Desmond-Bryzak v Lander

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.