The first respondent (Dr Broadbent) conceded there was a right of action, but disputed the material fact. The second respondent (Allamanda Private Hospital), with the exception of Caroline Shaw’s claim likewise conceded a right of action, but contended to suffer prejudice by the expiration of the limitation period.
Justice Atkinson helpfully reviews the relevant decisions:
Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360, cited
Carlowe v Frigmobile P/L  QCA 527, cited
Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors  QCA 335, cited
HWC v The Corporation of the Synod of the Diocese of Brisbane  QCA 168, cited
NF v State of Queensland  QCA 110, applied
Whilst the factual matrix is different for each applicant/plaintiff her Honour found that the report/memorandum of meeting between Dr Woods and the applicants’ solicitor was the relevant material fact of a decisive character, which was within the 12 month period.
As to the second respondent’s contention about a right of action (Shaw’s) her Honour found the accreditation by the hospital of Dr Broadbent as a VMO (visiting medical officer) and the endorsement of his conditions, including the need for a dietician, which was not employed was a prima facie basis for a right of action, amongst other matters having regard to the clinical notes of each to bring the hospital in with the grounds alleged.
In addition, her Honour considered that where there is more than one defendant and a right of action exists against one defendant, the court is bound to hear all the evidence before entertaining a no case submission against one defendant:
In Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 372, Clarke JA, with whom Kirby P and Hope JA agreed, held, in respect of a case involving the limitation period where there was more than one possible defendant:
“According to well recognised principles where a plaintiff, who has sued multiple defendants one or more of whom may be liable, shows prima facie that at least one defendant may be responsible, the court is bound to hear the whole of the evidence before entertaining submissions by any other defendant that no case has been established against him. This is so even if the plaintiff has not called any evidence demonstrating the fault of the particular defendant. The rationale of the rule, as explained in Menzies v Australian Iron & Steel (1952) 52 SR (NSW) 6269 WN (NSW) 68, is that if the rule were otherwise the defendant against whom a prima facie case was shown might escape liability by addressing evidence to the effect that the defendant against whom the case had been dismissed was the party who was actually at fault. Indeed that is what occurred in Hummerstone v Leary  2 KB 664, the case cited in Menzies. Obviously that result would be inimical to the interests of justice.”
This passage was cited with approval by Keane JA in Raschke v Suncorp Metway Insurance Limited at  2 Qd R 549 at .
As to prejudice her Honour applied the well settled authority of Brisbane South Regional Health Authority v Taylor  HCA 25 per Toohey and Gummow JJ (at 548-549):
“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”(footnotes omitted).
Her Honour found the detailed nurses clinical notes in the hospital records and general availability of witnesses, despite lack of independent recollection on the main, was not sufficient prejudice to exercise the discretion in favour of the second respondent.
Brisbane Barrister – David Cormack