Chapman v State of Queensland [2004] HCATrans 243 (23 June 2004)

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Chapman v State of Queensland [2004] HCATrans 243 (23 June 2004)

Last Updated: 5 July 2004

[2004] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B32 of 2003

B e t w e e n -

NOREEN MARY CHAPMAN

Applicant

and

STATE OF QUEENSLAND

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 12.01 PM

Copyright in the High Court of Australia

MS N.M. CHAPMAN appeared in person.

MR D.K. BODDICE, SC: May it please the Court, I appear for the respondent. (instructed by Minter Ellison Lawyers)

GUMMOW J: Yes, Ms Chapman.

MS CHAPMAN: I ask that I may be - - -

GUMMOW J: Stand if you would.

MS CHAPMAN: Pardon?

GUMMOW J: Would you stand.

MS CHAPMAN: I am in an awful lot of pain, your Honour. I have been a week coughing up blood and I am not real well.

GUMMOW J: Yes, very well, sit down.

MS CHAPMAN: I ask that I be allowed read the highlighted pieces I have in my - - -

GUMMOW J: We have read it all ourselves.

MS CHAPMAN: I think there is a major point there where I talk about the aneurysm and that. I feel that that has been a great injustice done to me. It was concealed from me by the hospitals, by all the doctors, by Nambour Hospital and Prince Charles Hospital, both. They have known that - - -

KIRBY J: There was evidence at the hearing that the drug that you received, which was not the drug that was prescribed, but that it is interchangeable with the drug that was prescribed, and that, therefore, no harm was done and that your attack was the consequence of the natural progression of the condition which appeared to be building up at the time. That was the evidence at the trial and that was accepted.

MS CHAPMAN: Well, I do not accept that, your Honour, and it was quite wrong.

KIRBY J: I know you do not accept it, but the judge accepted it.

MS CHAPMAN: The judge states also that she read - or writes – read my medical files and could find no evidence whatsoever of any allergic reaction. Yet after the trial, when I had been given copies of my medical files from the opposition, I went through them after the Supreme Court of Appeal because I had a stroke just before that, after the trial, and I found that I did suffer the allergic reactions. I had hypertension, shortness of breath, I had diaphoresia and I had – I do not know what else, what it was, but it is in the files there, your Honour. So I did have the allergic – the only reaction I did not have was a rash, but I have had that nearly ever since with a very, very irritable scalp and I claim that it is from the same medication equal to the one that was wrongly given to me, that is Cardizem. I have lost all my hair. It has grown back a bit with lotions, now, but now it is all – a month ago that was all thick black hair. Now it is gone.

KIRBY J: I am sorry you had all of these problems, but you see, from our point of view, we can only intervene if it is shown that the courts below have erred, and on the face of the matters, the material was before the trial judge that permitted the trial judge to come to the conclusion that although an incorrect drug was dispensed, it was interchangeable with the drug which was prescribed and did not cause the troubles that you have, which were the product of your underlying condition which was reaching a crescendo at the time.

MS CHAPMAN: I agree with you on that, your Honour, those drugs are interchangeable, but if a person has an allergic reaction, well then, that is not such a good thing to do to them at all, and I did have the allergic reaction. I had the allergic reaction from the second medication that I begged the doctor I did not want to take. They were going to do cardio and vascular surgery. I took two and I nearly died that night. I was told – this is in 2001 – I thought it was 2002, but my doctor said I have lost a year of my life, but in 2001 when I took that second medication, the Asasantin, I got the documents to say that I had an aneurysm in the aorta and in both groins.

So I contacted the manufacturers. I complained about it, and then I find out that last year my doctor gave me the letter stating that I had the aneurysm in 2000, he said, well before you took the other medication in 2001. I was misled. I had to ring the manufacturers and apologise and say, you did not cause the aneurysm. I already had it from Prince Charles Hospital tearing my aorta in 1990, then doing an aorta repair in 1991 – 27 March 1991. All this time they have known that I have had that time bomb in me and they have just let me go on and not operated or anything else.

Now, it is to the point where I think this week it has burst and that is almost a timely death. I do not know whether it is the aneurysm that has burst or not. I am just coughing up all this blood all the time and I am pretty sore in there, and I cannot go interstate and have surgery. I cannot afford it, and I have got my handicapped son to care for. All these things come into my medical file thing, my health.

There is also the point that Nambour Hospital specialist stated I was having all of these heart turns. That is completely untrue. I was not. I was fighting from 1989 till 1996, early 1996, for my grandson who was in foster care in Sydney. I was in and out of Grafton Court, Coffs Harbour Court, the Supreme Court in Sydney. I was backwards and forwards in Sydney for tribunals, and I also had monthly access visits to my grandson in Grafton, who is still in foster care, but comes up to visit.

I had no heart attacks. I never had a heart attack in Sydney, which they have declared on documents. I had one minor angina attack and it was not a serious one. I went to the hospital. They did an ECG and said, “Our machine is playing up but we will do another one”. They tore it up. They did another one, they tore it up. Then they did the third one. They said, “Well, there is not a thing wrong. That is quite okay. Here is a five milligram Valium, go home and rest, you have got a bit of hypertension”. There was no heart attack.

I differ with nearly all of their reports. They say also in one of their reports I smoked two packets of cigarettes a day. I smoked one at the most. I have never in my life smoked two packets of cigarettes a day. I do not think I could handle it.

KIRBY J: Even one is not good for you, as you know.

MS CHAPMAN: It is very bad for you, but there is also something else, your Honour, that is very bad for you, and that is if you are being knocked around by husbands and so on and so forth and drug dealers next door.

KIRBY J: Can I focus your attention on one thing, Mrs Chapman?

MS CHAPMAN: Yes, sir.

KIRBY J: That is that, formally, as a matter of form, your application is an application for special leave to appeal from the Court of Appeal, and as a matter of form the Court of Appeal had to deal with the fact at the threshold that you got out of time for bringing the proceedings in that court, so that they dismissed the application on the basis that you should not have the extension of time. They also looked at the merits of the matter but that creates an added problem for you here in this Court, that formally, your application is one for special leave to appeal from a decision refusing to extend time to you, which is a procedural matter, and the High Court virtually never gets involved in matters of that kind.

MS CHAPMAN: Your Honour, I did everything I could without any legal assistance, really, to get these things done, at earlier stages.

KIRBY J: You dismissed your lawyers, did you not?

MS CHAPMAN: Pardon?

KIRBY J: You dismissed your lawyers earlier on?

MS CHAPMAN: Her Honour put me onto the Bar Association pro bono to get this legal assistance. They got me this firm, Irish Hughes & Bentley. Now, Trevor Brown - - -

KIRBY J: We are not going into the reasons why you dismissed them, but just focus on the fact that you were out of time in the Court of Appeal. So that that is what they were looking at, do they extend time to you? They said no. That is a procedural matter. We do not normally get involved in such things.

MS CHAPMAN: I am illiterate as to all those things. I just did my best to get documents when I was asked to.

KIRBY J: I realise that, but I am explaining to you the problem.

MS CHAPMAN: Between strokes and all of this other business, I just did my best, and if your best when you are being honest and truthful is not good enough, then I do not see why I am in this world at all. That is my view. I have fought all my life for justice. I might be dying now, but plurry hell, I will never fight for justice again in my life if I am denied justice for something that is so truthful, and there is so much dishonesty in these reports. Nambour Hospital states the specialist saw me on 6 June 1996. To my recollection, it was around the 18^th.

Now, on 6 June – I beg your pardon – on 22 May 1996, the police at Emerald phoned me and asked me to go up there to mind my grandson. They had put my son in care up there for non-payment of fines. I drove up there. I arrived there on 24 May. I stayed there at the caravan park at the Willows until 6 June where I travelled back down with my son and my grandson. I was not at Nambour Hospital on the 6^th. These reports from Nambour Hospital are a disgrace.

KIRBY J: Your case does not really turn on those matters.

MS CHAPMAN: I was not, your Honour, allowed to submit my evidence during the trial. I was not allowed to submit it. I was told it had to be 1996 evidence or just leave it – it laid on the floor in the Supreme Court room floor. It was wrong. It was not a trial. It was a farce. I think if you had my evidence and you had it sitting on the floor and the judge says, “Well, that is not 1996, we cannot” – and Mr.....would say, “Well, I object, I object.” What in the heck does a self-litigant do, lay down and die or fight for what she believes in? If my kids did something wrong when they were little, “Right, in the car, up to the cop shop. You tell the cops what you done and face the music”. I have battled for this all my life and I think it is wrong.

KIRBY J: I realise that, but first of all you got out of time in the Court of Appeal, and then when the Court of Appeal looked at the matter, they said the evidence was overwhelmingly that though you were given the wrong pills, they did the same work as the pills you should have been given and did not affect you, and that was evidence which was at trial.

MS CHAPMAN: Excuse me, your Honour, without an allergic reaction, that is probably quite correct. Now, I have been on the other medication, the correct one, I have lost my hair, I have suffered an enormous amount of stress. They put me on the next sustained release medication. I took two and nearly died. What I went through that night was worse than any heart attack, and I only took two, and I begged the doctor, “No, I do not want to take them. I am too frightened to take any more medication.” I am not game enough to go now in pain into Nambour Hospital or Prince Charles Hospital for treatment.

I know today of all days I should be in hospital now, but there is no way you will get me in hospital up here. I will go and lay down and die at home before I will go up anywhere near them. The last time I went there was a stroke in November 2002 after the trial. I was so stressed, and I kicked the hell out of my leg in the bedroom, trying to tell the ambulance man, “Don’t take me into Nambour Hospital”. I opened all my leg up. I have scarred all my leg, that is nothing, but I woke up the next day in Nambour Hospital, and I am not happy about them.

I went there on one visit and the doctor looked at me and said, “What in the hell are you doing in here on a Friday afternoon? Don’t you know this is emergency?” and I was in a hell of a lot of pain after a car accident. I have got no faith. I was abused in there, “You’re a silly girl. You didn’t take your medication the morning you were admitted. You got what you deserved.” What sort of people are in that hospital? I know there are some beautiful staff, and if my papers are not correct for the appeal thing and that, well, I do not blame me. I blame the legal profession, because I have tried Queensland up and down to try and get appropriate legal assistance. My first legal assistance for the first two years was that firm, Boyce Garrick Lawyers. Okay, I went to - - -

GUMMOW J: I do not think this is really responding to the immediate case you are bringing here?

MS CHAPMAN: To a degree, it is, your Honour. I will differ with you on that.

KIRBY J: A very small degree.

MS CHAPMAN: Because it is all – well, it is all associated that I have tried my heart out, no assets, no nothing, to get proper legal assistance. The legal assistance the Supreme Court got me, one solicitor is in gaol, the other one got off scot-free with the Law Society and has opened his own business. That is not justice. That is injustice.

KIRBY J: We do not know anything about those matters. All we know is what is on the record, and the record showed that you were given wrong – pills were dispensed but that they were, according to the evidence which the judge accepted, have the same effects as the pills you should have received, and that you were in a bad way at the time and that the problems you are complaining of, the angina attack and the myocardial infarction were the product of your ongoing condition, and that these are very unfortunate, very unfortunate, but that they are not the result of any negligence. That was found and then it was confirmed in the Court of Appeal and you were out of time in the Court of Appeal. Now, you have come to the highest Court in the country seeking special leave. It is a big ask.

MS CHAPMAN: Well, your Honour, I differ with that judge’s ruling on it.

KIRBY J: I know you do, but that has been confirmed in the Court of Appeal.

MS CHAPMAN: Well, she erred, your Honour, because she said in the transcripts from the decisions, she read my medical files and could find no evidence of any sort to even suggest an allergic reaction. Now, she must not have read those files very good. Or, there is the other point, I did not have a copy of two or three of those pages from Nambour Medical admission date, and I also did not have the copy of the one from Prince Charles Hospital saying they had done an aorta aneurysm repair. I knew nothing of those things till after the Court of Appeal, well afterwards, when I thought there is something wrong here. I got every medical thing out and laid them on the floor and for four days and nights I laid there and read over and over and over, and I thought, now I have never seen that copy before “aorta aneurysm”.

So I had it in the back of my head, and God is my witness, that week I saw a show on TV from Royal Price Alfred Hospital on aorta aneurysms and I thought that is what I just read on my thing. I went and got it and I thought, “Oh yeah, well there are two copies of Dr Kit’s papers, I have only
ever had one”. So I read it and I had an aneurysm repaired and I thought, “Why didn’t Prince Charles tell me, why didn’t Nambour Hospital tell me?” Why have they kept it a – well, a second had burst, you are dead instantly. That is how I am this week. They erred in not saying, well there is evidence of an allergic reaction. They erred badly, the court. The evidence is there and there is no disputing it. If you think I am wrong, I say that her Honour was wrong in her decision. Not only for restricting me but for erring in her judgment as well, excuse me - - -

KIRBY J: Well, I think we understand the way you have put it and you have put written submissions which we have read, so I think you have covered all the matters now, have you? Is there anything else you have forgotten to say to us?

MS CHAPMAN: Yes, I would like some truth and justice and an uphold of justice on my case. I would like my appeal upheld. I would like her Honour’s decision overruled that I should be able to reappeal, reapply because it was definitely wrong. There is definitely evidence that has been concealed from me which the opposition had. I did not. I argue that I am within my rights to appeal.

KIRBY J: Yes, thank you.

GUMMOW J: Thank you. We do not need to hear from the respondent.

The Queensland Court of Appeal refused the applicant’s application for an extension of time within which to appeal against the dismissal of her action for damages for medical negligence. The Court of Appeal refused to extend time because it was of the opinion that there were no prospects in any event for success on an appeal. In this Court, there are insufficient prospects of success in any appeal from the decision of the Queensland Court of Appeal to warrant a grant of special leave by this Court. Accordingly, special leave is refused with costs.

We will adjourn to reconstitute.

MS CHAPMAN: Do I not get a chance to reply to that, your Honour?

GUMMOW J: No, you do not.

MS CHAPMAN: To get five minutes after the opposition? Thank you.

AT 12.19 PM THE MATTER WAS CONCLUDED