Campbell & Anor v. Bleakley

[2007] QSC 351

SUPREME COURT OF QUEENSLAND

CITATION:

Campbell & Anor v Bleakley [2007] QSC 351

PARTIES:

ROSS LESLIE CAMPBELL

(first plaintiff)

AND

HELEN LEANNE CAMPBELL

(second plaintiff)

V

DR DAVID BLEAKLEY

(defendant)

FILE NO/S:

BS 10612 of 2004

DIVISION:

Trial

PROCEEDING:

Application for extension of time

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2007

JUDGE:

Daubney J

ORDER:

1. That the period of limitation for the plaintiffs’ actions against the defendant for damages for personal injuries sustained as a result of surgery on or about 13 June 1999 be extended, pursuant to s 31(2) of the Limitation of Action Act 1974 (Qld), to 3 December 2004.

2.     The costs of and incidental to this application be reserved.

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER - where first plaintiff suffered injury from surgery performed by defendant – whether material fact of decisive character – whether within means of knowledge of the first plaintiff - whether limitation period should be extended

Health Rights Commission Act 1991 (Qld), s 91
Limitation of Actions Act1974 (Qld), s 30(1), s 31(2)
Personal Injuries Proceedings Act2002 (Qld), s 43(1)
Dick v University of Queensland [2000] 2 Qd R 476, applied.

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, cited.

COUNSEL:

D Reid for the plaintiffs.

G Diehm for the defendant.

SOLICITORS:

Murphy Schmidt for the plaintiffs.

Blake Dawson Waldron for the defendant.

1. DAUBNEY J: The plaintiffs have applied for an order that the period of limitation for their action against the defendant for damages for personal injuries sustained as a result of surgery performed by the defendant on the first plaintiff on 13 June 1999 be extended pursuant to s 31(2) of the Limitation of Actions Act1974 (Qld) (‘LAA’).

1. On 3 December 2004, the plaintiffs filed this proceeding, by which the first plaintiff claims damages for personal injuries suffered as a result of the negligence and/or breach of contract of the defendant, and the second plaintiff claims damages for loss of consortium and loss of servitium. 

1. On the first plaintiff’s evidence, in 1998 and 1999 he suffered from episodes of significant chest pain, and consulted his then general practitioner, Dr Phillips, who arranged a series of tests which indicated that there was no problem with the first plaintiff’s heart.  Dr Phillips then referred the first plaintiff to the defendant, who was a general surgeon.  The first plaintiff saw the defendant, who recommended that the first plaintiff undergo an endoscopy and gascroscopy.  The first plaintiff says that after these procedures were performed, the defendant informed him that he had a gastric ulcer, reflux and an hiatus hernia. 

1. On 25 June 1999, the first plaintiff saw Dr Phillips again, who prescribed Zoton to treat his condition. 

1. On 1 July 1999, the first plaintiff saw the…