserts to limp along for twelve or thirteen years, not only without then achieving a final result, but without so much as achieving finality in the pleadings, and in the proper and efficient crystallisation of issues for trial." 21 I turn to the exercise of discretion to grant the relief sought in the motion. The plaintiff's counsel stated that all the reports with the exception of a possible one have been served. This indicates that the plaintiff has still not complied with the timetable set by the court on the last occasion. It is also true that the plaintiff did not comply with court orders in respect of the filing of the notice of motion and Part 33 particulars. When a timetable was set on the last occasion before the court, the fact that the plaintiff resided in Townsville was taken into account. Neither the plaintiff nor his solicitor has not offered any explanation as to why these orders were not complied with. The Part 33 particulars which were filed on 8 April 1999, two months after the due date and are incomplete. In relation to the claim of economic loss pleaded in the Part 33 particulars, there are no details of the amount he has earned when he has been employed by several employers. He is relying on comparable employees' wage records of truck drivers yet none have been supplied. He makes a claim for domestic and personal care. No reports have been served as to the type of care needed and the number of hours per week required. As the plaintiff may be facing amputation of his left foot, these claims may be substantial. There may still be some particulars outstanding at least so far as the second defendant is concerned. 22 According to the defendants, the effect of the combined breaches is that over 13 years after events occurred and over 8 years since the proceedings have been commenced the defendants are not aware of the case they have to meet. As far as the plaintiff is concerned he has particularised his claim and served all but one of his reports. I do not accept that the defendants do not know the case they have to meet but I do accept that after 13 years the memories of the doctors and hospital staff and the plaintiff will have dimmed. I accept that there is presumptive prejudice which has been caused by the plaintiff's failure to prosecute these proceedings with due dispatch. 23 The defendants also submitted that they were irredeemably prejudiced and cannot now obtain a fair trial because the x-rays which formed the crucial determination to operate are not available having been taken from the second defendant by the plaintiff. Without those early x-rays the defendants submitted that there is no proof of what was done, how it was done whether the x-rays themselves were taken and what else they should have done. There is no indication as to the seriousness of the plaintiff's ankle condition upon his arrival at the hospital and then following surgery. 24 The defendant also submitted that the particulars provided of negligence are "of the usual form" and so general as to be useless. I give little weight to this submission with respect, the particulars that were requested were general so it could have been anticipated that general answers would be given. 25 It is a drastic step to deprive the plaintiff of the opportunity of having a trial on its merits particularly where the plaintiff may be facing amputation of his left foot. The defendants have not provided evidence to show that they cannot locate Dr Sturrock. It appears that Dr Sturrock and maybe Dr Roebuck have seen the earlier x-rays. These x-rays can no longer be located having been released into the plaintiff's possession. The blame for the loss of the x-rays rest with the plaintiff. It is my view that the x-rays are of crucial importance for the defendants to properly prepare their case and the reports of Dr Sturrock do not overcome the difficulties occasioned by the loss of the earlier x-rays. There is now no radiological evidence, no proof of what was done during the operation and the condition of firstly the left ankle after the motor vehicle accident and upon arrival at hospital and secondly after the operation. This leads me to the conclusion that the defendants will be unable to have a fair trial and that they have suffered significant prejudice. Additionally the plaintiff has failed to comply with a court imposed timetable and has provided no adequate explanation to the court for this default. 26 I have reluctantly come to the view that justice is best served if the proceedings are dismissed. Costs should follow the event. The plaintiff is to pay the defendants' costs of the motions and the proceedings. As the proceedings have been dismissed, I need make no orders in relation to the plaintiff's notice of motion seeking to amend the statement of claim. 27 The orders I make are: (1) The proceedings are dismissed. (2) The plaintiff is to pay the defendants' costs of the motion and of the proceedings. ********** Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.