Date: 19970625 Docket: 12516 Registry: Vernon IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: KAREN LYNCH PLAINTIFF AND: HERBERT THOMAS SHACKLOCK, IAN LINDSAY MITCHELL, DAVID TO-SIK TSANG, RICHARD NESFIELD DAVIS and SURREY MEMORIAL HOSPITAL DEFENDANTS REASONS FOR JUDGMENT OF MASTER POWERS Counsel for the Plaintiff: Gregory Reif Counsel for the following Defendants: Herbert Thomas Shacklock, Ian Lindsay Mitchell, David To-Sik Tsang, and Richard Nesfield Davis: J.A. Donnici Counsel for Surrey Memorial Hospital: M. Robens-Paradise Place and Date of Hearing: Vernon, B.C., B.C. May 27, 1997 [1] The defendant doctors and the defendant hospital apply for an order setting aside: - The ex-parte order of Master Bishop dated July 4, 1995 renewing the writ of summons for twelve months; - The ex-parte order of Master Bishop dated July 2, 1996 further renewing the writ until October 1, 1996; - The ex-parte order of myself dated October 1, 1996 renewing the writ for a further five months. [2] Following from that they also seek an order that service upon each of the defendants of the renewed writ is set aside. Setting aside service is unnecessary if the renewal of the writ is set aside. If the renewal of the writ is set aside, then service of that writ after it had expired would be of no effect. [3] The application was very well argued by the counsel for the defendants, and I appreciate the great deal of work that the defendant doctors' solicitor put into the preparation of the submission and with the chronology of events which were provided in writing BACKGROUND: [4] The plaintiff's statement of claim filed May 27, 1997 alleges that since early childhood the plaintiff had suffered from recurrent bouts of acute asthma and severe eczema. Dr. Shacklock and Dr. Mitchell provided general medical treatment to the plaintiff and Dr. Tsang provided treatment as a dermatologist and Dr. Davis provided treatment in psychiatry. In addition the plaintiff was a patient at the Surrey Memorial Hospital. The statement of claim alleges that there may have been other medical specialists or servants or agents of the hospital that also treated the plaintiff but whom the plaintiff cannot identify. [5] The statement of claim alleges that the defendants were negligent in the care provided to the plaintiff, or alternatively breached the contract or an implied term of the contract between the plaintiff and the defendants, or breached a fiduciary duty owed by the defendants to the plaintiff. [6] It is alleged that the prescription of steroid based ointments, pills, or inhalants caused or contributed to the development of glaucoma or cataracts in the plaintiff or deterioration of the glaucoma and cataracts. [7] The plaintiff has suffered almost complete loss of vision in one eye and a significant loss of vision in the other eye. [8] The material indicates that the plaintiff was seen by Dr. Shacklock commencing in 1967 through to October 29, 1985. [9] The plaintiff was seen by Dr. Mitchell commencing on September 9, 1981 up to April 23, 1990. [10] The plaintiff was seen by Dr. Tsang commencing on June 28, 1983 up to April 18, 1990. [11] The plaintiff was seen by Dr. Davis from December 2, 1983 up to February 13, 1985. [12] The defendant hospital has been unable to find any records which would indicate that the plaintiff attended the hospital after November 4, 1986. [13] The plaintiff was diagnosed with glaucoma in late 1985 or early 1986. [14] The writ of summons was issued in these proceedings on July 29, 1994 but it was not until June of 1995 that the plaintiff's solicitor requested any documentation from Dr. Davis, who by that time had not seen the plaintiff for over ten years. Dr. Mitchell was also contacted by the plaintiff's solicitor requesting medical records, and this was more than five years after Dr. Mitchell had last treated the plaintiff. The writ was issued to preserve the plaintiff's right to commence an action and the first application for renewal of the writ on July 4, 1995, supported by an affidavit from the solicitor indicated that more time was needed to complete all necessary investigations to determine whether an action was warranted. No steps were taken to serve the writ. [15] In September of 1995 Dr. Tsang received a request from the plaintiff's solicitor seeking copies of his records. This was more than five years after Dr. Tsang had last seen the plaintiff. [16] The plaintiff again applied on July 2, 1996 to renew the writ. She was acting on her own at that time. Her affidavit in support indicated extensive medical research had been done and she believed she had a provable claim and a good cause of action. Her opinion was based on her own medical research and interviews with medical people and she sought a renewal of the writ to permit her to obtain further legal advice and proceed as advised. The writ was renewed for a period of approximately three months, to October 1, 1996. [17] The plaintiff's present counsel agreed to act in August 1996 and took steps to have the writ served. Dr. Mitchell, Dr. Tsang, and the defendant hospital were served before the renewed writ was scheduled to expire on October 1, 1996. [18] Dr. Shacklock and Dr. Davis were not served. [19] The plaintiff brought on a further application to renew the writ on October 1, 1996 and I granted that application renewing it for a further five months. The evidence before me at that time indicated that the plaintiff had attempted to serve Dr. Shacklock and Dr. Davis but had been advised by their process server that Dr. Shacklock was out of the country until January 1997 and that Dr. Davis had retired, or his whereabouts at that time were unknown. [20] Dr. Shacklock was residing and practising in Delta, British Columbia between July 1994 and January 19, 1997. He was ill between the end of September 1996 and January 20, 1997. [21] Dr. Mitchell was residing in Surrey, British Columbia, and practising in North Delta between July 1994 and September 1996. [22] Dr. Tsang was residing and practising in Surrey, British Columbia between July 1994 and September 1996. [23] Dr. Davis was practising in Surrey, British Columbia between July 1994 and his retirement in 1995. He was only absent from the Province of British Columbia for three weeks in the fall of 1995 and one month in the summer of 1996. His residence is in West Vancouver and his address is listed in the Vancouver telephone directory. [24] It is obvious that the doctors could all have been served with the writ if reasonable efforts had been made to serve them during the currency of the writ and certainly before the first renewal had expired. Obviously the defendant hospital would not have been difficult to serve at any time. [25] Dr. Shacklock and Dr. Tsang indicate in their affidavits that they have no recollection of the plaintiff at this time. Dr. Mitchell and Dr. Davis both indicate their memories are not as good now as they were after the events nor as they were in 1994. [26] The defendant hospital has no knowledge of which of its employees may have been involved at this time or in what capacity nor whether, given the passage of time, they are still employees of the hospital or what their recollection might be of the plaintiff. THE LAW: [27] Counsel agree on the general principles of the law dealing with the renewal of writs. The leading authority is Bearhead v. Moorehouse (1977), 3 B.C.L.R. 81 (S.C.), affirmed 1978, 5 B.C.L.R. 380 (C.A.). The Supreme Court decision of McTaggart L.J.S.C. said at p.83: I adopt this respect the general principle expressed by Culliton C.J.S. in Simpson v. Saskatchewan Government Insurance Office, [1967] 61 W.W.R. 741 at 750, 65 D.L.R. (2d) 324 (Sask. C.A.): In an application to renew a writ of summons the basic questions which faces the court is, what is necessary to see that justice is done? That question must be answered after careful study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. [28] In making that determination the factors considered by the court in Bearhead v. Moorehouse included: (a) Did the plaintiff bring on the application promptly; (b) Did the defendant have notice of the claim; (c) Has the defendant suffered prejudice; (d) Was the delay in serving the writ attributable to the defendant; (e) Was the delay in serving the defendant attributable to the plaintiff. [29] The defendants agree that the plaintiff brought on the application to renew the writ promptly. [30] Dr. Davis and Dr. Shacklock were not aware of any claim until they were served in January 1997, more than 11 years after they had last seen the plaintiff. [31] Dr. Tsang and Dr. Mitchell were not aware of any claim until they were served September 30, 1996, more than six years after they had last seen the plaintiff. [32] The defendant hospital is not aware of any claim until almost ten years after they had last treated the plaintiff. [33] Have the defendants suffered prejudice? The long passage of time itself between the events on which the plaintiff relies on to substantiate her claim and notice to the defendants is evidence of prejudice. (Minter v. Reeves and Reeves (1979), 9 B.C.L.R. 275 (C.A.)) The Minter case involved a six year delay between the time of the motor vehicle accident (1971) and an application to renew. The writ was initially issued in November 1972 and the application for renewal made in May of 1978. [34] Lewis v. MacNeill, unreported, Vancouver Registry No. C865047, January 18, 1990 (B.C.S.C.), was a medical malpractice suit in which just less than five years had passed between the alleged negligent operation and the first notice to the defendant doctor. The court found that passage of time had caused prejudice to the doctor because of the impact upon his recollection of events. As Mr. Justice Stewart said in the decision Lewis v. MacNeill, the prejudice to the defendant is obvious. Mr. Justice Stewart also pointed out that when a plaintiff decides to issue a writ and hold it rather than serve it, that course of action is fraught with peril. WAS THE DELAY ATTRIBUTABLE TO THE PLAINTIFF: [35] In the present case the plaintiff or counsel decided to issue the writ and take no steps to serve it. Even after the first renewal, no steps were taken to serve the writ. The delay was not attributable to any of these defendants and was caused only by the plaintiff's or the plaintiff's counsel's decision not to serve. [36] The defendant doctors also argue that there is no real evidence of any merit to the plaintiff's case. The only evidence available at this time is the plaintiff's assertion that she believes she has a good claim based on her own research and investigations and a simple assertion by her present counsel that he believes she has a good cause of action. [37] The defendant doctors also argue that in any event the Limitation Act may bar the bringing of the action, even at the time the writ was issued. The defendant doctors referred to s.3(2) of the Limitation Act, R.S.B.C. 1996, c. 226, which sets a two year limitation period for the bringing of an action for damages in respect of injury to a person or property, whether based on contract, tort or statutory duty. The defendant doctors also refer to s.8 of the Limitation Act which provides: 8(1) Subject to section 3 (4) and subsection (2) of this section but despite a confirmation made under section 5, a postponement or suspension of the running of time under section 6 or 11 (2) or a postponement or suspension of the running of time under section 7 in respect of a person who is not a minor, no action to which this Act applies may be brought (a) against a hospital, as defined in section 1 of the Hospital Act, or against a hospital employee acting in the course of employment as a hospital employee, based on negligence, after the expiration of 6 years from the date on which the right to do so arose, (b) against a medical practitioner, based on professional negligence or malpractice, after the expiration of 6 years from the date on which the right to do so arose. (See also Wittman v. Emmott et al (1991), 53 B.C.L.R. (2d) 228 (C.A.)). [38] It is not necessary for me to determine the issue of whether the Limitation Act would bar the plaintiff's claims. It is my opinion that the renewal of the writ granted on July 2, 1996 and the further renewal granted October 1, 1996 must be set aside after consideration of the principles outlined in the Bearhead v. Moorehouse decision. The defendants are clearly prejudiced by the failure of the plaintiff to serve the writ within the time required under the rules. [39] I have not dealt with the order of July 4, 1995 because it was really academic whether or not that order should have been granted. The writ was not served even during the additional 12 months following that order. The defendants will have their costs of the application before me on scale 3. "R.E. Powers" MASTER POWERS