Ervin v Brisbane North Regional Health Authority

[1994] QCA 424

IN THE COURT OF APPEAL	[1994] QCA 424
SUPREME COURT OF QUEENSLAND

Appeal No. 267 of 1993.

Brisbane

[Ervin v. Brisbane North Regional Health Authority]

BETWEEN:

BETTY ERVIN

(Plaintiff) Appellant

AND:

BRISBANE NORTH REGIONAL HEALTH

AUTHORITY

(First Defendant) First Respondent

AND:

WILLIAM THOMAS SUGARS

(Second Defendant) Second Respondent

____________________________________________________________
_____

Pincus J.A. Davies J.A. Williams J.

____________________________________________________________

_____

Judgment delivered 20/10/1994

Separate reasons for judgment of each member of the Court;
Davies J.A. and Pincus J.A. concurring as to the orders to
be made, Williams J dissenting.
____________________________________________________________
_____

APPEAL ALLOWED. ORDERS MADE BELOW ON 7 OCTOBER 1993 SET ASIDE. IN LIEU, ORDER THAT THE PERIOD OF LIMITATION BE EXTENDED SO THAT IT EXPIRES AT THE END OF ONE YEAR FROM 25 FEBRUARY 1992. RESPONDENTS TO PAY APPELLANT'S COSTS OF AND INCIDENTAL TO THIS APPEAL TO BE TAXED. COSTS OF AND INCIDENTAL TO THE DISTRICT COURT APPLICATION TO BE COSTS IN THE CAUSE.

____________________________________________________________

_____

CATCHWORDS:	LIMITATION OF ACTIONS - Appeal for extension - appellant had knee replacement operation in 1985 - knee continued to cause her pain - in 1989 specialist informed her that the pain was a result of the knee operation which had been incorrectly performed - Appellant thereupon engaged solicitors to bring negligence action - appellant required legal aid - delays experienced in obtaining medical report to effect that operation had been incompetently performed - plaint filed in February 1993 - whether material fact relating to appellant's right of action was within appellant's means of knowledge prior to February 1993.
Limitation of Actions Act 1974 ss. 30, 31.
Counsel:	Mr R Alldridge for the appellant. Mr P McMurdo Q.C. for the respondents.
Solicitors:	Bowdens for the appellant. Corrs, Chambers, Westgarth for the respondents.
Date of hearing:	22 July 1994.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 267 of 1993.

Brisbane

[Ervin v. Brisbane North Regional Health Authority]

Before	Pincus J.A. Davies J.A. Williams J.
BETWEEN:

BETTY ERVIN

(Plaintiff) Appellant

AND:

BRISBANE NORTH REGIONAL HEALTH

AUTHORITY

(First Defendant) First Respondent

AND:

WILLIAM THOMAS SUGARS

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 20/10/1994

I have read the reasons of Williams J which make it unnecessary to set out the facts. My initial impression was that the primary judge's decision must be affirmed, but further reflection on the case has brought me to the opposite conclusion.

The appeal cannot succeed unless it is shown that a material fact of a decisive character relating to the right of action was not within the appellant's means of knowledge until after 11 February 1992. The expression "material fact of a decisive character" is the subject of at least a partial definition in s. 30(b) Limitation of Actions Act 1974 and it is para. (ii) of that provision which appears to be of present importance. Its effect is rather complex and is that a material fact relating to the appellant's right of action is of a decisive character if, but only if, a reasonable person, knowing that fact and having taken the appropriate advice on that fact, would regard it as showing that the appellant ought in the appellant's own interests, and taking the appellant's circumstances into account, to bring an action on the right of action to which the material fact relates. To put this briefly in a way which emphasises one aspect of it, the question whether a fact is of a decisive character, in the case of this appellant, depends on whether it should have induced the appellant to sue.

Before 11 February 1992 the appellant had been for some years aware that the knee which was operated on in 1985 was painful and the movement in it limited; she knew that Dr Sonnabend attributed this to the prothesis being 5-6 degrees out of alignment, and that Dr Sonnabend regarded the operation as a "botched job".

What she did not know before 11 February 1992 was whether any qualified specialist was prepared to commit himself or herself to an opinion that the operation was done negligently and incompetently; she knew that Dr Sonnabend was not prepared to do so.

The difficulty for the respondent on this question is, as it seems to me, that the Court is not only entitled but obliged to take into account the appellant's circumstances, in determining whether she ought to have sued before 11 February 1992. It is true that the relevant provision formulates a test which has an objective element - one must consider whether a reasonable person, knowing the relevant facts and having taken the appropriate advice on them, would regard those facts as showing what is set out in subpara. (ii) - but that subparagraph itself poses the question:

"Should the appellant herself have sued?" She was, it appears, dependent upon legal aid and the solicitors she had engaged were not prepared to risk their own funds; they wished to obtain a written medical advice, at legal aid expense, before they would proceed with the matter.

To conclude that the appellant ought to have sued before 11 February 1992 one would have to postulate that it was unreasonable on her part to refrain from doing so, although bringing an action would have involved her in either trying to find a solicitor who was prepared to take the case on without having a written favourable opinion from a suitable medical witness, or on the other hand suing unrepresented. Subject to one consideration still to be mentioned, the better view would appear to be that one cannot say that the appellant, taking her circumstances into account, ought to have brought an action before 11 February 1992.

That consideration arises from the reference to "means of knowledge" in s. 31(2)(a); this makes relevant not only what the appellant knew, but also whether she had "taken all reasonable steps to ascertain" the missing information: see s. 30(d)(ii). What the appellant did was to make some inquiries of Dr Sonnabend in 1987 and to inquire further of him in 1989. After being told by Dr Sonnabend that her knee symptoms were the result of the 1985 operation, she engaged solicitors. Subsequently, as it appears to me, she relied on her solicitors, both to deal with Sonnabend - unsuccessfully, as matters turned out - and, subsequently, to try to get a suitable opinion from another specialist, Dr Roebuck. It seems to me that it was a reasonable course to engage solicitors to undertake these tasks; it will have been noted that she took this step promptly after Dr Sonnabend expressed the opinion that her knee trouble was the result of the operation. Thereafter, the solicitors did not manage to move the claim along quickly, but it is not shown that the stage was ever reached at which, acting reasonably, the appellant ought to have sought other legal advice, or that in any other respect she failed to take all reasonable steps.

In my opinion, then, the appeal should be allowed on the ground that, to put it briefly, what the appellant knew or ought reasonably to have found out before 11 February 1992 was not such that she ought to have sued on it. I agree with the orders proposed by Davies J.A.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND Appeal No. 267 of 1993

Brisbane

[Ervin v. Brisbane North Regional Health Authority & Anor]

Before	Davies J.A. Pincus J.A. Williams J.
BETWEEN:

BETTY ERVIN

(Plaintiff) Appellant

- and -

BRISBANE NORTH REGIONAL
HEALTH AUTHORITY

(First Defendant)

First Respondent

- and -

WILLIAM THOMAS SUGARS

(Second Defendant)

Second Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 20/10/94

As the principal facts and relevant statutory provisions are set out fully in the reasons of Williams J which I have had the advantage of reading, I shall not repeat them. The question is whether the appellant established, to the satisfaction of the Court, that a material fact of a decisive character relating to her right of action against, specifically, the second respondent, was not within her means of knowledge until 25 February 1992 when she received Dr Roebuck's report. That material fact must be that Dr Sugars had performed her right knee arthroplasty negligently or, as the appellant put it, incompetently. The learned primary judge held that that material fact was within the appellant's knowledge or means of knowledge by, at the latest, July 1990.

Though it is not clear why his Honour chose July 1990, the evidence upon which he relied for his conclusion was:

1. The appellant's sworn statement that, sometime after speaking to her solicitors on 3 July 1989, she was told by Dr Sonnabend, a Sydney orthopaedic specialist, that pain and immobility in her right knee was caused by the prosthesis, installed by Dr Sugars, being five to six degrees out of alignment; and

2. The statement contained in the appellant's solicitor's letter to the Legal Aid Office of 21 July 1989 that "she was only informed by Dr Sonnabend in the last month that the operation was 'a botch job' and that this was the cause of her pain".

The first of these cannot, without more prove negligence. The second may or may not do so, depending on how it is interpreted. Unexplained, the more likely interpretation is that Dr Sonnabend thought that the operation was performed negligently. But it is possible that he was saying no more than that there was an error in its performance. Subsequent correspondence between the appellant's solicitor and Dr Sonnabend, in my view, supports the latter interpretation.

The appellant's solicitor, in his letter to Dr Sonnabend of 16 May 1990 to seek his written opinion, said:

"We are instructed by our client that in one of her consultations with you, you intimated that Dr Sugars did not perform the operation successfully."

That is a somewhat surprising statement to make if Dr Sonnabend had already, in effect, said that the operation had been performed negligently. So also is the later statement in that letter that:

"If you already hold the view that there was no incompetence on the part of Dr Sugars and we are wasting our time seeking this report from you, we would prefer it if you would simply advise us of this fact and return our cheque."

But both are consistent with the latter interpretation.

In his reply, Dr Sonnabend, after acknowledging receipt of the solicitor's letter said:

"In your words, I believe that you are 'wasting your time seeking a report from me'. Please find your cheque enclosed."

Again this supports the latter interpretation. Of course it is possible that Dr Sonnabend was simply reluctant to express his real opinion in writing, but his response is consistent only with his conclusion that there was no negligence.

As they appear to be in agreement on this question I think it is permissible, for present purposes, to look at these letters in order to clarify what Dr Sonnabend meant to convey to the appellant when he informed her in July 1989 that the operation was a "botch job". Looked at in the light of these, it is more likely, in my view, that he was saying no more than that there had been an error made in the performance of the operation.

It follows from this, in my view, that the appellant did not then have, within her knowledge or means of knowledge, the fact that Dr Sugars was negligent. Indeed, the only opinion which she had received was to the contrary;

that there had been an error in performing the operation, but that it had not been a negligent one. It also necessarily follows that that fact did not come within the means of knowledge of the appellant until she received Dr Roebuck's report on 25 February 1992. As this date was outside the limitation period and within one year of the institution of the proceedings in this action the Court may order that the period of limitation be extended so that it expires at the end of one year from 25 February 1992.

No material was filed by either respondent in opposition to the application and no submission was made to this Court that it should exercise its discretion against ordering the extension. Although more than nine years has now elapsed since the arthroplasty operation was performed, the main evidence on the question whether the operation was negligently performed will be from specialist medical practitioners. There is nothing in Dr Roebuck's reports which indicates that the expression of any relevant opinion on that question has been rendered more difficult by the passage of time. I would therefore grant the extension.

I would allow the appeal, set aside the order made below and make an order extending the period of limitation so that it expires at the end of one year from 25 February 1992. I would also order that the respondents pay the appellant's costs of the appeal, to be taxed, and that the costs of the District Court application be costs in the cause.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 267 of 1993

Brisbane
[Ervin v. Brisbane North Regional Health Authority & Anor]

Before Pincus JA

Davies JA

Williams J

BETWEEN:

BETTY ERVIN

(Plaintiff) Appellant

AND:

BRISBANE NORTH REGIONAL HEALTH AUTHORITY

(First Defendant)

First Respondent

AND:

WILLIAM THOMAS SUGARS

(Second Defendant)

Second Respondent

REASONS FOR JUDGMENT - G N WILLIAMS J

Judgment delivered 20/10/1994

On 4 March 1985 the appellant underwent an operation conducted by the second respondent in a hospital operated by the first respondent during which a right knee arthropalsty was performed; that is she had knee reconstruction surgery.

By plaint filed 11 February 1993 she claimed damages against each respondent alleging that each was negligent in carrying out that operation and that in consequence she suffered loss and damage. As is immediately obvious, that action was commenced well outside the ordinary limitation period (3 years) applicable to such cause of action. Then by summons filed 25 August 1993, the appellant sought an order that the period of limitation be extended pursuant to s. 31 of the Limitation of Actions Act 1974. The learned District Court Judge before whom the application came, dismissed it for reasons which he published. From that decision the appellant has appealed, pursuant to leave, to this Court.

The principal submission on behalf of the appellant before the District Court Judge, and repeated again in this Court, is that certain "material facts" for purposes of s. 31 only came to the knowledge of the appellant on 25 February 1992 when the report, dated 20 February 1992, was received from Dr Roebuck. Those "material facts" were identified by counsel for the appellant as being the following matters:

a)   Guidance instruments were available for the proper placement of components involved in the knee reconstruction;

b)    Proper placement is crucial to proper functioning;

c)    Femoral fixation pins should have been used;

d)    The knee replacement was performed incompetently.

It is necessary to recite certain other facts before it is possible to evaluate the appellant's argument.

The appellant was discharged after the surgery in March 1985 with no apparent complications. But over a period of time, she found that movement in her right knee was extremely limited, and the joint became increasingly painful on weight-bearing. She was also suffering from rheumatoid arthritis in other joints, and in about June 1987 she had a shoulder replacement operation performed in Sydney by a Dr Sonnabend. During that period, she also enquired of Dr Sonnabend whether he could do anything for her painful knee.

He advised her to wait until after the shoulder operation. Then in about June 1989 he advised her that her then

current knee symptoms "were the result of the previous operation". She spoke to Sydney solicitors or on about 3 July 1989 regarding a compensation claim against the second respondent. In a legal aid application dated 3 July 1989, she provided the following details of "the problem for which you need legal aid":

"In an operation on 4 March 1985 at Prince Charles Hospital for a replacement knee joint, Mrs Ervin was fitted with the wrong size knee joint. As a result she can only bend her knee 45 degrees, excruciating pain, can't attend to her own foot care or put her own shoes and socks on, can't get in and out of cars easily, and can't walk on it properly."

It is not clear from the material in the record what was the source of the information stated therein; who said she was "fitted with the wrong size knee joint", and who said she "can only bend the knee 45 degrees".

According to the appellant, in her affidavit, after speaking to the solicitors on 3 July and completing the legal aid form, she subsequently spoke with Dr Sonnabend "about the cause of my knee problems". She claims that he then informed her of the following matters:

a)    The pain and immobility in her right knee was caused by the prosthesis being 5 degrees to 6 degrees out of alignment; and

b)    He could repair the knee but said it could not be done without a transfusion of 3 or 4 litres of blood.

The latter matter was relevant because, on religious grounds, the appellant would not accept a blood transfusion.

As is established by the affidavit of David Hirsch, solicitor, the legal aid form, which is dated 3 July, was forwarded to the Legal Aid Office under cover of a letter from the solicitors dated 21 July 1989. That letter contains the following passages which are relevant for present purposes:

"Since the operation she has suffered enormous pain in the knee. She can only bend the knee to 45 degrees, cannot attend to her own foot care or put on shoes, has a marked limp, walks with a stick and is obviously in considerable pain.

. . . Her own doctor, when questioned, stated that the knee joint is not the wrong size, but it is in fact placed approximately 5 degrees in the wrong direction, and this is what is causing her the great pain.

. . .

We realise that Mrs Ervin's possible action falls outside the limitation period. However, we are instructed that whilst she consulted doctors after her operation, she was only informed by Dr Sonnabend in the last month that the operation was 'a botched job' and that this was the cause of her pain. In our view this will be sufficient to ground an application for an extension of time."

One can only assume that the 5 degree mal-alignment was something she learnt from Dr Sonnabend.

When the letter dated 7 November 1989 from the Royal North Shore Hospital was received by the solicitors on 13 November 1989 they had additional evidence that the appellant had only a range of movement in her knee from 0 degrees to 45 degrees. The solicitors also wrote to Dr Sonnabend on 14 September 1989 seeking a written report with respect to the appellant's knee. Up until then it would appear that Dr Sonnabend's views had only been expressed orally to the appellant personally; for example, there was nothing in writing to confirm his view that the original operation was "a botched job" or that the prosthesis was not correctly aligned. That doctor replied by letter of 23 September 1989 asserting certain terms and conditions upon which he would be prepared to furnish a report.

Amongst other things, he referred to a fee of $200. Apparently the Queensland Legal Aid Office would not make that amount payable until they were provided with the doctor's "academic qualifications and expertise in relation to orthopaedic matters". On 13 March 1990, Dr Sonnabend provided his curriculum vitae as requested, and also said in that letter:

"Please note that any medico-legal reports are provided subject to the understanding that Dr Sonnabend will not be called to court".

Approval of legal aid to obtain Dr Sonnabend's report was received on 9 May 1990, and on 16 May the solicitors wrote to him. That letter indicated they were seeking his "report to assist us in evaluating whether or not there is a case in medical negligence to pursue". It also recited the appellant's knowledge or understanding that the prosthesis was cemented 5 degrees in the wrong direction. The last paragraph thereof was in these terms:

"If you already hold the view that there was no incompetence on the part of Dr Sugars and we are wasting our time seeking this report from you, we would prefer it if you would simply advise us of this fact and return our cheque. We have no inclination to throw away $200 for no purpose at all."

That elicited the following response from Dr Sonnabend in a letter dated 26 October 1990:

"In your words, I believe you are 'wasting your time seeking a report from me'. Please find your cheque enclosed".

It was argued strongly by counsel for the appellant that that last letter indicated, or at least carried the strong inference, that Dr Sonnabend did not consider that there was any medical negligence involved. I am by no means sure that that is so. Given the history of dealings between the solicitors and Dr Sonnabend, it is equally as likely that he was simply saying that he wanted to have nothing more to do with the matter.

In March 1991, the solicitors spoke to Dr Roebuck on the telephone and on 21 March 1991 he wrote a letter indicating his willingness to give an opinion but saying it "would require a considerable amount of time and research".

He asked for a fee of $1,000 for the work involved.

According to Hirsch, legal aid to obtain a report from Dr Roebuck was granted on 29 May 1991 and 6 June 1991 a formal letter was sent to that doctor asking for his report. That letter said that the solicitors have been "authorised to obtain your report to assist us in evaluating whether or not there is a case in medical negligence to pursue". Further, that letter indicated that the solicitors understood "that the prosthesis was cemented in place approximately 5 degrees in the wrong direction. We believe that it is this misplacement of the prosthesis that is the cause of our client's significant pain". The report from Dr Roebuck is dated 20 February 1992. It refers to the fact that he saw the appellant on 4 occasions (25 June 1991, 11 July 1991, 16 January 1992, and 30 January 1992). He noted that the prosthesis inserted during the operation on 4 March 1985 "was a Geo-Patella Total Knee Replacement which is a cruciate retaining (relatively rigid) type of prosthesis and this type of prosthesis was phased out of use in Australia about the time of Mrs Ervin's surgery". His report indicates that he had x-rays taken on 25 June 1991 which showed "a band of lucency between cement and bone in the tibial component and between metal and cement and bone in the femoral component indicating loosening of both parts of the prosthesis", and that the "femoral component is retro flexed insufficiently".

His report then went on to say relevantly:

"Guidance instruments are available for the proper placement of the components of a knee replacement. Such proper placement is crucial to proper

function of the prosthesis. When a femoral
prosthesis is installed femoral fixation pins
should be used and retro flexed 20 degrees.
Either these were not used or they were
incorrectly placed as Mrs Ervin's femoral
component is not retro flexed 20 degrees. This
femoral component misplacement has caused all her
problems."

Finally Dr Roebuck expressed the conclusion that "this predicament in which Mrs Ervin now finds herself stems from an incompetently performed knee replacement by Dr Sugars on 4 March 1985".

The respondents were prepared to concede before the District Court Judge, and again in this Court, that the appellant was not possessed of all "material facts" for purposes of s. 31 of the Limitation of Actions Act until about July 1989. Counsel for the respondents submitted that by about July 1989, the appellant was possessed of all relevant facts so that then, acting on "appropriate advice", she should have commenced the action. The submission on behalf of the respondents, which was accepted by the District Court Judge, was that nothing which the appellant learned from Dr Roebuck in February 1992 materially advanced her state of knowledge as to her cause of action against the respondents.

It should also be noted that Dr Roebuck incorporated extracts from some medical journals into his report, and he also referred therein to an article in 1976. The clear inference from the appellant's material is that it was generally known in 1989 that guidance instruments were available for proper placement of components during knee replacement surgery, that proper placement was crucial to proper functioning, and that sound practice required the use of femoral fixation pins.

On that basis, and this was the argument advanced by counsel for the respondents, all that the appellant obtained on receipt of Dr Roebuck's report was the name of a doctor who was prepared to give evidence in Court as to the alleged medical negligence.

On the material, the learned District Court Judge concluded "that there was in the plaintiff and her legal advisers, certainly by July 1990, knowledge of sufficient material facts which would have led a reasonable person appropriately advised to regard those facts as showing there was a good cause of action, and that proceedings ought to have been brought. In my view no material fact of a decisive character came to the plaintiff's knowledge after the time discussed above". In consequence, he dismissed the application.

Section 31 confers on the Court the power to extend the limitation period where the conditions specified in subs. (2)(a) and (b) are satisfied; sub-para. (a) is the critical one for present purposes. What the appellant must establish thereunder is that "a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action". A number of the expressions therein are defined in s. 30. Once that condition is established the Court "may order that the period of limitation for the action be extended so that it expires at the end of one year after that date". A consequence of that is that once it is concluded that all material facts of a decisive character relating to the right of action were within the means of knowledge of the applicant by a certain date, the Court can only extend the limitation period for one year from that date. Given the argument in the present case, if all material facts of a decisive character relating to the appellant's right of action were within her means of knowledge by mid-1989 or mid-1990, the Court would not be able to extend the limitation period to encompass the action commenced in February 1993. In order to succeed, it is therefore necessary for the appellant to show that a material fact of a decisive character relating to the right of action only came within her means of knowledge after 11 February 1992.

In other words in practical terms, she must establish that a material fact of a decisive character relating to her right of action only came within her means of knowledge upon receipt of the report from Dr Roebuck.

Given the foregoing analysis of relevant facts known to the appellant over the period of time from June 1989 to February 1992, the only matter which could arguably meet the required description is the fact of Dr Roebuck's opinion that the knee replacement operation was performed "incompetently". But that adds nothing to the fact known shortly after July 1989 that the prosthesis inserted during the operation was 5 degrees to 6 degrees out of alignment.

During the course of argument, some discussion centred upon the meaning of, and application to the facts of this case of, para. (ii) of the definition of "material facts" found in s. 30(b). Material facts relating to a right of action are of a decisive character if, but only if, a reasonable person knowing those facts and having taken the appropriate advice, would regard them as showing "that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action".

The reference to that provision was made in the context of the respondents' submission that the appellant had knowledge of all material facts in 1989 so that she then ought, in her own interests, to have brought an action in negligence against the hospital and the doctor. Clearly at that time she had the benefit of legal advice, and she said in her affidavit that she went to the particular firm of Sydney solicitors in July 1989 because she had heard of their "having expertise in complex medical litigation". It may well be true that the appellant was entirely dependent upon the solicitors' advice as to whether or not a sufficient basis existed to warrant commencing an action, and it is certainly true that she did not have the funds herself to meet the costs thereof. But even taking those matters into consideration, it seems clear that all material facts were known in mid-1989. All that came to light later was the fact that Dr Roebuck was prepared to give evidence tending to prove the material facts then known to the appellant and her legal advisers.

In all the circumstances, the learned District Court Judge was correct in concluding that no fact of a decisive character relating to the right of action only came within the means of knowledge of the applicant within a period of twelve months prior to the commencement of the action.

In consequence in my opinion the appeal should be dismissed with costs.