The key facts in the case are:

1) Lola was born in March 2002, and was born with congenitally dislocated hips.

2) Lola's case alleges negligent child health care by a community nurse, in failing to act on a finding of 'clicky hips' at a review 10 days after her birth.

3) it is alleged that it was not until Lola began kindly in 2006 that the problem with her hips was noticed. By this time it was too late for effective treatment and despite surgery Lola has significant long term disability. Had treatment been arranged in 2002, it is likely such disability would have been avoided, with simple conservative treatment.

If the 2005 changes to the law apply to Lola's claim, the time when her time for claim began to run is 2006, when the problem with her hips became apparent (and her case is brought within time).

There is no question that before such changes in the Law in Nov 05, Lola's claim would be taken to have accrued and so time was running even before identification of the problem. The injustice of this was a well recognized reason for the law's reform in 2005.

The question in issue is whether the changes in 2005 retrospectively benefit claimants like Lola. In my view, perhaps predictably, the 2005 changes are retrospective and Lola may rely upon them. Only time will tell whether Judge Schoombee agrees....

It is alleged that an MRI scan performed after such game ought to have lead to identification of the need for him to undergo arthroscopic knee surgery. Mr Braken claims that his cricket career has been lost, due to the failure to arrange such knee surgery at that time.

In my view, this case is part of a growing trend. As Australian sportsman's potential earnings continue to increase + authorities and teams provide ever increasing management of health, diet etc, there is an increasing likelihood of litigation when injuries are suffered.

In the AFL there has in the last couple of years been trends with patterns of particular forms of injury being suffered by particular teams, potentially tied to training or strength/conditioning practices at the particular club... I was interested to hear of Essendon + Collingwood's cutting edge practices to seek to assist in their prep for the Anzac Day game.

In my view, it may be only time before career ending injuries leads to litigation and a court ultimately reviewing the reasonableness + scientific justification for some of the more cutting edge/controversial practices.

 Well summarised in my view (mentioned in the recent melanoma case: Coote v Kelly [2012] NSWSC 219

The case concerned a claimant, the aptly named (given the need to litigate her case all the way to the High Court) Mrs Strong, who suffered serious injuries when she slipped and fell at a suburban shopping centre.  It was not in dispute that the cause for her fall was her slip upon a greasy chip on the floor of the sidewalk sales area outside the store.

The initial trial judge concluded (and this was not disputed by the time the case got to the High Court), that the defendant had been negligent in failing to have in place an appropriate system for inspecting and cleaning the relevant area.  Interestingly it was suggested that reasonable care required inspection and cleaning of such area at 15-minute intervals [14].

The difficulty faced by Ms Strong (and many clients in similar cases) was proving that if the defendant had in fact had a proper inspection and cleaning, the chip would have been identified, cleaned away and the accident would have been avoided.  This is a classic 'causation' issue.  Once negligence is proven, in cases like Ms Strong's (and medical negligence cases), the question becomes whether the negligent party should therefore be found liable to compensate the person making claim.  This depends on whether, as a matter of Law, it should be concluded that the negligence caused their harm.

Ms Strong had succeeded at trial on this issue.  This was then reversed on appeal in the New South Court of Appeal.  The Court of Appeal concluded that it could not be proven by Ms Strong that an appropriate system of cleaning and inspection would have removed the chip, because there was no evidence as to when it had in fact fallen to the ground. Based on (inherently) scant evidence, the Court of Appeal concluded there were pointers to suggest the chip had probably not been present for a long period of time. This included the fact the accident had occurred in the lunch period and apparently (I know, this is ground breaking!) people often like to buy hot chips at lunchtime.

Thankfully for Ms Strong, the High Court reversed the court of appeals decision upholding Ms Strong’s claim and awarding compensation.  This conclusion was based upon the view that when all the evidence was looked at, it could be safely concluded that an appropriate system would have been likely to have identified and removed the relevant chip.

The more interesting aspect of the matter from a medical lawyers perspective was the court's discussion in relation to the approach to deciding “causation” questions in difficult cases, where evidence as to the link between negligence and the poor outcome is thin, or difficult.

The majority of the court confirmed that argument had not been put to it suggesting that determination of such causation questions under the Civil Liability Act resulted in any change of outcome compared to the approach to causation at, law (preceding the CLA).  

The Court confirmed that it had not been determined that a non-essential but factually contributing cause would not satisfy such test (I know a 'double negative').  It was observed that section 5D(2) made express provision that causation could be accepted where negligence could not be established as a necessary condition of the occurrence of harm, provided the policy considerations described in the conclusion of such provision were satisfied [26].  Tantilisingly, they didn't go any further to provide guidance as to their views as to the ambit for this most important possibility.

Also interestingly, as with Amaca Pty Limited v Booth [2011] HCA 53 the Court seemed to me to be careful to make clear that it has not to date been asked to decide whether negligent conduct causing a risk of injury in which the state of scientifical medical knowledge makes it impossible to prove whether or not such harm eventuated, is sufficient to permit recovery of compensation (see paragraphs [25] - [26]).

This is the single largest issue of uncertainly in medical law.

It is often the case, in many types of medical claim, that uncertainty arises as to how a patient’s situation would differ had more appropriate care been shown (for instance delay in diagnosis of cancer cases).  Resolution of how such claims are to be evaluated when little or no clear guidance can be given by medical science, as to how the patient's position would have differed (and if it would), with better care, remains very contentious and unclear.

Whilst I may be optimistic, the High Court's recent statements in Strong and Amaca do appear to appreciate the difficulties facing plaintiff's as a consequence of “evidentiary gaps” in such cases. 

• in terms of the time for claims alleging medical negligence.  This uncertainty is not as to the overall time (which in most case is 3 years), but as to when time starts to run from...
• in terms of in what circumstances an extension beyond such initial time limit will be granted.

A recent decision by Keen DCJ, Abreu v Peacock [2012] WADC 31 sheds some light on the first of these.  

Section 55 of the Limitation Act 2005, which deals with when a claim (or 'cause of action') arises, so that time starts to run for a claim, states:

55. Personal injury — general

(1) A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs —

(a) the person becomes aware that he or she has sustained a not insignificant personal injury;

(b) the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.

In Abreu, Judge Keen confirmed that the key phrase, 'a not insignificant personal injury' was not a high threshold and was something very different from, for example, 'a significant injury.'  He therefore concluded that although the claimant in such case alleged, as quite often occurs, that initially he had not suspected his work injury was serious, nonetheless, section 55 was met very shortly after his accident and so his time for claim began to run.  He could not argue that because he had not thought he was seriously injured, until such realisation occurred, his time to bring a claim did not start...

It appears Judge Keen's decision is the subject of appeal, so it will be interesting to see what the Court of Appeal make of the issue.

Still not convinced.

It did however occur to me that if Enore is right, there may be circumstances in which a hospital doctor could be found to not be liable by reason of the CLA, yet the hospital at which they worked,, which can not rely upon the CLA, could be found liable....

It's probably a moot point in the 'real world.'. Even though Enore and I disagree, we did agree that neither of us has yet seen a case in which any real argument can be put that a difference in outcome had occurred, due to the CLA.

As with most such cases, each party called and relied upon leading expert medical witnesses, to comment on the quality of medical care and advice the patient received.  In this case, because of the type of case, such experts were neurosurgeons + neurologists.

One section of the trial involved questioning of a formidable expert called by the Defendant, a neurosurgical specialist who's evidence was conducted via video-link from overseas.  

Such expert, by my assessment, was generally a very knowledgeable and thoughtful witness, who's evidence was given in decisive terms + without hesitation.

An exception to this was a short segment of such expert's evidence, when asked a particularly curly question by the barrister representing the patient.  In contrast to the balance of the expert's evidence, the expert's answer to this question was given in, to my eye, a far less convincing manner.  There was a long pause before he answered, his body language when asked the question changed noticeably (he sat back from the table in front of him, folded his arms and generally adopted a defensive posture) and the tone of his answer when given was uncertain and hesitant...

Yet the transcript of such evidence, which is all that is kept, will demonstrate none of the above subtle, yet potentially key features of the evidence.  The literal words of the answer, which is all the trial judge will now have (other than his direct memory of the evidence + any notes he took), or which any appeal court may have access to, in the event of an appeal, will convey none of the subtle aspects to his evidence described above..

In this day and age, this seems to me to be unnecessary, both for the trial judge, but also any appellate court.  As stated, the expert's evidence was given by video link and software to record such video - or any 'live' evidence at trial is available at negligible cost (with navigation controls to allow speedy location of any given point etc)...  Why the entire course of evidence is not recorded both in terms of video + actual audio and accessible, as well as being transcribed is hard to understand.

Section 47A in the context I have seen it most regularly, set a time limit for claims to be made against public hospitals, to a fixed period of 6 years (at most: it actually provides a 12 month limit, which can be extended up to this 6 limit).  When I say 'fixed' I mean fixed!  No matter how unfair such a time limit was, it could not be extended...

The most unfair application of this time limit I have seen arises in relation to obstetric negligence claims.  Section 47A means that any claim relating to negligence surrounding a child's birth, must be brought before the child's 6th birthday (if against a public hospital: entirely different, more generous limits apply re private hospitals/obstetricians).  If not, the child's potential right to claim is lost forever..  This is particularly unfair as it is commonly only around 6 years of age that parents will be told the likely long term outlook for their child.  They may have been reassured prior to this point, on the promise of hoped for improvement.  Further, if the child's family situation is unstable and no-one brings claim on their part, their claim is still lost, even though it is absurd to hold them responsible for a lack of action on the part of such parents etc..

Section 47A was repealed by the Limitation Act 2005 and so does not apply to any child born from November 2005 onwards.

In 2 test cases (Burns v Min for Health and Harrall v Min for Health: I argued the latter) heard by the Court in Nov/Dec 11, it was argued that when the 6 year time limit set by section 47A had not expired at the time the "new' Act came into force in Nov 05, such 'new' Act's provisions allowing extensions of time, when justice required it, should be permitted to apply, in scenarios such as I have described above.

Sadly, in such cases the Court has made clear that the 2005 legislation does only remove section 47A's application for children born after November 2005... both children in the Burns and Harrall cases cannot pursue claim against the hospital, no matter how negligent their care + [most importantly], no matter how good the reasons for their not taking action earlier.....

Our lease is up on our office space in April, so we face the prospect of possible new premises.. on the hunt!

More importantly, our team is to grow with the addition of Paul McBride, who starts with us at the end of the month. Once he starts I will post a bio for Paul, who comes to us with a background in nursing, professional golf and almost 2 years experience as a lawyer after his mature age degree..

This moves our legal professional staff total to 5, with Tanya, Pia and part-time superstar Sue and I being the others. Hopefully this means even better capacity to service our existing and prospective clients in 2012...

As I have previously posted, the Limitation Act 2005, retrospectively (and without any publicity) shortened the time for claims relating to alleged negligent obstetric (or midwifrey) care, prior to its introduction in November 2005.

Before this legislation, children injured due to negligent obstetric or midwifrey care had until age 24 in most cases to bring claim (there is an important exception, in the case of claims against public hospitals or other public health services).

The time for such claims was shortened, so that it runs out in less than 10 days time... on 15 Nov 2011!  This does not apply to other medical claims, only birth injury claims.

Anecdotally, there are very few people (even lawyers) who are aware of this limitation period shortening.

If you have such a claim - or are handling it for a client, the time for action is now......