Desmond-Bryzak v Lander

Case [2024] QSC 72

SUPREME COURT OF QUEENSLAND

CITATION:

Desmond-Bryzak v Lander [2024] QSC 72

PARTIES:

HARRIETT DESMOND-BRYZAK

(plaintiff)

v

DR JAMES LEWIS LANDER

(defendant)

FILE NO/S:

BS 12240 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

2 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

9 and 15 February 2024

JUDGE:

Bradley J

ORDER:

The Court orders that:

1. Pursuant to section 31 of the Limitation of Actions Act 1974 (Qld), the period of limitation for the plaintiff’s action is extended so that, for the purposes of proceeding 12240 of 2019, the limitation period expired at midnight on 21 December 2018.

2.   The costs of the application up to 9 February 2024, excluding the costs thrown away by the adjournment, are the parties’ respective costs in the proceeding. 

3.   The defendant pay the plaintiff’s costs of the application after the adjournment on 9 February 2024.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – where the defendant performed pelvic mesh implant surgery on the plaintiff in November 2013 – where the plaintiff commenced proceedings against the defendant in December 2018 in New South Wales alleging negligence and claiming damages for personal injury – where the proceeding was transferred to Queensland outside of the three year expiry period for bringing personal injuries claims under section 11 of the Limitation of Actions Act 1974 (Qld) (Act) – where the plaintiff seeks an extension of the limitation period under section 31 of the Act so that it expires at midnight on the date the proceeding was commenced in New South Wales – where the plaintiff consulted various medical practitioners about her condition after the surgery – where the plaintiff joined a class action against manufacturers of the mesh in 2015 – where the plaintiff joined a Facebook group titled “Australian Mesh Injured Support Group” in 2015 – where the plaintiff made a submission to a Senate inquiry into the use of mesh – whether there is evidence to establish the plaintiff’s right of action – whether material facts of a decisive character were not within the plaintiff’s means of knowledge until a date no more than 12 months prior to commencement of the proceedings – whether the plaintiff took all reasonable steps to find out the relevant material facts of a decisive character – whether the discretion to extend the limitation period should be exercised

Civil Liability Act 2003 (Qld), ss 59, 61

Limitation of Actions Act 1974 (Qld), ss 11, 30-31

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, followed
NF v State of Queensland [2005] QCA 110, followed
State of Queensland v Stephenson (2006) 226 CLR 197, cited

Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, followed

COUNSEL:

Charles Wilson for the plaintiff

D J Schneidewin for the defendant

SOLICITORS:

AJB Stevens for the plaintiff

MinterEllison for the…

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Desmond-Bryzak v Lander [2024] QSC 72
Case
[2024] QSC 72
Decision Date

CaseChat Overview and Summary

The matter of Desmond-Bryzak v Lander was before the Queensland Court of Appeal, where the plaintiff, who had undergone a pelvic mesh implant surgery performed by the defendant in November 2013, sought an extension of the limitation period for her negligence claim against the defendant. The plaintiff commenced proceedings in December 2018, outside the three-year limitation period under section 11 of the Limitation of Actions Act 1974 (Qld). The plaintiff sought an extension under section 31 of the Act to allow her action to proceed.

The court had to determine whether the plaintiff had established that she did not know certain material facts of a decisive character until a date no more than 12 months prior to the commencement of the proceedings. The plaintiff argued that she did not know these facts until December 2017: (a) there was authoritative information available to medical specialists, including the defendant, that gave rise to a duty on the part of the defendant to warn her about the risks associated with the surgery; (b) a qualified person had expressed a view that the operation was not medically appropriate, which gave rise to a duty to not advise her to have the operation and to not perform it; (c) the symptoms she experienced after the operation were caused by the defendant’s negligence; and (d) the symptoms she experienced after the operation would be permanent and sufficiently serious to prevent her continuing in full-time employment for the balance of her expected working life.

The court found that these facts were material and of a decisive character, as they would have shown the plaintiff had reasonable and worthwhile litigation prospects if she were to pursue a right of action against the defendant, and that bringing such an action was in her interests. The court also found that the plaintiff had not taken all reasonable steps to find out the relevant material facts of a decisive character, as she had not sought expert medical advice on the risks associated with the surgery until after the limitation period had expired.

The court held that the justice of the plaintiff's case did not require the extension of the limitation period, as she had not taken all reasonable steps to find out the relevant material facts of a decisive character. The court also held that the plaintiff's knowledge of her symptoms and the general risks of surgery were not sufficient to establish her right of action.

The Court of Appeal ordered that the period of limitation for the plaintiff's action be extended so that the limitation period expired at midnight on 21 December 2018. The court also ordered that the costs of the application up to 9 February 2024, excluding the costs thrown away by the adjournment, be the parties' respective costs in the proceeding. The defendant was ordered to pay the plaintiff's costs of the application after the adjournment on 9 February 2024.

Orders

Orders of the court

The Court orders that:

1. Pursuant to section 31 of the Limitation of Actions Act 1974 (Qld), the period of limitation for the plaintiff’s action is extended so that, for the purposes of proceeding 12240 of 2019, the limitation period expired at midnight on 21 December 2018.

2. The costs of the application up to 9 February 2024, excluding the costs thrown away by the adjournment, are the parties’ respective costs in the proceeding.

3. The defendant pay the plaintiff’s costs of the application after the adjournment on 9 February 2024.

Background

Background to the litigation

It is convenient to consider this issue in two parts: firstly, to identify the material facts of a decisive character on which the plaintiff relies in seeking the extension; and secondly, to consider whether it appears that these material facts were not within the plaintiff’s means of knowledge before 22 December 2017. The material facts on which the plaintiff relies The plaintiff says she did not know these four facts before 22 December 2017:(a)There was authoritative information available to medical specialists, including the defendant, that gave rise to a duty on the part of the defendant to warn her about the things set out in paragraph [11] above. (b)A person, qualified to give an opinion, had expressed a view that the operation was not medically appropriate for a person in her position, which gave rise to a duty to not advise her to have the operation and to not perform it. (c)The symptoms she experienced after the operation were caused by the defendant’s negligence. (d)The symptoms she experienced after the operation would be permanent and sufficiently serious to prevent her continuing in full-time employment for the balance of her expected working life. Each of these is a material fact relating to her right of action.[13] To be a material fact of a decisive character, it must also meet the definition set out in s 30(1)(b) of the Act.[13]Act, ss 30(1)(a)(i), (iii)-(v). In State of Queensland v Stephenson, the majority of the High Court explained: “Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say … that in a sense none of the material facts relating to [an] applicant’s right of action is of a decisive character until a reasonable person ‘knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing’ the features described in sub-paras (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.”[14][14](2006) 226 CLR 197, 208 [29] (Gummow, Hayne and Crennan JJ). A reasonable person, knowing the facts in listed in paragraph [19] above, and having taken appropriate advice on them, would regard them as showing that the plaintiff would have “reasonable and worthwhile litigation prospects” if she were to pursue a right of action against the defendant and, if she did so, it would result in an award of damages sufficient to justify bringing the action.[15] Such a person would also regard those facts as showing that bringing such an action was in the plaintiff’s interests, taking her circumstances into account.[16] It follows that in a relevant combination, this “assemblage” of material facts[17] are material facts of a decisive character relating to the plaintiff’s right of action, within the meaning in s 31(2)(a) of the Act.[15]Act, s 30(1)(b)(i).[16]Ibid s 30(1)(b)(ii).[17]Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 437 (Macrossan CJ).

Evidence

Evidence Before The Court

The plaintiff must also show that the justice of her case requires the extension.[9] [9]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553-554 (McHugh J). The plaintiff’s evidence to establish her right of action The plaintiff relies on reports by medical specialists.[10] (a)A gynaecologist and urogynaecologist, who is also a conjoint professor of obstetrics and gynaecology, says that the operation “was considered experimental” as late as 2015. He also says it was known in 2013 that chronic and severe pain, more severe dyspareunia, hispareunia, mesh erosion and mesh contraction, and resulting repeat surgery, were complications that could arise from mesh implant surgery, and that such consequences did not arise from more traditional surgical options, such as native tissue repair. In his opinion, it was inappropriate for the defendant to offer the plaintiff mesh implant surgery. (b)A consultant obstetrician and gynaecologist, who is also a professor of obstetrics and gynaecology, cites a 2011 study which found that incidences of groin and thigh pain related to mid-urethral transobturator sling placement arose in up to 40% of patients who were the subject of the study. In his opinion, the plaintiff’s persisting pain was likely due to nerve entrapment or damage which was “a recognised complication” of mesh surgery with sacrospinous fixation. [10]The plaintiff also relies on written information the defendant’s office gave her. It stated that the long-term success rate of the procedure was “not known”. She says the defendant did not draw this to her attention and she did not notice it before the operation. At a trial, the plaintiff would seek to persuade the Court that the defendant was under a duty to warn her about the nature of the operation and risks associated with it. Specifically, the plaintiff says the defendant had a duty to warn her: (a)that the procedure he proposed to perform in the operation was experimental; (b)that there were more traditional and non-surgical options open to her; and (c)that there was a risk that the procedure would result in chronic pain. The case for such a duty might be said to be strong because the risks of injury identified by the medical specialists in their reports would not be apparent to a patient. The plaintiff says the defendant failed to warn her of these things. Her evidence is to the following effect: (a)On 20 August 2013, in her first consultation, the defendant recommended the operation, describing it as “the only thing we could do”, and saying it would involve “pig membrane [that] will hold everything in place” and “tape to deal with the stress urinary incontinence and fix that problem.” (b)On or around 5 September 2013, the defendant said, “If you want to do physio, I’ll give you a referral. But it’s not going to help you. You need surgery. …surgery is the only way to fix it.”[11](c)On 7 November 2013, the defendant told her, “Your physio is not working. The next option is surgery.” The defendant again recommended the operation as “the only way to fix my problem.” On this date the plaintiff signed the necessary consent forms for the operation. [11]The plaintiff’s husband has given his recollection of this consultation, which seems to corroborate the plaintiff’s evidence.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On 28 November 2013, the plaintiff underwent surgery involving a pelvic mesh implant[1] (the operation) which was performed by the defendant at a Brisbane hospital. On 21 December 2018, the plaintiff commenced an action against the defendant alleging negligence and claiming loss and damages for resulting personal injury.[2] The action is now in this Court.[3] [1]The plaintiff describes the operation as a vaginal repair with second-generation biograft, with sacrospinous fixation sutures with transobturator insertion of mid-urethral tension free vaginal tape. One of the defendant’s expert reports describes it as a posterior vaginal repair with a biological small intestinal submucosa graft and sacrospinous colpopexy with a Monarc tape sling inserted. Neither party contended there was any relevant material difference on this point. [2]The plaintiff claims her injury was caused by the defendant’s negligence, including breach of contractual duty and breach of statutory guarantees (of due care and skill and of fitness for purpose) arising under the Australian Consumer Law (Competition and Consumer Act 2010 (Cth) sch 2). The defendant accepts the proceeding was validly commenced, although the plaintiff had not then complied with the pre-proceeding provisions of the Personal Injuries Proceedings Act 1994 (Qld) (PIPA). [3]The action was commenced in the Supreme Court of New South Wales. It was transferred to this Court by an order made on 4 October 2019. See: Hartmann v Lander [2019] NSWSC 1351. The parties have now completed the statutory pre-court processes for a personal injury claim set out in the PIPA. They have made disclosure and exchanged expert evidence. In Queensland, a negligence action, in which damages for personal injury are claimed, cannot be brought after the expiration of three years from the date on which the cause of action arose.[4] It is accepted by both parties that the limitation period for the plaintiff’s claims expired in December 2016 or January 2017.[5] [4]This is the effect of s 11(1) of the Limitation of Actions Act 1974 (Qld) (Act). [5]The parties assume the limitation period applies to all the causes of action the plaintiff advances against the defendant in the proceeding. By then, the plaintiff knew the implanted mesh had caused her harm. She had suffered persistent chronic pain since the operation. She had sought professional treatment in the hope that it could be resolved. She had been advised to be patient. She had had a series of recommended medical procedures. Some gave her temporary relief. All required periods of recovery. She had been diagnosed with post-traumatic stress disorder and was being treated by a psychiatrist with medications for major depressive disorder and mood disorder. She had joined a class action against the manufacturer of the mesh. She had urged a Senate inquiry to recommend a ban on its use. None of her treating specialists had suggested that the defendant had been negligent. Nor had her class action lawyers. The scale of her loss and damage would not become apparent until more than a year after the limitation period expired.