Owen v Finden & Anor; Owen v Metro South Hospital and Health Service & Ors [2017] QSC 248
List member Geoffrey Diehm QC appeared for the applicant in both proceedings. List members Richard Douglas QC and David Schneidewin appeared for the first respondent in proceeding 11254/16.
The plaintiff alleged he suffered injuries in a motor vehicle accident (MVA). The defendant driver was insured by AAI Limited. After the MVA the plaintiff suffered two episodes of atrial fibrillation (AF), which he alleged were caused by the MVA. On the second occasion this occurred together with a very high and irregular heart rate, as well as other serious symptoms. He was taken to the Logan Hospital (Hospital), operated by Metro South Hospital and Health Service (Metro South). As a consequence of the second AF episode, the plaintiff threw off emboli causing a blood clot to form in his kidneys resulting in infarction and kidney damage. On account of his rapid heart rate, AF and various other dangerous clinical signs, the emergency staff at the Hospital treated the plaintiff with electro-cardioversion which threw off further emboli to the plaintiff’s bowel causing an ischaemic bowel leading to the loss of his small bowel and part of his large bowel.
The plaintiff commended proceeding 12257/2015 against the driver and AAI Limited for negligence, and proceeding 11254/2016 against Metro South alleging negligence and breach of an implied contractual term in relation to his medical treatment he received at the Logan Hospital for the treatment of his condition which he alleged resulted in the injuries he sustained, including the bowel injury. Metro South served AAI with a third party notice, claiming contribution or indemnity as a several and concurrent tortfeasor.
In proceeding 12257/2015 the applicant sought to have the paragraphs of the amended statement of claim in which the plaintiff alleged that he suffered the two episodes of AF (and the relevant consequences) as a result of the motor vehicle collision, struck out. Alternatively the applicant sought to have the claims raised by those paragraphs permanently stayed as an abuse of process. In proceeding 11254/2016 the applicant sought to have Metro South’s third party notice and statement of claim struck out or alternatively stayed also as an abuse of process.
In both proceedings, the applicant (AAI Limited) relied upon the third category of abuse of process identified by McHugh J in Rogers v The Queen (1994) 181 CLR 251, that the use of the court’s procedures would bring the administration of justice into disrepute. The applicant alleged the proceedings would re-litigate whether the AF was caused by the MVA which was an issue already decided against the plaintiff by the Queensland Industrial Relations Commission (‘QIRC’) on an appeal brought by him against the refusal of workers’ compensation benefits for his condition.
Flanagan J determined that although the proceedings before the court concerned the same basic question – did the accident cause the AF? – the QIRC addressed a different factual issue from the current proceedings. While the current case addresses whether the plaintiff is entitled to common law damages, the QIRC proceedings related to whether he had sustained an injury under the Workers’ Compensation and Rehabilitation Act.
In relation to proceeding 11254/2016 Flanagan J noted that the third party claim is separate from the Plaintiff’s proceeding, and Metro South was not a party to the QIRC proceeding. Metro South had not been afforded an opportunity to be heard and therefore its proceeding was not an abuse of process.
Both applications were dismissed.
See judgment here: https://www.sclqld.org.au/caselaw/QSC/2017/248
Geoffrey Diehm QC
Richard Douglas QC
David Schneidewin
