New South Wales Supreme Court CITATION : Timmis v SWSAHS [2005] NSWSC 1126 HEARING DATE(S) : 4 November 2005 JUDGMENT DATE : 8 November 2005 Common Law Division JURISDICTION : Professional Negligence List JUDGMENT OF : Studdert J DECISION : The costs of the motion are to be the defendant's costs in the cause. LEGISLATION CITED : Limitation Act, ss 60G, 60I CASES CITED : Holt v Wynter (2000) 49 NSWLR 128 Genine Timmis (Plaintiff) PARTIES : South Western Sydney Area Health Service (Defendant) FILE NUMBER(S) : SC 20399/04 L.A. Whalan (Plaintiff) COUNSEL : MJ. Windsor (Defendant) Beilby Poulden Costello (Plaintiff) SOLICITORS : Frances Allpress (Defendant) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST STUDDERT J Tuesday 8 November 2005 20399/04 GENINE TIMMIS v SOUTH WESTERN SYDNEY AREA HEALTH SERVICE JUDGMENT 1 HIS HONOUR: On 8 November 2004 a statement of claim was filed in this court whereby Genine Timmis instituted proceedings against South Western Sydney Area Health Service claiming damages for negligence. The claim arises consequent upon surgery that the plaintiff underwent at Campbelltown Hospital on 26 April 1994. On the plaintiff's case, complications developed following that surgery and these led to bowel obstruction. The plaintiff claims that her treatment following the surgery in April 1994 was inappropriate. 2 By this notice of motion the plaintiff seeks an order for an extension of time pursuant to s 60G of the Limitation Act 1969. 3 The defendant does not oppose the order sought by the plaintiff, but the parties have been unable to agree as to the appropriate order for costs. The plaintiff has submitted that the defendant should pay her costs of the motion; the defendant has submitted that the plaintiff should pay its costs of the motion or, at the very least, that the costs should be the defendant's costs in the cause. These competing submissions call for some consideration of the history of this matter. 4 The plaintiff has relied upon a number of affidavits in support of her claim for relief: there are two affidavits of the plaintiff, each sworn on 4 October 2005; there are two affidavits by her solicitor, Donald Poulden, sworn on 4 October 2005; and, finally, there is an affidavit by Shelley Howes, a solicitor in the employ of the plaintiff's solicitors, sworn 2 November 2005. I do not propose to refer to the detail of those affidavits considered on the present application. However, Mr Poulden deposed to the circumstances in which he met the plaintiff in April 2004 and, after properly seeking counsel's advice, Mr Poulden sought a medical opinion from Dr Arnold Mann in August 2004. Dr Mann wrote on 30 September 2004, and in part his report reads: "After surgery on 24 April 1994 Ms Timmis developed ileal obstruction due to an inguinal hernia. Inguinal herniae can obstruct at any time, and if it was known that she had a hernia, then, when obstruction occurred, one would naturally have looked to that as a cause. In a woman as obese as Ms Timmis it would have been difficult to locate the swelling which must have been present during the period of obstruction, but I would not be prepared to state that failure to diagnose the cause of the bowel obstruction was an indication of an inadequate standard of care unless the patient repeatedly pointed to her inguinal area as the site of the maximum amount of pain during the time she was obstructed. However, from what you tell me, the symptoms of small bowel obstruction were evident at the very latest five days after the operation of 25 April 1994. By 3 May there was ultrasound evidence of small bowel obstruction – and examination of the notes would probably reveal that the diagnosis could have been established much earlier – no later than 30 April. There will always be some time taken to make a diagnosis, but when bowel is strangulated surgical intervention is required within a matter of hours, as with the blood supply to the bowel being interrupted it dies and there is danger of the bowel disintegrating and releasing its contaminated contents causing a devastating peritonitis. A delay in diagnosis of some days for strangulated obstruction is simply unacceptable. To delay up to 15 days and suggest the patient start eating is impossible to understand. It is a credit to the intensive care staff that the patient survived at all. Had the operation been performed before the ileum disintegrated, the septic complications would more likely than not have been avoided. My preliminary opinion is that the patient received less than treatment which accorded with proper practice from Campbelltown Hospital insofar as there was an undue delay in diagnosing small bowel obstruction. The consequence of that was severe septic peritonitis and complications flowing from that including renal failure for a time." 5 Dr Mann made it clear that further reports were necessary and that his report was to be considered as a preliminary one. 6 The affidavit of Shelley Howes annexes a report received from Associate Professor Hunt dated 27 September 2005. For that report Professor Hunt had details of the plaintiff's clinical history taken from the Campbelltown and Liverpool medical records. He wrote: "The correct diagnosis of subacute bowel obstruction was made by the ward intern (Dr Dey) when Mrs Timmis developed abdominal pain and vomiting 4 days after surgery. At that stage it would appear that Dr McCaffrey considered the problem secondary to ileus or possible acute adhesive obstruction and decided on a trial of conservative management. The diagnosis of ileus is untenable in the presence of hyperactive bowel sounds. Generally, when the clinical features point to acute obstruction a 48 hour period of conservative management is accepted and progress abdominal x-rays are performed to check on resolution. The x-rays performs on 3/5/94 clearly confirm the diagnosis of small bowel obstruction but Mrs Timmis appeared to be marginally better and apparently told the nursing staff that she had passed flatus on one occasion suggesting that spontaneous resolution of the obstruction had occurred. When on 5/5/95 she again began to complain of nausea and informed the nursing staff and medical staff that she had passed no flatus the senior medical staff should have recognised that the description of the vomitus, the description of the pain and the failure to progress all pointed to mechanical obstruction and this should have led to more aggressive investigation or return to the operating theatre almost a week before the second operation occurred. Had that occurred there may not have been an ischaemic loop of bowel and faecal spill. In first instance a period of expectant conservative management is reasonable but with failure to progress or recurrent obstruction management is by laparotomy or if the gynaecologist feels that he does not have the experience for that type of procedure then consultation with a general surgeon is mandatory." 7 Professor Hunt concluded: "Based on the information from the hospital records and the history obtained from Mrs Timmis I believe that she has an unchallengeable case against the hospital for failure to provide care in accordance with proper practice as applied at the time of her operation for removal of the ovarian cyst on 26/4/94. The decision to offer a trial of conservative management after the initial diagnosis of subacute obstruction/ileus is acceptable although it runs contrary to most general surgical advice. The failure to respond to the clinical and radiological evidence of recurrent obstruction before the patient developed frank strangulation of the hernia causing septicaemia and acute renal failure is unacceptable." 8 Section 60G of the Limitation Act enables the Court to make an order extending the limitation period "if it decides that it is just and reasonable to do so". Whether it is just and reasonable to extend time depends upon consideration of the various elements of s 60I(1): "(1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii)." 9 Hence, it was necessary for the plaintiff to satisfy this Court of the various elements of s 60I(1)(a). 10 Mr Windsor submitted that it was not possible for the defendant to make an assessment of the plaintiff's prospects of satisfying the requirements of s 60I before the various affidavits and medical reports to which I have referred were served. He submitted that none of that supporting evidence was presented at the time the notice of motion was filed in November 2004; nor was it available at the time the plaintiff's solicitors made a Calderbank offer in their letter of 5 May 2005. In that letter the plaintiff agreed to pay her own costs of the motion and the costs of the defendant associated with the motion up to the date of the letter provided the defendant consented to the order for extension of time. 11 It seems to me that it was not unreasonable for the defendant to withhold consent until it had had a reasonable opportunity to assess the evidence which the plaintiff now has available to it, including the report of Associate Professor Hunt annexed to the most recent affidavit relied upon by the plaintiff, that of Shelley Howes sworn on 2 November 2005. 12 In Holt v Wynter (2000) 49 NSWLR 128, Sheller JA, with whose decision Handley JA and Brownie AJA agreed, said as to costs on an application for an extension of time (at pp 147-148 [121]): "In relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable." 13 It could not be said in my opinion that the defendant's approach to this application was unreasonable and Mr Windsor relies upon the statement of principle from Holt in support of his application for costs of this motion. 14 Ms Whalan, however, submitted that what took this case out of the ordinary was the advice that the plaintiff was given when she inquired about the reasons for her misfortune in attendances at Campbelltown Hospital in 1995. The plaintiff's detailed affidavit of 30 September 2005 addresses this. According to the plaintiff, she attended at the hospital asking to see her file and to inquire why her ovaries had to be removed. A subsequent appointment was arranged at the hospital when the plaintiff was permitted to see her file in the presence of an administrative officer and a doctor. According to the plaintiff, the doctor assured her in the course of that meeting that everything that could have been done for her was done for her and what occurred was unavoidable. Advice to that effect is inconsistent with the medical evidence now available and Ms Whalan relied upon the plaintiff's affidavit, upon which cross examination was not required. 15 The plaintiff's affidavit gives rise to the possibility that the plaintiff may have been misled by hospital staff, but it is not possible to arrive at a finding about this on the present application. Moreover, the plaintiff's meetings with hospital staff took place some nine years before the plaintiff first consulted her solicitor. 16 I took time to consider the question of costs and to read again the evidence in this matter. I have concluded that the most appropriate order in the circumstances of this case is that the costs of this motion should be the defendant's costs in the cause. Hence, that is the order I now make. Formal order 17 The costs of the motion are to be the defendant's costs in the cause. ********** 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.