New South Wales Supreme Court CITATION : Winter & 2 Ors v Locker & Anor [2002] NSWSC 1045 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20323/2001 HEARING DATE(S) : 5 November 2002 JUDGMENT DATE : 8 November 2002 Heath Winter bht Earl Winter (First Plaintiff) Katherine Clinen (Second Plaintiff) PARTIES : Earl Winter (Third Plaintiff) Brett Locker (First Defendant) Mayne Nickless Limited t/as Port Macquarie Base Hospital (Second Defendant) JUDGMENT OF : Master Harrison Mr K Andrews (Plaintiffs) COUNSEL : Mr M Dempsey (Second Defendant) Ms Karen Stott McLaughlin & Riordan (Plaintiuffs) SOLICITORS : Mr M Doepel Minter Ellison (Second Defendant) CATCHWORDS : Amend name of defendant - effective date - medical negligence LEGISLATION CITED : Supreme Court Ruies - Part 20 r 2 Health Care Liability Act 2002 Dandashli v Dandashli (NSWCA unreported, 16 December 1996) CASES CITED : In Re Saunders (1996) 3 WLR 473 McGee v Yeomans [1977] 1 NSWLR 276 Proctor v Jetway Aviation Pty Limited [1984] 1 NSWLR 166 DECISION : (1) The amendment to the name of the second defendant is to take effect from the date of filing the statement of claim, namely 12 April 2001; (2) Each party to pay their own costs of the motion.; (3) The notice of motion filed 22 August 2002, seeking documents and answers to interrogatories, be referred to the next listing in the Professional Negligence list for directions. - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST MASTER HARRISON FRIDAY, 8 NOVEMBER 2002 20323/2001 - HEATH WINTER by his tutor EARL WINTER & 2 ORS v BRENT LOCKER & ANOR JUDGMENT (Amend name of defendant – effective date – medical negligence) 1 MASTER: There are two motions before the court. By notice of motion filed 3 July 2002 the plaintiffs seek an order that the name of the second defendant be amended in accordance with the amended statement of claim pursuant to Part 20 r 2 of the Supreme Court Rules (SCR); and/or in the alternative pursuant to Part 20 r 4 of the SCR. The plaintiffs relied on the affidavit of their solicitor Karen Stott sworn 2 July 2002. 2 By notice of motion filed 2 July 2002 the second defendant seeks an order that the plaintiffs' amended statement of claim be set aside pursuant to Part 11 r 8 of the SCR; or alternatively that the amendment purportedly joining Mayne Nickless Limited as the second defendant be disallowed pursuant to Part 20 r 3 of the SCR; and that the date of commencement of proceedings against Mayne Nickless Limited is the date upon which the amended statement of claim is filed. The second defendant relied on the affidavit of its solicitor Raylee Hartwell sworn 4 July 2002. 3 The second plaintiff is Katherine Clinen and the third plaintiff is Earl Winter who are the parents of Heath Winter, the first plaintiff. The second defendant now named as Mayne Nickless Limited t/as Port Macquarie Base hospital is responsible for the control and management of Port Macquarie Base hospital. The plaintiff alleges that the defendants were negligent in managing the second plaintiff's labour and subsequent birth of the first plaintiff. The first defendant Brett Locker is an obstetrician and gynaecologist. 4 The issue is whether or not the amendment made to the name of the defendant should take effect from the date of filing the original statement of claim, namely 12 April 2001, or from the date that the amended statement of claim was filed, namely 30 April 2002. If the latter date is held to be the effective date, the plaintiffs' damages will be assessed in accordance with the Health Care Liability Act 2002 (the legislation), which came into force on 5 July 2001. Assessment under this statutory regime would be less favourable for the plaintiff. The second defendant submitted that the amendment should take effect from 30 April 2002. 5 The original statement of claim named the second defendant as Mid North Coast Area Health Service. This occurred because the plaintiffs' solicitor had to file the statement of claim with haste so as to commence proceedings before the legislation came into effect. It was on 9 April 2001 that the second plaintiff first made contact with her solicitor. At this time it was the solicitor's understanding that on 17 April 2002 the New South Wales Government introduced a bill into the Lower House which would have the effect of restricting the amount of damages for medical negligence claims. 6 On 10 April 2001, the plaintiffs' solicitor Ms Karen Stott, received instructions to file a statement of claim. The second plaintiff had advised her solicitor that on admission to the hospital she was a public patient. The records received from the second defendant did not contain the name of the hospital. On 11 April 2002, Ms Stott's secretary telephoned the Port Macquarie Base Hospital. She recorded a file note of the conversation which stated "Admin – Hospital is part of the Mid North Coast Area Health Service." It was always the plaintiffs' intention to bring proceedings against the legal entity who was in control and/or conduct of Port Macquarie Base Hospital. On the basis of the advice received from the hospital, the plaintiffs' solicitor formed the view that the correct entity was the Mid North Coast Area Health Service. 7 The next day, namely 12 April 2001, the statement of claim was filed naming the Mid North Coast Area Health service as second defendant. In January 2002 the statement of claim was served at the premises of Port Macquarie Base Hospital and was forwarded to the solicitors for Mayne Nickless ACN 004 073 410 t/as Port Macquarie Base Hospital, namely Minter Ellison. On 12 February 2002 Minter Ellison wrote a carefully worded letter to the plaintiffs' solicitor confirming that Port Macquarie Base Hospital could not accept service for Mid North Coast Area Health Service. The solicitor received the statement of claim after the legislation had commenced. However, it was not until 2 April 2002 that the plaintiffs' solicitor became aware that the Port Macquarie Base Hospital was not a public hospital but a private one, when she was advised of the fact by the solicitor acting for the Mid North Coast Area Health Service. Upon receipt of this information the solicitor acted expeditiously in correcting the mistake. On 30 April 2002, the amended statement of claim was filed. 8 Part 20 r 1 of the SCR provides: "(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings. (3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he were a party. (3A) An order may be made, or leave may be granted, under subrule (1) notwithstanding that the effect of the amendment is, or would be, to add or substitute a cause of action arising after the commencement of the proceedings, but in such a case the date of commencement of the proceedings, so far as concerns that cause of action, shall, subject to rule 4, be the date on which the amendment is made. (4) …" 9 The limitation period has not yet expired. 10 There were a number of technical arguments raised in relation to the interpretation of Part 20 r 1 and Part 20 r 4 of the SCR which are unnecessary to consider in detail, save as to say there would be an anomaly in the rules if an amendment made to the name of a defendant after the limitation period expired could be back dated, but an amendment to the name of a defendant prior to the limitation period expiring could not. Leave to amend can be granted nunc pro tunc (now for then) so as to see that no injustice has been suffered – see Dandashli v Dandashli (NSWCA unreported, 16 December 1996) and In Re Saunders (1996) 3 WLR 473. 11 The power exercisable under Part 20 r 1 is discretionary. In McGee v Yeomans [1977] 1 NSWLR 273 Glass JA (with whom Moffitt P agreed) stated: "I am driven to the conclusion that the Supreme Court Rules, upon their proper construction, displace the settled rule of practice laid down in Weldon v. Neal (1887) 19 QBD 394 and all the finespun distinctions which it engendered. In its place there has been substituted a general discretion to allow an amendment, notwithstanding that it raises a barred cause of action, whenever justice so requires. The exercise of the discretion is unfettered by any rules of practice. It is not possible by judicial decision to establish in advance categories of amendments which it would be just or unjust to allow: cf. Sophron v. Nominal Defendant (1957 96 CLR 469 at 475). The discretion, having been set free, should not again be confined by rigid technicalities. The Court hearing the application will necessarily have regard to the hardship of the plaintiff, if the amendment is refused, and the prejudice to the defendant, if it is granted. It must also consider all other relevant circumstances, such as the fault of the plaintiff or his advisers, the period of time since the limitation has expired, and the defendant's knowledge of the new cause of action or the new capacity." 12 This passage was subsequently quoted with approval by the New South Wales Court of Appeal in Proctor v Jetway Aviation Pty Limited [1984] 1 NSWLR 166 at 173C. 13 It was always the plaintiffs' intention to bring proceedings against the entity who had the care and control of the hospital. It was the plaintiffs' intention to bring the proceedings prior to the commencement of the legislation. 14 In February 2002, solicitor acting for Mayne Nickless knew of the existence of these proceedings and was aware that the identity of the second defendant referred to in the statement was incorrect. Nevertheless, the second defendant did not chose to advise the plaintiffs' solicitor of any error but elected to wait until the plaintiffs' solicitor found out their mistake by other means. However, if the amendment takes place from the latter date, the second defendant will receive a benefit in that any damages they may have to pay if found negligent at trial will be of a lesser amount. After taking into account the circumstances outlined above, it is my view that justice is best served if the amendment to the name of the second defendant takes effect from the date of the filing of the statement of claim, namely 12 April 2001. 15 Costs are discretionary. As it was the plaintiffs' mistake that led to the amendment being made and the second defendant was unsuccessful, the appropriate order for costs is that each party pay their own costs of the motions. 16 The orders I make are: (1) The amendment to the name of the second defendant is to take effect from the date of filing the statement of claim, namely 12 April 2001. (2) Each party to pay their own costs of the motions. (3) The notice of motion filed 22 August 2002, seeking documents and answers to interrogatories, be referred to the next listing in the Professional Negligence list for directions. ********** Last Modified: 11/12/2002 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. 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