Bowden v. Walker and Court t/a South Brisbane Skin Cancer Clinic

[2008] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

Bowden v Walker and Court t/a South Brisbane Skin Cancer Clinic [2008] QCA 242

PARTIES:

MARIA BOWDEN
(plaintiff/respondent)
v
ANDREW WALKER and PETER COURT t/a SOUTH BRISBANE SKIN CANCER CLINIC
(defendant/appellant)

FILE NO/S:

Appeal No 5081 of 2008
DC No 410 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

21 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2008

JUDGES:

Holmes and Muir JJA and  Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – POWER OF COURT TO EXTEND TIME – where the primary judge extended the limitation period in respect of the respondent’s claim for damages against the appellants pursuant to s 31(2) Limitation of Actions Acts Act 1974 (Qld) – where the respondent visited the appellants’ skin cancer clinic and was told that spots on her nose warranted pathological testing – where the respondent called the clinic several times over a period of seven days inquiring as to the results of the tests – where the clinic told the respondent that they would call her when the results came in – where the clinic never contacted the respondent – where the test results disclosed an ulcerated infiltrating cell carcinoma – where proceedings were commenced outside of the limitations period – whether a reasonable person in the respondent’s position would have continued to chase the appellants for the pathology test results pursuant to s 30(1)(c) Limitation of Actions Act 1974 (Qld)

Limitation of Actions Act 1974 (Qld), s 30, s 31
Personal Injuries and Proceedings Act 2002 (Qld), s 9A

COUNSEL:

B W Farr SC, with G J Smith, for the appellant
KC Fleming QC, with A McLean Williams, for the respondent

SOLICITORS:

Trisley Lawyers for the appellant
Rhonda Penny Lawyers for the respondent

HOLMES JA:  I'll ask Justices Muir and Douglas to give their reasons first.

MUIR JA: The appellants appeal against an order of a Judge of the District Court pronounced on 8 May 2008, extending the limitation period in respect of the respondent's claim against the appellants for damages pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld).

The relevant facts may be stated briefly.  The respondent, a female married teacher aged in her late 40's at relevant times, visited the appellants' skin cancer clinic on 17 January 2002, together with her husband and daughter for a skin cancer check-up.  A doctor at the clinic identified "two little spots" on the respondent's nose as warranting pathological testing.  The respondent was not told anything about why the testing was thought necessary, but the doctor said that the respondent would be advised about the results in a few days. 

The respondent called in at the clinic on Tuesday 22 January 2002.  She was told by a female receptionist "who was quite rude and very abrupt" that the results were not available and that she should telephone the clinic.  The respondent did so on two, or possibly three occasions, over approximately the next seven days.  She was told that there were no results yet available and that the clinic would call her when the results came in.

The clinic did not call and the respondent did not renew her requests for results until March 2004.  The pathology results received by the appellants by facsimile transmission on 23 January 2002 disclosed an "ulcerated infiltrating basal cell carcinoma".
The respondent continued to see the same general practitioner on a semi-regular basis.  She took the "small pimple like growth" on the side of her nose which remained to be a "simple skin blemish", her general practitioner did not remark on it and it was completely asymptomatic.

On 11 March 2004 during a consultation with her general practitioner, he drew attention to that area of her nose.  A discussion resulted in the respondent's obtaining the pathology test results from the clinic on 12 March 2004.

The respondent underwent surgery to remove the carcinoma on 6 April 2004 and since that time has had further reconstructive surgery. The respondent consulted her solicitor about the matter on 6 May 2004 and an initial notice in accordance with s 9A of the Personal Injuries Proceedings Act 2002 (Qld) was sent to the appellants on 19 May 2004.

After that time, various steps were taken with a view to complying with the requirements of the Personal Injuries Proceedings Act 2002. The originating application which led to the order extending the limitation period was filed on 22 February 2008. The three year limitation period expired in January/February 2005.

The relevant findings of the primary Judge are contained in the following passage from his reasons:

"It seems to me that the applicant firstly carried out all reasonable steps as evidenced in her affidavit filed 16 April 2008 to ascertain the results of the biopsy that was taken of her initially in January 2002 and further that she took all reasonable steps in my view available to her over the succeeding period of time to ascertain what those results were.  It seems to me that there was significant obligation on the part of the respondent to disclose to her those results and it seems to me that she took all available and reasonable steps within her means to find out what those results were, but I am of the view that the limitation period should be extended for those reasons."

Counsel for the appellant, Mr Farr of Senior Counsel, in the course of his customary lucid and persuasive submissions, submitted that it was not open to the primary Judge to find that the respondent took all available and reasonable steps within her means to find out what the results were. It was submitted also that in finding that there was a significant obligation on the part of the respondent to disclose the results, the primary Judge reversed the onus of proof, which under s 30(1) of the Act rested on the respondent.

It was submitted that in having regard to the reasonableness of the respondent's conduct, it was necessary to consider that the respondent was not informed by a representative of the appellant that she would be called only if the results were positive, she had a skin blemish, she underwent a biopsy for the superficial skin cancer in the area of her anterior chest on 12 May 2003 and she had previously been treated for thyroid cancer.  In the light of these matters, it was submitted that a reasonable person in the position of the respondent with her background and understanding would have continued to chase the appellants for the results of the pathology test.  To that may be added the further oral submission that the respondent had some warning of the appellants' inefficiencies.

Section 30(1) of the Limitation of Actions Act 1974 relevantly provides:

"(1) For the purposes of this section and Sections 31, 32, 33 and 34-

…

(c) a fact is not within the means of knowledge of a   person at a particular time if

(i)the person does not know the fact at that time, and

(ii) as far as the fact is able to be found out by the person, the person has taken all reasonable steps to find out the fact before that time."

The material fact of a decisive character relied on by the respondent and found by the primary Judge, at least by implication, was the existence of a cancerous growth on her nose.  I do not accept as justified the submission that the primary Judge reversed the onus of proof.  There was in fact a significant obligation on the appellants to disclose the results of the biopsy to the respondent.  What is to be considered reasonable conduct on the respondent's part cannot be divorced from the conduct of the appellants and the expectation which that conduct may have engendered.

The respondent had reason to believe from what she had been told by the treating medical practitioner at the clinic, that the biopsy results would have been available by about 22 January.  They were not.  She called the clinic at least twice over the succeeding seven day period and was informed that the clinic would call her when the results came in.  The clinic in fact had results on 23 January.  There was no call from the clinic.  The respondent's past experience of pathology testing during cancer treatment was that she would be telephoned only if the results were positive and not benign.  She concluded, not unreasonably, it seems to me, that if the pathology results gave rise to any material concerns, she would be notified.  It is relevant that at the time of her visit to the clinic there were only two little spots on her nose.  Beyond stating that samples should be sent for testing, the treating doctor said nothing about the existence of any particular condition or risk. 

Nothing up to the visit to the clinic prior to the 11 March 2004 visit to the respondent's general practitioner should have served to alert the respondent to the fact that the perusal by her of the pathology test results was desirable.

There was nothing about the clinic which suggested or ought to have suggested to the respondent that the services it provided would be affected by incompetence and/or gross inefficiency.  The clinic's business, if true to its description, involved the diagnosis and treatment of skin cancer.  The clinic held itself out as providing a specialised service.  The area of practice would have been perceived by a reasonable patient to be one which called for the careful diagnosis and proper identification and treatment of growths requiring excision or other treatment.

The respondent, in my view, drawing from her prior experience, which one would think was far from unique, was entitled to act on the basis that no news was good news.  No reasonable person in her position should have concluded that there was a material risk that the clinic would fail to advise a patient of a positive pathology result.

The primary Judge's finding, in effect, that the respondent took all reasonable steps to find out the condition of the area on her nose from which the biological samples had been taken was open on the evidence and not affected by error of fact or law.

I would order that the appeal be dismissed with costs.

DOUGLAS J:  I agree with the reasons of Justice Muir and the order proposed by him.

The interpretation of Section 30 subsection 1 paragraph (c)(ii) of the Act advanced by the appellants requires the reasonable steps taken by the respondent to be such as to assume that, in spite of her visit to the clinic chasing up the results of her tests and her subsequent two or three phone calls, the appellants would be likely to act negligently in informing her of her results.

On these facts, including the absence of anything particularly alarming in her symptoms, this seems to me to be setting the bar too high in determining the reasonableness of the steps taken by the respondent to find out the relevant material fact required by the Act.

HOLMES JA:  I agree with the reasons of both Justices Muir and Douglas.

The order will be that the appeal is dismissed with costs.

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