GREENWELL V SOUTHLAND DISTRICT HEALTH BOARD HC CHCH CIV-2010-425-000168

GREENWELL V SOUTHLAND DISTRICT HEALTH BOARD HC CHCH CIV-2010-425-000168 19 December 2011IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2010-425-000168BETWEEN CAROLE ANNE GREENWELLPlaintiffAND SOUTHLAND DISTRICT HEALTHBOARDDefendantHearing: Determined on the papers(Heard at Christchurch)Appearances: R Chapman for PlaintiffA K Miller for DefendantJudgment: 19 December 2011JUDGMENT OFASSOCIATE JUDGE OSBORNEas to leave to proceed[1] The plaintiff wishes to sue the defendant for damages as a result of impact on her health which she says she suffered as a result of breaches of duty on the part of the defendant. She pleads conduct by the defendant from 3 April 2004.[2] This proceeding was commenced on 1 April 2010 when the plaintiff filed her application for leave to proceed pursuant to s 4(7) Limitation Act 1950 (which is the statutory provision which applied).The jurisdiction to grant leave[3] Section 4(7) Limitation Act 1950 provides –4 Limitation of actions of contract and tort, and certain other actions...(7) An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought with the consent of the intended defendant before the expiration of 6 years from that date:Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay.The notice of opposition as withdrawn[4] The defendant initially filed opposition to the application for leave. The defendant contended that leave should not be granted under s 4(7) because –[a] The plaintiff has not established that the delay in bringing this proceeding was occasioned by a mistake of fact or a mistake of law or by any other reasonable cause;[b] The defendant has been materially prejudiced by the delay;[c] This is not a case in which it is just for the Court to exercise its discretion to grant leave as the claim discloses no reasonably arguable cause of action and there is no prospect of the claim succeeding.[5] The defendant has now by memorandum of counsel advised that it seeks leave to withdraw its notice of opposition, having obtained some but not all evidencerelevant to the plaintiff's application and underlying statement of claim. It expressly reserves its right to plead the provisions of the Limitation Act 1950 and issues ofdelay as affirmative defences to the plaintiff's claim.[6] It is appropriate that I grant leave to the defendant to withdraw its notice of opposition and I do so.[7] Notwithstanding the withdrawal of the notice of opposition it is necessary that the plaintiff satisfy the requirements of s 4(7) of the Act. In other words, the plaintiff must satisfy me that one of the grounds in the proviso to s 4(7) of the Act(such as that the defendant has not been materially prejudiced in its defence or otherwise by the delay) and that it is just to grant leave.Are the requirements of s 4(7) met?[8] The evidence in support of the application for leave comes from the plaintiff herself and from John Michael Miller, a solicitor who specialises in ACC claims and acted for the plaintiff in an unsuccessful ACC claim. It is convenient to refer first toMr Miller's affidavit.[9] Mr Miller exhibits the findings of the Reviewer under the Injury Prevention, Rehabilitation and Compensation Act 2001 dated 12 September 2005 and the judgment of the District Court, on appeal, dated 17 September 2007. Mr Millersummarises the Court's findings that –1. The weight of medical opinion supported the proposition that unnecessary pain and stress during hospital treatment caused the severe tinnitus from which the plaintiff was suffering.2. The tinnitus was not in itself a physical injury.3. Because the tinnitus was not in itself a physical injury, it could not have ACC cover or attract any entitlement unless it was caused by another physical injury.[10] While Mrs Greenwell had succeeded in showing that the tinnitus was caused by her treatment she was unable to show that it was an injury within the definition of the IPRC Act.[11] Mr Miller thereafter advised the plaintiff in relation to other procedures including her right to sue the hospital for damages. In November 2007 he advised the plaintiff –You have six years in which to sue the hospital from the date of treatment, so that gives you to 2010. So there is ample time.[12] The plaintiff herself has provided in much more detail her medical history including in relation to her admission to Southland Hospital in April 2004. Following her treatment at the hospital she has suffered tinnitus, initially severe and in more recent years, six years on, not so bad. She refers to a number of other conditions that she has also been suffering since the hospital admission and the onset of tinnitus. Reports she has exhibited indicate that she has been severely affected psychologically during these years which one report indicates is "clearly related to the events which occurred in hospital".[13] Finally the plaintiff refers to the advice she received from her solicitor in 2007 which led her to understand that she had until 2010 to commence her proceeding against the defendant. She says that the two-year time limit contained in s 4(7) of the Limitation Act was not explained to her.[14] The defendant did not file any evidence either as to any material prejudice caused by the delay or otherwise.Conclusion[15] The delay in bringing this proceeding has been explained by the plaintiff'smistake (upon advice) as to the period in which she had to commence this proceeding. But that appears to me to be a mistake of precisely the kind identified in s 4(7) as excluded from the leave provision.[16] That said, there is no evidence to suggest material prejudice to the defendant as a result of the delay. The evidence discloses that at points during the period ofdelay the defendant would have been aware of the plaintiff's complaints as toperformance of the defendant and its staff. For instance, the evidence relevant to theplaintiff's claims and any response to it was gathered and produced to the defendant in 2005 which answered the plaintiff's complaints to the Heath and DisabilityCommissioner.[17] I find that the defendant has not been materially prejudiced by the delay. Thedefendant's withdrawal of the opposition to leave reinforces that conclusion.[18] It is just that the plaintiff has leave to bring the proceeding.Costs[19] The granting of leave is a matter of indulgence. Notwithstanding the relatively late withdrawal of opposition by the defendant the most appropriate course would appear to be that the costs of the application for leave lie where they fall. In the event that the parties cannot agree on the treatment of costs in relation to the application, any party applying for costs is to file and serve a memorandum (maximum four pages) with the respondent to within five working days thereafter file and serve its submissions (maximum four pages).Orders[20] I order –[a] Leave is granted to the plaintiff to bring this proceeding.[b] The proceeding is to be treated as having being brought on 1 April 2010 when the statement of claim herein was filed.____________________Associate Judge OsborneSolicitors:Johnston Lawrence – roger@johnlaw.co.nz lisa@johnlaw.co.nzBuddle Findlay – anita.miller@buddlefindlay.com