New South Wales Supreme Court CITATION : Bell v Central Coast Area Health Service & Anor [2002] NSWSC 57 CURRENT JURISDICTION: Common Law Division Professional Negligence List FILE NUMBER(S) : SC 20241 of 2001 HEARING DATE(S) : 5 February 2002 JUDGMENT DATE : 15 February 2002 Stuart Graham Bell (Plaintiff) v PARTIES : Central Coast Area Health Service (First Defendant) Dr Ian Stokes (Second Defendant) Dr John Morton (Proposed Second Defendant) JUDGMENT OF : Master Malpass Mr A C Bridge SC/Mr R Wood (Plaintiff) COUNSEL : Mr M Fordham (First Defendant) Mr G B Evans (Second Defendant and Proposed Second Defendant) MBP Legal SOLICITORS : McCrohon Bergseng Partners (Plaintiff) Leitch Hasson Dent (First Defendant) Tress Cocks & Maddox (Second Defendant and Proposed Second Defendant) CATCHWORDS : Extension of limitation period - sufficiency of explanation - no question of principle. LEGISLATION CITED : Limitation Act 1969, s 60C, s 60E. CASES CITED : N/A DECISION : See paragraph 27. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST Master Malpass FRIDAY 15 FEBRUARY 2002 20241 of 2001 Stuart Graham Bell v Central Coast Area Health Service & Anor JUDGMENT 1 Master Malpass: On 2 April 2001, the plaintiff filed a Statement of Claim in this Court. He seeks the recovery of damages. The claim is founded on medical negligence. It relates to the treatment received in respect of an injured right ankle. 2 The process named two defendants. The first defendant was Central Coast Area Health Service which operated, controlled and managed Gosford District Hospital. The second defendant was Dr Ian Stokes. 3 At the time of the filing of the Statement of Claim, the relevant limitation period had expired. It expired in January 2000. 4 Before the court, is a Notice of Motion filed by the plaintiff. The relief now sought is that contained in a Further Amended Notice of Motion filed on 18 September 2001. This Notice of Motion was heard on 5 February 2002. 5 By consent, leave was given to discontinue against Dr Stokes and he was dismissed as a party to the proceedings. 6 The plaintiff seeks to add Dr John Morton as the new second defendant. He was a legally qualified medical practitioner carrying on practice as a specialist orthopaedic surgeon in Gosford and held the position of visiting medical officer with the first defendant. 7 The plaintiff seeks an extension of the relevant limitation period as against both the first defendant and Dr Morton. The extension is sought pursuant to s 60C of the Limitation Act 1969 (the Act). If this application is successful, leave is being sought to file an Amended Statement of Claim. 8 Both the first defendant and Dr Morton oppose the application for extension of time. If the application is successful, Dr Morton does not oppose the filing of the Amended Statement of Claim and the adding of him as a second defendant to the proceedings. 9 The plaintiff has read a large number of affidavits. He also tendered medical reports. There was no cross-examination. 10 Because of the limited nature of the opposition, it is not necessary to repeat much of the detail that can be found in this material. It suffices to simply refer to a few relevant facts. 11 The plaintiff injured his right ankle in an accident at his home. He was taken to Gosford District Hospital. During the period of his admission, he was first under the care of Dr Stokes and then later under the care of Dr Morton. He was under the care of Dr Morton at the time of his discharge. He was discharged on 14 January 1997. It is his case that he was discharged with an infected right ankle (this was later said to be Methicillin resistant staphylococcus aureus). 12 There followed many months of treatment (including surgery). It is claimed inter alia that he was left with ongoing pain, scarring and disability. In substance, his case is that if he had been given appropriate treatment, the consequences would not have been so great. A significant part of his claim is said to be a component of economic loss. 13 It appears that the plaintiff instructed his present solicitors shortly after his discharge from hospital (in about February 1997). The solicitors were aware of the limitation period and when it expired. The affidavits provide detail of what happened as the expiry date approached. A Statement of Claim was drafted by counsel and processed by the solicitors. The proceedings were to be commenced in the District Court. 14 Prior to the expiry of the limitation period, the Statement of Claim (together with a cheque for the filing fee) was sent to agents for filing. The agents did not report back to the solicitors. The cheque was not presented and whatever happened to the Statement of Claim still remains a mystery. 15 Following the forwarding of the process to the agents, the solicitors proceeded on the basis that the Statement of Claim had been filed and continued with the preparation of the plaintiff's case. 16 It was not until 25 October 2001 that discovery was made of the fact that the Statement of Claim had not been filed. 17 The failure to file the Statement of Claim within the limitation period was the responsibility of the solicitors. The material purports to explain that failure. It presents inter alia a picture of a busy practitioner conducting his work "in a reactive manner". What emerges is not a satisfactory state of affairs. He "did not diarise ahead the need to chase up the filing of the Statement of Claim" or any relevant steps. The explanation does not even advert to the matter of service. 18 Section 60C provides that the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines. Section 60E provides inter alia that in exercising the powers conferred on it by s 60C the court is to have regard to all the relevant circumstances of the case (including, to the extent that they are relevant, those set forth therein). 19 Both the first defendant and Dr Morton contend that what is offered to explain the delay is inadequate. In addition, on behalf of Dr Morton, some limited argument of prejudice was advanced. 20 It is said that there is no explanation whatsoever from the plaintiff himself. His evidence is silent as to the matter of the limitation period. 21 The first notice of the claim had by the first defendant was in November 2000. In the case of Dr Morton, the first notice came in August 2001. The complaint was made that after October 2000, rather than promptly proceeding with the issue of proceedings, the solicitors proceeded with the preparation of the case for the plaintiff and did not commence the proceedings until April 2001. In addition, it is said that what they were about was the preparation of a somewhat different case to be prosecuted in the Supreme Court. 22 Valid criticism may be made of the lack of explanation from the plaintiff himself and of the conduct of his solicitors. Although he does not expressly say so, it appears from the material that he placed the matter in the hands of his solicitors and left the conduct of it in their hands. Until about November 2000, like his solicitors, it appeared that he may have laboured under the belief that process had been filed within the limitation period. 23 In the course of argument it was said that the plaintiff has a good cause of action against his solicitors and that he should be left to pursue his rights against them. There is authority on this matter of long standing. It is to the effect that the existence of such a cause of action is a relevant matter but it is one which is to be regarded as having little weight. 24 Neither the first defendant nor Dr Morton has placed any evidence before the court. There is no evidence of actual prejudice. Nothing was said about presumptive prejudice. What has been said on behalf of Dr Morton goes to the late notice of the claim and the difficulty that he may have now in dealing with inter alia the large economic claim. 25 It may be that the task confronting Dr Morton is now a little more difficult. However, there is no evidence of loss of documentation or witnesses. It seems to me that, despite what has happened, a fair trial can still take place. 26 The plaintiff bears the onus of demonstrating an entitlement to relief. When regard is had to all the circumstances of this case, I am satisfied that the court should decide that it is just and reasonable to make an order and that an order should be made. 27 Leave is given to add Dr John Morton as the second defendant in the proceedings. Leave is given to file an Amended Statement of Claim in the form of Annexure A to the affidavit of Christine Louise Perry sworn on 22 August 2001. I direct that any such Amended Statement of Claim be filed on or before 1 March 2002. The limitation period for the causes of action pleaded in the Amended Statement of Claim is extended up to and including 1 March 2002. The plaintiff is to pay the costs of the Notice of Motion. 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