Elliott v Walker - [2009] QDC 355

DISTRICT COURT OF QUEENSLAND

CITATION:

Elliott v Walker & others [2009] QDC 355

PARTIES:

COLIN ANDREW ELLIOT  (Applicant)
v
DON WALKER  (First Respondent)
and
STATE OF QUEENSLAND               (Second Respondent)
and
SCHERING-PLOUGH PTY LTD        (Third Respondent)

FILE NO/S:

D 193 of 2009

DIVISION:

District Court of Queensland, Maroochydore

PROCEEDING:

Civil Proceeding

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

30 November 2009

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

24 November 2009

JUDGE:

J.M. Robertson DCJ

ORDER:

The application is dismissed with costs including reserved costs.

CATCHWORDS:

CONTRACTS TORTS AND PERSONAL INJURY LIMITATION OF ACTIONS – applicant wishes to continue claim against first and second respondents based on medical negligence – where applicant has obtained two specialist reports that do not comply with s 9A (9) (d) of the Personal Injuries Proceedings Act 2002 (Qld); whether discretion should be exercised in favour of applicant notwithstanding this non-compliance, where cause of action arises out of alleged breach of duty of care in applicant’s participation in a drug trial.

Legislation:

Personal Injuries Proceedings Act 2002 (Qld)

Civil Liability Act 2003 (Qld)

Cases Considered:

Cousins v Mt Isa Mines Limited [2006] QCA 261

Hare v Mt Isa Mines Limited & Ors [2009] QCA 91

COUNSEL:

Mr D. Crews for Applicant

Mr D. Schneidewin for 1^st and 2^nd Respondents

SOLICITORS:

AB Law for Applicant

Cooper Grace Ward for 1^st and 2^nd Respondents

The applicant Colin Andrew Elliott wishes to continue proceedings against Dr Don Walker and the Nambour Hospital (State of Queensland) for personal injuries consequent upon medical negligence. It is common ground between the parties that Mr Elliott’s Notice of Claim under the Personal Injuries Proceedings Act 2002 (“the PIPA”), is non-compliant. Mr Elliott now applies to this Court to authorise him to proceed further with the claim despite the non-compliance. His application is pursuant to s 18(1)(c)(ii) of the PIPA.

Mr Elliott entered a clinical trial of tailored therapy with Peg Interferon Alfa 2B and Ribavirin conducted by Dr Walker at the Nambour Hospital on 17 August 2006. Mr Elliott then suffered from Hepatitis C probably contracted in his youth as a result of intravenous drug use.

Mr Elliott first consulted Dr Walker who was a gastroenterologist and herpetologist on 10 August 2006 and entered the trial a week later. The trial was conducted by Dr Walker at the Nambour General Hospital where he was then head of the Hepatitis Clinic. The trial was sponsored by the Third Defendant, Schering-Plough Pty Ltd a drug company. The third defendant is not a party to this application.

At the time he entered the trial, Mr Elliott signed a document headed “Participant Information Statement and Consent Form”, an 11 page document which included a Section 6 Risks and Discomforts which included this paragraph:

“Depression has been observed in up to ⅓ of the subjects treated with Peg interferon. Rare events such as suicidal behaviour including thoughts about committing suicide, suicide attempts and completed suicides have been reported in…

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 Elliott v Walker

Details

AGLC: Elliott v Walker [2009] QDC 355
Case: [2009] QDC 355
Decision Date: 30 November 2009

CaseChat Overview and Summary

The case of Elliott v Walker involves the applicant seeking to continue a claim against the first and second respondents on the basis of medical negligence. The applicant has obtained two specialist reports but these do not comply with section 9A(9)(d) of the Personal Injuries Proceedings Act 2002 (Qld). The core issue before the court was whether the applicant's failure to comply with the statutory requirements should result in the dismissal of the claim, and if the discretion under the Act should be exercised in favour of the applicant. The crux of the dispute is whether the court should permit the continuation of the claim despite non-compliance with the statutory prerequisites for medical negligence claims, particularly given that the cause of action stems from an alleged breach of duty of care during the applicant's participation in a drug trial.

The court considered whether the statutory requirements for expert evidence were mandatory or directory. It was established that section 9A(9)(d) of the Act sets out mandatory requirements for expert evidence in personal injury proceedings, and non-compliance with these provisions generally results in the dismissal of the claim. However, the court also recognised that the legislature intended for the discretion under section 9A(8) to be exercised where strict compliance with the statutory provisions would result in a failure of justice. In this case, the court had to balance the mandatory nature of the statutory requirements against the overarching intent to prevent a failure of justice. The applicant argued that the statutory requirements were not strictly adhered to due to circumstances beyond their control, including the availability of appropriate experts and the urgency of the matter.

The court determined that while the statutory requirements are mandatory, the discretion under section 9A(8) could still be exercised where non-compliance would result in a failure of justice. However, in this instance, the court found that the applicant had not demonstrated sufficient grounds for exercising this discretion. The applicant's inability to comply with the statutory requirements was not due to any exceptional circumstances, but rather a failure to properly manage the preparation of the expert evidence. Consequently, the court dismissed the application with costs, including reserved costs.

The court's decision underscores the importance of adhering to statutory requirements in personal injury proceedings, while also acknowledging the potential for discretion where strict compliance would lead to a significant injustice. In this case, the court found that the applicant's failure to comply with the statutory provisions was not due to any exceptional circumstances, and therefore the discretion was not exercised in favour of the applicant. The dismissal of the application and the awarding of costs reflect the court's view that the statutory requirements are intended to be followed, and non-compliance, without justification, will generally result in the claim being dismissed.

Orders

Orders of the court

The application is dismissed with costs including reserved costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Elliott v Walker & others [2009] QDC 355
PARTIES:	COLIN ANDREW ELLIOT (Applicant) v DON WALKER (First Respondent) and STATE OF QUEENSLAND (Second Respondent) and SCHERING-PLOUGH PTY LTD (Third Respondent)
FILE NO/S:	D 193 of 2009
DIVISION:	District Court of Queensland, Maroochydore
PROCEEDING:	Civil Proceeding
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	30 November 2009
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	24 November 2009
JUDGE:	J.M. Robertson DCJ
ORDER:	The application is dismissed with costs including reserved costs.
CATCHWORDS:	CONTRACTS TORTS AND PERSONAL INJURY LIMITATION OF ACTIONS – applicant wishes to continue claim against first and second respondents based on medical negligence – where applicant has obtained two specialist reports that do not comply with s 9A (9) (d) of the Personal Injuries Proceedings Act 2002 (Qld); whether discretion should be exercised in favour of applicant notwithstanding this non-compliance, where cause of action arises out of alleged breach of duty of care in applicant’s participation in a drug trial. Legislation: Personal Injuries Proceedings Act 2002 (Qld) Civil Liability Act 2003 (Qld) Cases Considered: Cousins v Mt Isa Mines Limited [2006] QCA 261 Hare v Mt Isa Mines Limited & Ors [2009] QCA 91
COUNSEL:	Mr D. Crews for Applicant Mr D. Schneidewin for 1^st and 2^nd Respondents
SOLICITORS:	AB Law for Applicant Cooper Grace Ward for 1^st and 2^nd Respondents