CATCHWORDS
PRACTICE AND PROCEDURE - application for leave to appeal from interlocutory judgment of ACT Supreme Court judge - factors relevant to granting leave - whether sufficient doubt to warrant appeal being considered by Full Court.
Limitation Act 1985 (ACT) s36
Niemann v Electronic Industries Ltd [1978] VR 431
S & B Pty Ltd v Podobnik (1994) 53 FCR 380
THE AUSTRALIAN CAPITAL TERRITORY v DENISE IVES
NO ACT G4 of 1996
GALLOP, WILCOX, FINN JJ
CANBERRA
26 JULY 1996
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 4 of 1996 DISTRICT REGISTRY )
)
GENERAL DIVISION )
On Appeal from a Judge of the Supreme Court
of the Australian Capital Territory
BETWEEN: THE AUSTRALIAN CAPITAL TERRITORY
Applicant
AND: DENISE IVES
Respondent
COURT: GALLOP, WILCOX, FINN JJ
PLACE: CANBERRA
DATE: 26 JULY 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application for leave to appeal be refused with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 4 of 1996 DISTRICT REGISTRY )
)
GENERAL DIVISION )
On Appeal from a Judge of the Supreme Court
of the Australian Capital Territory
BETWEEN: THE AUSTRALIAN CAPITAL TERRITORY
Applicant
AND: DENISE IVES
Respondent
COURT: GALLOP, WILCOX, FINN JJ
PLACE: CANBERRA
DATE: 26 JULY 1996
REASONS FOR JUDGMENT
This is an application for leave to appeal
from an interlocutory judgment of a single judge of the Supreme Court of the
Australian Capital Territory. That
judgment granted an application made under s36(2) of the Limitation Act 1985 (ACT) ("the Act") that the period of
time be extended within which Mrs Ives, the respondent to this application,
could bring an action for personal injuries against the present applicant,
the Australian Capital Territory ("the ACT"). That cause of action was alleged to have
arisen in March 1974.
There is no apparent disagreement between the parties as to the principles which were to be applied by his Honour in considering the application, or which are to be applied in this leave application.
We do not consider it necessary to consider the requirements of s36(2) in any detail. That task was undertaken by this Court in S & B Pty Ltd v Podobnik (1994) 53 FCR 380. For present purposes all that need be said is that the judicial discretion to extend time can be exercised where it is "just [i.e. fair] and reasonable" so to do, having regard to the factors specified in s36(3). In this instance the applicant placed reliance on s36(3)(b):
"the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant."
As to the leave application itself, it is sufficient to say that we are content to adhere to the practice adopted in a number of decisions of this Court, and to apply what for convenience may be called the Niemann formula:
1. Is the decision appealed from attended with sufficient doubt to warrant it being reconsidered by the Full Court?
2. Would substantial injustice result if leave were refused?
See Niemann v Electronic Industries Ltd [1978] VR 431; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; S & B Pty Ltd v Podobnik, above.
Background
The circumstances which give rise to Mrs Ives' claim are decidedly unusual. On 11 October 1994 Mrs Ives underwent a chest and spinal x-ray for purposes which have no bearing on these proceedings. The chest x-ray revealed the presence of an apparently metallic object in her heart. Later investigation by CT scan and otherwise has produced the conclusion in expert medical opinion that the object is a needle. It will be necessary to refer below to the characteristics this needle is said to possess. They bear directly on the claim advanced by Mrs Ives and on his Honour's decision.
Medical opinion before his Honour was that the needle was unlikely to move from its present location; that surgical removal would require open heart surgery which would be potentially life threatening; and that the needle should be left undisturbed but scanned annually.
Not surprisingly, once the discovery was made, Mrs Ives and her advisers sought to identify the event that was likely to be responsible for the introduction of the needle into her body. On a number of occasions she had received medical treatment involving stitching and/or injections. Importantly, she was given an intracardiac adrenalin injection in 1971.
Mrs Ives finally settled upon the performance of a hysterectomy at the Royal Canberra Hospital on 12 March 1974. The operating surgeon was a Dr Hehir. In the draft statement of claim prepared on her behalf, and which was before his Honour, separate claims in negligence were made against Dr Hehir and the ACT (as successor, since self-government, to the Commonwealth), it now being responsible for the hospital services that were provided at the Royal Canberra Hospital.
The application for extension of time was
unsuccessful in relation to Dr Hehir.
His Honour concluded that the case against him had less strength than
that against the ACT. Coupled with
prejudice created by uncertainty concerning the doctor's insurance cover at the
time, this was sufficient to persuade him that it was not shown to be just and
reasonable to extend time. No cross
application was made in respect of this holding. It should, though, be said that the ACT
relies upon it as a further cause of prejudice to it in that it would now be
unable to claim contribution from Dr Hehir in the event of his being a joint
tortfeasor. The Act (s21(1)(b)) would
appear to preclude such a claim in circumstances such as the present.
In seeking to attribute a cause for the needle lodging in her heart, Mrs Ives necessarily had to advance an hypothesis. While s36(2) of the Act does not, in terms, require the court to make an assessment of the relative strength of an applicant's cause of action, it clearly is permissible for the judge to make some assessment of the applicant's prospects of success: S & B Pty Ltd v Podobnik, above.
Given the role hypothesis plays in this matter, considerable attention was directed both before the trial judge and in this Court to the plausibility of the hypothesis advanced. Two considerations were of particular significance in this. They were (i) the characteristics of the needle itself; and (ii) Mrs Ives' medical history to the extent it involved either injections, or procedures requiring suturing.
The Trial Judge's Conclusions
His Honour had before him the evidence of a number of medical experts as to the characteristics of the needle which were discernible from the various investigations made of it (i.e. the initial x-ray, a CT scan and an echocardiograph). From that evidence he concluded that it clearly was "arguable" that the needle was a "straight suture needle" and was broken. He further indicated that there "is no real support for the hypothesis that it was a hollow needle or a curved needle": Reasons for Judgment, 6.
These conclusions were of particular moment when regard was had to Mrs Ives medical history. That the needle was not curved would eliminate from relevance any suturing procedure involving curved suturing needles. That the needle was not hollow, i.e. that it was not one that could have been used for the purposes of giving an injection, would eliminate injections and in particular the intracardiac adrenalin injection of 1971.
His Honour's conclusion in light of the history before him was that "[t]he only possible source, amongst those so far advanced, is a procedure associated with the operative procedure in March 1974": Reasons for Judgment, p6.
That particular procedure was the insertion of a redivac drain in Mrs Ives' abdominal wound consequent on the performance of the hysterectomy on 12 March 1974. In his affidavit of 30 August 1995 Dr Hehir, the surgeon, swore that in "securing the redivac drain it is most likely that I used a curved needle but a suture on a straight needle could have been used to secure the drain ...": our emphasis. This, we would note, is the only evidence which could relate this procedure to a needle arguably of the type found in Mrs Ives' heart.
It was submitted to his Honour by both respondents to the application before him that "the applicant had not demonstrated a prima facie or, at least, seriously arguable case on liability": Reasons for Judgment, p9. Having revisited his previous conclusions as to the likely characteristics of the needle and the effect those conclusions had on eliminating particular alternative hypotheses, his Honour concluded that the only medical procedure identified which could account for the needle's presence in Mrs Ives' heart was the March 1974 redivac drain procedure. He said that the case for that hypothesis "is not a strong one but it is not hopeless": Reasons for Judgment, p11.
His Honour considered the various s36(3) factors of which he was required to take account. He acknowledged that the lapse of time since March 1974 inevitably created some degree of potential prejudice. Nonetheless that was not sufficient to induce him not to make an order extending time, as Mrs Ives' case was "sufficiently credible" to warrant that extension.
The Application for Leave to Appeal
The trial judge's decision has been challenged on three bases. The first is that the evidence before his Honour would not justify a finding that the needle in the heart resulted from the redivac drain procedure and this was the only hypothesis relied upon by Mrs Ives.
Secondly, the applicant submitted that the most likely source of the needle was the intracardiac injection. To support this submission it was asserted that the evidence as to the characteristics of the needle was less definitive than his Honour concluded. In any event there were other hypotheses for the introduction of the needle into Mrs Ives' body.
Thirdly, the applicant submitted that the lapse of time since 1974 will deny it access to potentially decisive evidence. The theatre records and clinical notes relating to the 1974 procedure - or for that matter some other of the procedures involving Mrs Ives - are now unavailable. Furthermore, it is unlikely that the nurses involved in the 1974 procedure could now be identified or, if they could, would have any effective recall of it.
The ACT additionally submits it is further prejudiced, as we have already noted, by his Honour's decision not to extend time as against Dr Hehir. This, it is said, denies the ACT any prospect of seeking contribution from an alleged joint tort feasor.
It is appropriate to consider the first two submissions together. As to the first - the redivac drain hypotheses - the ACT has properly emphasised those features in the evidence before his Honour which might be said to diminish the supposed cogency of this hypothesis: (a) Dr Hehir's evidence that, even if he used a straight needle, a breakage in it would have been obvious as the abdominal wound would have already been closed at the time of suturing (the length of needle in Mrs Ives' heart could be consistent with only part of a needle being left in her body); (b) there was an equipment checking system in place at the time and items missing or broken were recorded; and (c) the evidence of several doctors was that it was "very" or "most" unlikely that a needle could travel from the pelvic region to the heart.
As we have observed, the judge relied on the characteristics attributed to the needle itself in eliminating hypotheses other than that of March 1974. For this reason, the ACT, again understandably, has sought to emphasise the apparent differences in opinions about the needle's characteristics. It has focussed particularly on the question whether the needle was hollow, the obvious purpose being to bring back into contention other hypotheses and in particular the intracardiac injection.
We do not consider it necessary to set out in any detail the various opinions on the needle given by doctors who investigated the matter. Suffice it to say here that they are not wholly at one on the issues of whether it was hollow or whether it was of a type used in medical procedures, though they do agree that it is both straight and broken. Given the age, location and available means of examining the needle, there must necessarily be some room for doubt and divergence concerning the needle's characteristics. And, at a trial and after further examination, additional medical opinion may either undermine or bolster the arguable view found by his Honour that the needle was a suture needle. What we can say is that the conclusion of his Honour that this view was arguable is consistent with the evidence that was before him. Only Dr Hehir positively suggested that the characteristics of the needle were such to be consistent with an injection (i.e. a hollow) needle. In those circumstances it was open to his Honour to conclude that there was no real support for the hollow needle hypothesis.
Because of this conclusion and the undisputed evidence that the needle was straight, it was open to his Honour to eliminate those events in Mrs Ives' medical history which involved the use of either curved suture needles or hollow needles. It was this process which gave credibility to the March 1974 hypothesis.
Argument before us again traversed both Mrs Ives' medical history and the 1974 insertion of the redivac drain. As to the history, we are unable to express a concluded view whether the March 1974 hypotheses is the only one capable of providing the source of the needle. In September 1964, for example, an episiotomy was performed on Mrs Ives. Her counsel in argument admitted the "possibility" that this may have been the source.
Equally, even in relation to the 1974 hypothesis, it is not altogether clear from Dr Hehir's own evidence (which in this matter seems all that his Honour had to rely upon) whether the procedure involved internal or only external suturing i.e. whether or not it was performed within Mrs Ives' body. Dr Hehir does say in his affidavit that when the suturing occurred "the abdominal wound would have already been closed". Whether this should be taken to mean her body was closed is unclear - the more so given the operative procedures he describes for the hysterectomy (involving various levels of closure) in his affidavit of 30 September 1995. His evidence could well be consistent with suturing outside of the vault created by the hysterectomy but inside the body nonetheless. We are not in consequence prepared to find his Honour to have been in error in accepting as an hypothesis that the needle could have been introduced into Mrs Ives' body during the redivac drain procedure.
Counsel pressed on us the alleged significance of chest x-rays that Mrs Ives underwent in 1965, 1969 and 1973. These - or at least the last - it was submitted might negative the possibility of the 1971 intracardiac injection being responsible for the needle in the heart. Whether or not that x-ray could be so used will be a matter for evidence about the x-ray itself. At the moment, the x-rays have not been located. Even if they are located, and are capable of revealing a metallic object in the heart, the x-rays, but particularly the first two, will not negative the episiotomy as the source of the needle. The reason for this is that, on the evidence, the needle could still have been "travelling" to the heart when they were taken.
Notwithstanding the uncertainties that affect this matter, we do not consider that his Honour was not justified in concluding that the hypothesis advanced by Mrs Ives was a credible one. It may not be the only hypothesis which could explain the presence of the needle. We note, for example, the 1964 episiotomy. But given the evidence as to the characteristics of the needle and the procedures in which such a needle was likely to have been used, the 1974 hypothesis remains a credible one.
It has been said that it would be "most unlikely" for a needle to travel from the pelvis to the heart. However, given the preponderance of evidence as to the needle's characteristics - i.e. it was a suturing needle - this would seem to be a case in which some unlikely event has happened. If a suturing needle, it must have come from somewhere else in her body.
The question, though, is not merely whether Mrs Ives has a possible cause of action, but whether it was fair and reasonable to extend time to allow her to bring a claim on it.
As noted, it is the prejudice factor of s36(3) on which the ACT has relied in this appeal. The two matters raised - loss of evidence and loss of a right to contribution from Dr Hehir - were both raised before his Honour. We have already indicated the reasons why time was not extended in relation to the claim against Dr Hehir. That part of his Honour's judgment is not called into question in this appeal. We do not regard the prejudice relied upon as justifying interference with his Honour's conclusion to extend time.
The prejudice arising from lapse of time referred to by his Honour - and we take this prejudice to relate to loss of relevant evidence (given the submissions made) - was accepted as being inevitable in some degree. But it was not regarded as sufficient to preclude a finding that it would be just and reasonable to extend time.
That conclusion is not one which we can say is attended with sufficient doubt as to warrant it being reconsidered by us.
There is little doubt that a wrong has been committed on Mrs Ives. Given that the needle has clearly been in her heart for a lengthy period, and the adventitious circumstances of its discovery, she is, inevitably, forced to rely upon hypothesis in making out her claim. The factors which compel her to advance her claim in this way contribute to the difficulty in which the ACT would find itself if it had to defend itself against the 1974 hypothesis. Both parties are confronted with difficulties, albeit of differing varieties. His Honour took these into account in the discretion exercised. We are not persuaded that his conclusion is unfair or unreasonable.
We refuse the application for leave to appeal with costs.
I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment of the Court.
Associate
Dated: 25 July 1996
Counsel for the applicant : K Crispen, QC
Solicitors for the applicant: ACT Government Solicitor
Counsel for the respondent : R Thomas
Solicitors for the respondent : pappas, j - attorney
Date of hearing : 16 April 1996
Date of judgment : 26 July 1996
