Adams v Hertess - [2010] QDC 369

DISTRICT COURT OF QUEENSLAND

CITATION:

Adams v Hertess [2010] QDC 369

PARTIES:

DEBORAH J. ADAMS
(Applicant)

AND

ISOLDE HERTESS
(Respondent)

FILE NO/S:

BD769/10

DIVISION:

Civil

PROCEEDING:

Hearing of an application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

6 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2010

(Submissions closed 20 September 2010)

JUDGE:

R. Jones DCJ

ORDERS:

(i) The application is allowed

(ii) The parties to be heard on costs

CATCHWORDS:

APPLICATION TO EXTEND TIME FOR COMMENCEMENT OF PROCEEDINGS CLAIMING DAMAGES FOR PERSONAL INJURIES PURSUANT TO S 31(2) OF THE LIMITATION OF ACTIONS ACT 1974 – Material Fact Of A Decisive Character Relating To The Right Of Action – alleged medical negligence – whether or not a right of action established – prejudice to defendant due to passage of time- s21 Civil Liability Act 2003- Doctor and Patient- give or arrange to be given information about risk.

COUNSEL:

Mr G. Mullins of counsel for the applicant

Ms J. Dalton SC of counsel for the respondent

SOLICITORS:

Trilby Misso Lawyers for the applicant

Minter Ellison Lawyers for the respondent

The applicant seeks an order that the time for the commencement of proceedings against the respondent be extended to 11 March 2010 pursuant to s 31(2) of the Limitations of Actions Act 1974.

Background

The respondent was at all material times a plastic surgeon. On or about 13 June 2003 she carried out breast augmentation surgery on the applicant. It is alleged that following the surgery the applicant suffered severe infection, unevenness in the size of her breasts, scarring, and psychological distress. By reference to the chronology of events provided by Mr Mullins, counsel for the applicant, following the surgery carried out by the respondent, the applicant underwent four reversionary surgery procedures resulting in the left breast implant being removed on 25 January 2006 and a left breast reconstruction and right breast implant replacement on 7 August 2007.

On 11 March 2010 the applicant’s solicitors filed a claim and statement of claim in the registry of this court. Damages are sought against the respondent in the amount of $250,000. It is alleged that the surgery carried out by the respondent was in breach of the terms of contract between the parties and/or in breach of their duty of care to the applicant. The particulars alleged against the respondent are:

(i) that the respondent failed to provide the applicant with adequate information as to the risks associated with the surgery;

(ii) that the respondent failed to adequately treat the applicant in the provision of the surgery, in particular to the provision of medication and treatment of infection;

(iii) that the respondent failed to exercise care and skill in the conduct of the surgery;

(iv) that the respondent failed to provide adequate post surgical care and follow up to ensure that the applicant was adequately cared for and treated.

During the course of argument, reference was made to a report by a Dr Marshall. who is a plastic and reconstructive surgeon and a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Hertess

Details

AGLC: Adams v Hertess [2010] QDC 369
Case: [2010] QDC 369
Decision Date: 6 October 2010

CaseChat Overview and Summary

The matter of Adams v Hertess involved an application by the plaintiff, Adams, to extend the time for commencing proceedings against the defendant, Hertess, a medical practitioner, for damages arising from alleged personal injuries due to medical negligence. The application was made pursuant to section 31(2) of the Limitation of Actions Act 1974. The primary legal issue was whether a material fact of a decisive character relating to the right of action existed, which was unknown to the plaintiff at the relevant time, and whether the defendant would suffer undue prejudice if the application were allowed. The court had to consider the statutory provisions under the Limitation of Actions Act and the Civil Liability Act 2003, particularly in relation to the duty of a doctor to inform or arrange for information about risks to be given to a patient.

The court examined the circumstances surrounding the alleged medical negligence and the knowledge the plaintiff had at the time of the incident. It was established that the plaintiff was unaware of the full extent of the risks associated with the medical procedure at the time of the incident. The court found that this constituted a material fact of a decisive character unknown to the plaintiff. Additionally, the court considered whether the defendant would be prejudiced by the delay in bringing the proceedings. The court concluded that there was no undue prejudice to the defendant, as the defendant had not demonstrated any significant disadvantage due to the passage of time. The court also noted the importance of adhering to the statutory requirement for doctors to inform patients about the risks of medical procedures under the Civil Liability Act 2003.

Accordingly, the court allowed the application to extend the time for commencing the proceedings. The court emphasised the importance of the statutory requirement for doctors to provide information about risks to patients, and how this related to the plaintiff's ability to ascertain the full extent of the injuries and the associated negligence. The court ordered that the application be allowed and that the parties be heard on the matter of costs. This decision highlights the importance of timely awareness of material facts in personal injury claims and the need for adherence to statutory duties in medical practice.

Orders

Orders of the court

(i) The application is allowed

(ii) The parties to be heard on costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DEBORAH J

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Ratio Decidendi

Legal Principle Established

Established by: DEBORAH J

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CITATION:	Adams v Hertess [2010] QDC 369
PARTIES:	DEBORAH J. ADAMS (Applicant) AND ISOLDE HERTESS (Respondent)
FILE NO/S:	BD769/10
DIVISION:	Civil
PROCEEDING:	Hearing of an application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	6 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2010 (Submissions closed 20 September 2010)
JUDGE:	R. Jones DCJ
ORDERS:	(i) The application is allowed (ii) The parties to be heard on costs
CATCHWORDS:	APPLICATION TO EXTEND TIME FOR COMMENCEMENT OF PROCEEDINGS CLAIMING DAMAGES FOR PERSONAL INJURIES PURSUANT TO S 31(2) OF THE LIMITATION OF ACTIONS ACT 1974 – Material Fact Of A Decisive Character Relating To The Right Of Action – alleged medical negligence – whether or not a right of action established – prejudice to defendant due to passage of time- s21 Civil Liability Act 2003- Doctor and Patient- give or arrange to be given information about risk.
COUNSEL:	Mr G. Mullins of counsel for the applicant Ms J. Dalton SC of counsel for the respondent
SOLICITORS:	Trilby Misso Lawyers for the applicant Minter Ellison Lawyers for the respondent