Smith v Hunter New England Local Health District

By amended notice of motion filed on 2 April 2015 Kristen Smith, the plaintiff, seeks the following orders:

The Hunter New England Local Health District (the defendant) supported the plaintiff’s application for a separate hearing on the limitation issue. I was satisfied that it was appropriate in the circumstances of the present case for the issue of the limitation period to be determined in advance of any hearing of the substantive proceedings. If this issue were decided adversely to Mrs Smith, the parties would save the not insubstantial costs of a final hearing. Moreover, the questions of fact and law that arise on the limitation question are different from those which would arise in the substantive proceedings. Accordingly, I considered it to be in the interests of justice (having regard to the matters referred to in ss 56, 57, 58 and 59 of the Civil Procedure Act 2005 (NSW) and the matters referred to in Young v Hones [2014] NSWCA 337 at [300] per Ward JA, Bathurst CJ agreeing) to determine the limitation question separately.

In these circumstances I proceeded to hear and determine the balance of the plaintiff’s application, the reasons for which follow.

The substantive proceedings comprise a claim by Mrs Smith, on her own behalf and on behalf of her two daughters, for compensation under the Compensation to Relatives Act 1897 (NSW). The claim results from the death of Gregory Smith, the plaintiff’s husband and the father of their two daughters (the deceased). Mr Smith committed suicide on 9 February 2004.

The facts which led to the deceased’s death are documented in the expert reports which were tendered at the hearing of the amended notice of motion. It is not necessary, for present purposes, to recite these facts in these reasons. It is sufficient to note that the plaintiff alleges in the statement of claim filed on 5 December 2013 as follows.

On 1 February 2004 the deceased’s brother found him at home attempting to commit suicide with a noose around his neck. As a result he was admitted later that day to the James Fletcher Psychiatric Hospital (for which the defendant is responsible). The deceased was suffering from agitated depression with psychosis and was a high risk for suicide. On 6 February 2004 the deceased was discharged from hospital although no proper psychiatric assessment had taken place and before any therapeutic benefit of the medication with which he had been prescribed could be adequately assessed. The plaintiff alleges that the defendant, in permitting the deceased to be discharged from the hospital, was in breach of the non-delegable duty of care which it owed to him.

On 9 February 2004 the deceased committed suicide. The plaintiff alleges that, but for the defendant’s negligence, the deceased would not have committed suicide. She claims that, as a result, she has suffered loss and damage, being the reasonable costs of funeral and burial expenses and the loss of financial benefits and domestic services that the deceased would have provided to her and their daughters but for his death.

The statement of claim was not filed until 5 December 2013, nine years and ten months after the deceased’s death. In paragraph 18 of the defence filed on 19 December 2014 the defendant alleged:

Section 50A of the Limitation Act 1969 (NSW) (the Act) provides that Division 6 of Part 2 applies to a cause of action that relates to the death of a person. Section 50A(4) provides that the section extends to a compensation to relatives action. Section 50C relevantly provides:

Section 50D provides:

From the age of 16 to 25 Mrs Smith worked in the office of a debt collecting company. She understood that debtors who did not pay could be sued. However, I accept her evidence that she was not aware that there was a time limit for bringing such proceedings.

On 7 February 2004, the day after the deceased’s discharge from hospital, Mrs Smith rang the hospital and spoke with a man, whom I infer was Guy Baker, a nurse at the hospital who had been involved in the deceased’s care. She told him of her concern that her husband was not well enough to be out of hospital. Mr Baker responded by telling Mrs Smith that the consensus of the members of the nursing staff was that Mr Smith (who was then still alive) had been discharged from the hospital too early and that he was on the wrong medication.

Mrs Smith was so concerned about her husband (who refused to return to the hospital) that she arranged for him to see Dr Saltis, a general practitioner. Dr Saltis expressed the view that Mr Smith was on the wrong medication.

When the deceased committed suicide on 9 February 2004, Mrs Smith believed that, if the hospital had managed his treatment, medication and discharge properly, he would not have killed himself.

On the day following the death, Mrs Smith went to the home of her mother-in-law, Christine, where she met Mr Baker and Brad Parker, whom she understood to be members of the hospital staff who were involved in the management of patients in the community. When she saw Mr Baker she recognised him as the father of a boy who was in the same class as one of her daughters. At that time Mrs Smith did not know what positions Mr Baker or Mr Parker held in the hospital; nor was she aware that they had been involved in the deceased’s care while he was in hospital.

In late February 2004 Mrs Smith’s mother-in-law asked her to attend a conference with Carmel Hanson, a friend of the family who was a solicitor at the University of Newcastle Legal Centre. The purpose of the conference (which was to include other members of the deceased’s family) was to discuss the possibility of requesting a coronial inquest into the deceased’s death. The conference took place on 4 March 2004. Although Mrs Smith attended, she has little recollection of what occurred and did not take notes, as she found it difficult to participate. Ms Hanson sent Mrs Smith a copy of her file note of the conference, which included the following:

Also in late February 2004 Mrs Smith requested that the hospital arrange meetings with the doctors and the psychologist who were involved in her late husband’s treatment.

The first of such meetings took place on 15 March 2004. Mrs Smith, who attended the meeting with her father and a friend (Shannon), took notes. Her notes recorded that, although Mr Parker and Mr Baker attended the meeting, they were not permitted to answer any of her questions, which had to be answered by the treating doctors, who were not present at the meeting.

Towards the conclusion of her notes of the meeting, Mrs Smith recorded:

Between March and November 2004 Mrs Smith met with Ms Hanson again on two or three further occasions with a view to preparing a letter to the NSW Coroner requesting an inquest into the deceased’s death. Ms Hanson helped Mrs Smith to obtain documents from the New South Wales Police. Throughout this period Mrs Smith believed that, if an inquest was to be held, Ms Hanson would represent her at the hearing.

On 28 April 2004 Mrs Smith attended another meeting at the hospital. Messrs Parker and Baker were present. Dr Balakrishnan, a treating psychiatrist, was also there. Mrs Smith’s understanding was that Dr Balakrishnan was ultimately responsible for the deceased’s care in the hospital. She formed the view at the meeting that he was poorly prepared and unable to answer questions as he did not have access to his clinical notes.

Mrs Smith requested a meeting with Ms Robson, whom she believed to be the psychologist who had treated her late husband in hospital. She was told that Ms Robson refused to meet her because she was traumatised by the circumstances of the deceased’s death. Mrs Smith became frustrated with the hospital’s response and with what she perceived to be unsatisfactory answers to her questions.

On 24 May 2004 and 5 July 2004 Mrs Smith attended meetings at the hospital. Judy Kennedy, Deputy Director of Hunter Mental Health, and Professor Vaughan Carr, whom Mrs Smith understood to be in charge of the hospital, also attended. Both informed Mrs Smith that the deceased was fit to be discharged as he had good “community support”, which Mrs Smith understood to be a reference to such support as she and other members of the family were able to provide to him.

Mrs Smith attended a further meeting on 23 August 2004 at which Ms Kennedy, Professor Carr, Ms Robson and Mr Parker were also present. According to Mrs Smith, Ms Robson was unwilling to discuss the matter.

By the end of August 2004 Mrs Smith was upset and frustrated by the response of the hospital staff. She found the meetings both traumatic and unhelpful as the staff continued to maintain that there was nothing wrong with the way the hospital had treated her late husband. She decided that there was no point in attending any more meetings with hospital staff.

Eventually, with the assistance of Ms Hanson, Mrs Smith wrote to the NSW Coroner on 15 November 2004 to request an inquest. The letter read in part:

As at September 2005 Mrs Smith, who had heard little from the Coroner, understood that he was still considering her request for an inquest. On 21 September 2005 she sent a letter of complaint to the Health Care Complaints Commission (HCCC). I infer that she had read the brochure referred to above that Mr Baker had provided to her at the meeting at the hospital on 15 March 2004.

Under cover of a letter dated 23 November 2005 from the Assistant Coroner, Mrs Smith received a copy of the report that the defendant had submitted to the Coroner, as well as other reports and the police brief. She was too distressed to read these documents in full. The documents enclosed with the letter included a report of Dr William Barclay.

In this report to the Coroner in May 2005 Dr Barclay analysed the treatment given to the deceased by the hospital. His report contained material which was critical of the hospital’s treatment of the deceased, including the following passages:

I accept Mrs Smith’s evidence that she read neither the report of Dr Barclay nor the defendant’s response (referred to below) until she received the report of Dr Phillips dated 11 March 2013 (which had been commissioned by her solicitor). She accepted in cross-examination that, once she had read Dr Barclay’s report, she became aware that he made a number of significant criticisms of the care that was provided to her late husband (including that he was discharged too early and that his medication had not had time to have a therapeutic effect) and that his view accorded with her own and those of Mr Baker and Dr Saltis.

In September 2005 the Coroner received a response to Dr Barclay’s report from the defendant which was signed by Dr Andrew Llewellyn and Professor Carr.

On about 28 December 2005 Mrs Smith received a response from the defendant concerning the complaint she had made to the HCCC.

By letter dated 9 January 2006 Ms Hanson wrote to Mrs Smith and told her that, due to reduction in staff at the legal centre, legal representation would not be available at any inquest into the deceased’s death, although Ms Hanson could accompany her as a support person. On no occasion during the course of Ms Hanson’s association with Mrs Smith did Ms Hanson inform or advise her that she could (if there was some evidence of negligence by the hospital staff which was causally related to the death of the deceased) bring proceedings against the hospital for damages.

On 16 March 2006 Mrs Smith received a letter from the HCCC informing her that her complaint against the hospital had been referred to a voluntary conciliation process which would involve further meetings with hospital staff. Having regard to her experience of such meetings, Mrs Smith did not consider there to be anything to be gained by engaging in such a process. In the same letter she was informed that her complaints against Dr Balakrishnan and Ms Robson had been referred for investigation.

On about 4 April 2006 Mrs Smith received a letter from the Coroner informing her that he had dispensed with the holding of an inquest. He reported that he had made the following recommendation:

The Coroner also informed Mrs Smith in the letter that the direct cause of death had been recorded in the Death Certificate as “hanging”. She also received, with the letter, a bundle of documents from the Coroner. Mrs Smith found it too upsetting to read them and put them away in a box. She was very disappointed with the Coroner’s decision not to hold an inquest. She believed that the Coroner had not found any significant cause for concern arising from the matters she had raised about the hospital’s treatment and discharge of her late husband shortly before his death.

On 21 April 2006 Mrs Smith received a letter from the HCCC listing the issues it intended to investigate with respect to the conduct of Dr Balakrishnan and Ms Robson.

On 20 June 2006 Angela O’Gorman, an investigations officer with the HCCC, attended Mrs Smith’s home and took detailed notes which resulted in a draft statement which she forwarded to Mrs Smith under cover of letter dated 14 July 2006. The letter also recorded that documents had been provided by Mrs Smith to the HCCC as follows:

I find that Mrs Smith did receive the letter with enclosures (since she subsequently provided them to her solicitor) although I accept her evidence that she does not recall receiving them. I infer from the terms of this letter that Mrs Smith had earlier provided the documents listed to the HCCC, including the report of Dr Barclay referred to above.

On 26 February 2007 Mrs Smith received a letter from the HCCC informing her that it had decided to end the investigation into Dr Balakrishnan and take no further action “at this stage” as he was not registered with the Medical Board and was unable to be located. The HCCC also informed her that it had decided to terminate the investigation into Ms Robson “as the totality of the evidence does not support a finding that there was a departure from professional standards”. The reasons for the HCCC’s decisions were enclosed with the letter.

By early 2007 Mrs Smith considered that she had exhausted all available options open to her in relation to her late husband’s death. She was frustrated that her request for an inquest had been refused; that the hospital had not acknowledged that its treatment of her late husband had been other than appropriate; and that the complaint to the HCCC had not resulted, as far as she was concerned, in any action. Her daughters were then aged 4 and 8. She had not worked since Christmas 1996. In order to support her family she had to return to work.

I accept Mrs Smith’s evidence that it did not occur to her to contact Mr Baker again. Her approach is evident from the following passage in her cross-examination:

I accept Mrs Smith’s evidence about her reasons for requesting an inquest and complaining to the HCCC. She said, in cross-examination:

During the latter part of her answer her voice trembled and she became emotional.

In late 2010 Mrs Smith encountered Mr Baker again, as she had done several times since 2003 when her elder daughter started school. Notwithstanding that she and Mr Baker had seen each other on several occasions since the deceased’s death, they had not (except in its immediate aftermath) broached the subject of Mr Smith’s death (which Mrs Smith described in her oral evidence as “pretty private”) as they were often in the company of others. On this occasion in late 2010, Mr Baker repeated his earlier comment that the hospital had not done enough, in his view, to look after the deceased. He also said, for the first time:

I accept Mrs Smith’s evidence that, before that exchange, she had not been aware that suing the hospital was an option. Up until that time the only lawyer she had consulted was Ms Hanson and Ms Hanson had not advised her that she might be able to sue the hospital if there was evidence of negligence.

On 3 December 2010, a short time after her conversation with Mr Baker, Mrs Smith rang Mr Wilson, who became her solicitor on the record in these proceedings. They had the following conversation:

Mrs Smith first conferred with Mr Wilson on 17 December 2010. At that meeting Mrs Smith provided Mr Wilson with a box which contained, as far as she was aware, all relevant documents in her possession that related to her late husband’s death. Although she has provided documents to him subsequently, these related to financial matters, such as tax returns and other documents germane to the claim for damages, rather than to the issue of the defendant’s liability.

Mr Wilson advised Mrs Smith that she needed to obtain an expert report and suggested that Dr Phillips be instructed to prepare one. He informed her that the cost of such a report would be $6,000. Although Mrs Smith had the money, she was a single parent who had obtained employment as a teacher’s aide. She described herself as being “very cautious of where my money was going, because my children were so young and I had their whole life ahead of me”. It was put to her in cross-examination that she had taken the children to Bali for holidays on a couple of occasions during this period. Her response was: “Yes, but that’s for my children”.

In his affidavit, Mr Wilson deposed to the conferences he had had with Mrs Smith and the steps he had taken on her behalf from the time she first contacted him on 3 December 2010 until the filing of the statement of claim on 5 December 2013. It is not necessary to recount that undisputed narrative as the issue is whether the cause of action was discoverable before 5 December 2010. The defendant bears the onus proving that matter: see the authorities referred to in State of New South Wales v Gillett [2012] NSWCA 83 (Gillett) at [26] per Beazley JA, McColl, Campbell, Young and Whealy JJA agreeing.

Mr O’Keefe, who appeared on behalf of Mrs Smith, contended that s 50D(1)(b) was not satisfied until after 5 December 2010 as her cause of action under the Compensation to Relatives Act was not discoverable until she knew each of the following:

Mr O’Keefe submitted that Mrs Smith discovered (1) when she consulted Mr Wilson on 17 December 2010 and that she discovered (2) only when she read Dr Phillips’s report, after 11 March 2013. Although Mr O’Keefe accepted that Dr Barclay’s report was to the same effect, he contended that I ought accept Mrs Smith’s evidence that she did not read the report when she received it and first read it after she had read the report of Dr Phillips, which referred to it. Mr O’Keefe contended that the veracity of her evidence was fortified by the fact that she was hesitant to engage Dr Phillips because of the cost. Had she appreciated that she already had expert psychiatric evidence of negligence she could have commenced the proceedings on the basis of Dr Barclay’s report without having to spend the money to retain Dr Phillips.

Mr Downing, who appeared with Mr Abdulhak on behalf of the defendant, contended that the cause of action was discoverable by the plaintiff no later than November 2005 or early 2006 when she received Dr Barclay’s report from the Coroner. Mr Downing relied on the fact that Mrs Smith herself considered the hospital to be responsible for her husband’s death and knew, even before he died, that the nursing staff, including Mr Baker, and Dr Saltis, the general practitioner, thought that he had been discharged too early and that he was on the wrong medication. He submitted that Mrs Smith’s view that the hospital had done the wrong thing was fortified by Mr Parker’s apology to her at the first meeting with the hospital on 15 March 2004.

He contended that, even if Mrs Smith did not actually know that the hospital was at fault, she ought to have known and that, had she taken reasonable steps, she would have read Dr Barclay’s report (which was provided to her by the Coroner in late 2005) and spoken to Mr Baker earlier than late 2010. Had she done either of these two things she would have known that there was expert opinion from a psychiatrist (Dr Barclay) that the hospital was at fault and that she had a potential claim and would have consulted a solicitor to obtain advice with a view to commencing proceedings. Mr Downing contended that, in these circumstances, the fact that the death was caused by the fault of the defendant was discoverable more than three years before the statement of claim was filed and the claim was, accordingly, statute-barred.

Mr Downing also relied on what was said by Gleeson CJ, Priestley and Meagher JJA agreeing, in Drayton Coal Pty Ltd v Drain (NSWCA, 22 August 1995, unreported) as follows:

Mr Downing submitted, on the basis of Drayton Coal Pty Ltd v Drain, that the plaintiff could not postpone the date on which her cause of action became discoverable by identifying a particular of negligence of which she may have been unaware as at 5 December 2010.

It is common ground that the matters in s 50D(1)(a) and (c) were discoverable prior to 5 December 2010. The issue is whether Mrs Smith knew or ought to have known of the fact that her late husband’s death was caused by the fault of the defendant before that date: s 50D(1)(b).

Although the Act speaks in terms of a “fact”, the fact in s 50D(1)(b) is one in respect of which a “legal evaluative judgment appears to be required”: Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454 (Baker-Morrison) at [41] per Basten JA, Ipp and Macfarlan JJA agreeing. Accordingly, the “fault” in s 50D(1)(b) is legally actionable fault, as distinct from moral culpability: Baker-Morrison, per Basten JA at [39]. Section 50D must be read in a broader context, which includes s 347 of the Legal Profession Act 2004 (NSW), which requires a solicitor to certify as to the reasonable prospects of success of a claim for damages: per Basten JA at [43].

In the present case, I am satisfied that, until she received advice from Mr Wilson to that effect on 17 December 2010, Mrs Smith did not know that she had a claim under the Compensation to Relatives Act as a dependant of a person who had died, allegedly as a consequence of another’s negligence. For the purposes of “fault” in s 50D(1)(b), a defendant must establish that the plaintiff knew that the matter was legally actionable: Gillett at [97] per Beazley JA.

However, that is not the end of the matter since the fact is discoverable if Mrs Smith ought to have known of it. She ought to have known of it at a particular time if she would have ascertained the fact if she had taken all reasonable steps to ascertain the fact. As referred to above, it was put on behalf of the defendant that Mrs Smith could have spoken to Mr Baker about the death at any time between her late husband’s death and late 2010 when they came across each other on occasions over the years at school functions and the like. Had she done so, the defendant contended that Mr Baker would, in all probability, have raised the possibility of her making a claim against the hospital. Mr Downing submitted that, in those circumstances, had she taken all reasonable steps to ascertain the fact she would have spoken with Mr Baker about that matter earlier, and, had she done so, she would have consulted Mr Wilson, or another solicitor, earlier. I consider there to be a number of difficulties with that submission which prevent its acceptance.

Mrs Smith did not appreciate that she had a claim, or a potential claim against the defendant, or the hospital, or indeed anyone arising from the death of her husband. She was not the one who raised the possibility of a claim with Mr Baker: he raised it with her. But for the Compensation to Relatives Act Mrs Smith would not have had such a claim, since there is no such claim at common law. Her purpose in consulting Ms Hanson was to obtain assistance in requesting an inquest into her late husband’s death, not to obtain advice about whether she had a claim. That a solicitor in Ms Hanson’s position failed to mention the possibility of such a claim may seem surprising; however, it could not be said that Ms Hanson’s omission gives any support to an argument that Mrs Smith failed to take all reasonable steps which, if taken, would have alerted her to the possibility of a claim.

The defendant appeared to regard Mrs Smith’s desire both for an inquest and to have the cause of the deceased’s death investigated by the HCCC as preliminary steps to making a claim against the hospital, as they not infrequently are. However, in the present case, I am satisfied that they were not. It is a matter of common experience that many tragedies are non-compensable.

I accept Mrs Smith’s evidence that her purposes in seeking an inquest and an investigation by the HCCC were unrelated to the bringing of any claim. She wanted to bring to account the medical staff who, in her view, had discharged Mr Smith too early, before the medication had a therapeutic effect. She hoped that, if the causes of her husband’s death were ascertained, it would prevent others from having to suffer as she and her children have suffered and prevent other lives from being lost, as her husband’s life was lost. She also hoped, as appears from the extract from her evidence set out above, that a finding that the hospital or the medical staff were at fault would absolve her from feeling responsible for his death and give her some peace and “closure”.

It may be difficult for those, such as the defendant, who are accustomed to operating in an arena where monetary compensation for legal wrongs is a dominant consideration, to appreciate the sophistication of a claim such as the one sought to be brought by Mrs Smith on behalf of herself and her children and the legal expertise required to know of its existence and content. First, one must know that there is a cause of action for the dependants of a deceased; and, secondly, one must know that the defendant is liable for any negligence by the hospital which, in turn, owes a duty to its patients which, being non-delegable, cannot be delegated to its medical staff. Both of these two matters distinguish Mrs Smith’s claim from one in which the injured person sues the wrongdoer for damages for the wrong where legal liability and moral culpability can be seen to be more closely aligned.

In Gillett Beazley JA said, of matters such as these (which involve a degree of legal complexity), at [95]:

Since the matter of which Mrs Smith was unaware was the existence of a claim (rather than the way in which it could be formulated), the caution expressed in Drayton Coal Pty Ltd v Drain (set out above) is irrelevant.

Because of the view to which I have come about Mrs Smith’s ignorance of the existence of a claim and the failure of the defendant to establish that, had she taken all reasonable steps, she would have ascertained the fact in s 50D(1)(b), I can express my reasons concerning Dr Barclay’s report relatively succinctly.

If Mrs Smith had been aware that she could claim damages if she had a basis for alleging that the negligence of the hospital or its staff caused the death of her late husband, the taking of “all reasonable steps” would, in my view, have included reading the report of Dr Barclay when, or shortly after, she received it from the Coroner in November 2005. Once she read the report, the taking of all reasonable steps would have included consulting a solicitor to obtain advice about bringing a claim. However, Mrs Smith had no idea that she could make a claim until she saw Mr Baker in late 2010. The relevance of Dr Barclay’s report, as far as she was concerned, was that (whatever it said) it had failed to persuade the Coroner to conduct an inquest. She forwarded it to the HCCC with a view to persuading it to conduct an investigation into Dr Balakrishnan and Ms Robson but she, herself, could not bring herself to read it. Since she did not know that she had a potential claim, there was no reason for her to read it.

The requirement to take “all reasonable steps” cannot, in my view, include (as the defendant submitted) consulting with a nurse (Mr Baker) who would, incidentally, have alerted Mrs Smith to the possibility of a legal claim in respect of which she would have had to seek legal advice. Moreover, she cannot be criticised for not seeing a solicitor: she saw Ms Hanson for a different purpose (to obtain an inquest) and was not told that she might have a cause of action.

I am satisfied that the steps actually taken by Mrs Smith constituted “all reasonable steps” in the circumstances of the present case. The defendant has failed to persuade me that “reasonable steps” included consulting a further solicitor (other than Ms Hanson) or speaking to Mr Baker earlier.

At the hearing of the motion I ordered that there be a separate hearing on the issue whether the cause of action pleaded in the statement of claim filed on 5 December 2013 is statute barred, which was conducted on that day.

For the reasons given above I make the following further orders: