No grounds for late claim – Coffey v Murrumbidgee Local Health District

Author: Matthew Renwick
Judgment date: 27 September 2019
Citation: Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2019] NSWSC 1265
Jurisdiction: Supreme Court of NSW – Common Law

Principles

• The assessment of the conduct of a defendant professional cannot occur in the context of section 5B of the Civil Liability Act without reference to section 5O. Section 5O, absent any finding of irrationality, qualifies the operation of section 5B and determines the standard of care to be applied.
  
  
• Where a claim is prima facie statute barred, a plaintiff may be required to demonstrate that they undertook reasonable steps to discover a cause of action within a reasonable timeframe.

Background

James Coffey was born severely premature at Wagga Wagga Base Hospital on 19 January 2004. James has brain damage allegedly arising from his premature birth at 27 weeks plus gestation. His mother, Kathleen Coffey had a complicated obstetric history, having previously given birth to three premature babies. Ms Coffey's pregnancy with James was classified as high-risk.

It was principally alleged that it was contrary to competent professional practice and policy for the hospital to manage the latter stages of the Kathleen’s pregnancy, and that she ought to have been transferred to Canberra Hospital once contractions commenced on 5 January 2004 due to the risk of premature birth. It was not alleged that any precautions could have been taken to avoid or reduce the risk of premature birth, but rather neonatal management at Canberra Hospital would have resulted in a better outcome. It was also not alleged that there was any prospect of transfer occurring on 19 January 2004 once labour had commenced.

Kathleen also brought proceedings for nervous shock arising from the circumstances surrounding James' birth and subsequent events.

Supported by expert opinion, a defence under section 5O of the Civil Liability Act 2002 (NSW) was pleaded by the hospital in respect of the overriding allegation that there was a failure to transfer Kathleen to Canberra Hospital at an earlier time, as well as in respect of discrete individual allegations akin to the overriding allegation. It was the hospital's case that the supporting expert opinion, absence a finding of irrationality, was to set the standard of care by which the hospital's conduct would be assessed.

In addition, the hospital pleaded a limitation defence that the proceedings were not maintainable as they were commenced more than three years after the cause of action was discoverable. In the two years following James' birth Kathleen obtained legal advice and two unfavourable expert opinions on the prospect of a cause of action against the hospital. The investigations entered dormancy until February 2011, when a further favourable expert opinion was obtained and proceedings were commenced in March 2011, more than seven years after the birth.

Decision

Section 5O

Evidence was led by the hospital that the relevant clinical indication for antenatal transfer was the presence of a risk of imminent preterm delivery. It was the unchallenged opinion of the hospital's experts and staff that at no point prior to 19 January 2004 was Ms Coffey in preterm labour, let alone threatened preterm labour. It was the hospital's case that Kathleen's high-risk pregnancy alone did not as a matter of practice, policy or medical necessity warrant transfer.

Ms Coffey contended that she was in threatened preterm labour on 5 January 2004, thereby warranting transfer. Evidence was led from her own experts as to the definition of threatened preterm labour. His Honour discerned that Ms Coffey fell short of this definition, and that her own evidence did not support the allegation that transfer was indicated.

His Honour concluded that the evidence led by the hospital ultimately spoke with one voice, and in the absence of any evidence to the contrary by Ms Coffey, an absolute defence under section 5O was established. The hospital met the standard of care outlined by the experts and it does not incur a liability in negligence. His Honour dismissed the "unsupported contention" that the opinions of the hospital's witnesses were irrational.

Limitation Period

In addition to a defence under section 5O being established, his Honour concluded that the proceedings were statute barred. His Honour determined Ms Coffey took reasonable steps up to July 2006 to pursing the question of liability, however under cross-examination no explanation could be proffered by Ms Coffey or her solicitor as to what further steps, if any, were taken between July 2006 and February 2011.

His Honour concluded that there was no material change of facts between July 2006 and February 2011, and it followed that had Ms Coffey continued to take reasonable steps after July 2006 then the cause of action would have become discoverable prior to January 2007. His Honour concluded that Ms Coffey ought to have known prior to 31 March 2008 (three years before proceedings were commenced) all of the facts that would inform a decision to commence proceedings. The fact that both Ms Coffey and her solicitor were unable to explain what occurred in the dormant period between July 2006 and February 2011 was central to his Honour's conclusion that no further steps were taken during this period of almost five years.

Why this case is important

This case highlights the precedent set by recent case law that where a defence under section 5O is raised by a defendant professional with supporting expert opinion, subject to the Court not finding that such opinion is irrational, that evidence establishes the standard of care that is to be applied in the instant case. Conformity with that standard of care thereby presents an absolute defence to negligence.

An inference can also be drawn that identifying the precise practice or practices that inform the section 5O defence, as opposed to a generalised practice, is necessary where the competent professional practice relied upon is multi-factorial.

This case also highlights that, in some circumstances, a plaintiff ought to be able to demonstrate that they undertook reasonable steps to discover a cause of action within a reasonable timeframe. Crucial to the determination in this instant case was the fact that reasonable steps were taken initially, but no explanation could be proffered as to why those investigations ceased for approximately five years with an unchanged factual scenario. Absent any reasonable explanation, or material change in facts or assumptions, it may be found that a cause of action ought to have been discovered earlier than it ultimately was.