| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ESPINOS -v- CHONG [2013] WADC 174 CORAM : GOETZE DCJ HEARD : 14 & 30 OCTOBER 2013 DELIVERED : 8 NOVEMBER 2013 FILE NO/S : BUN CIVO 3 of 2013 BETWEEN : GARY KEITH ESPINOS Plaintiff
AND
ALLEN CHONG
Defendant
Catchwords: Originating summons seeking leave to commence action after more than three years had elapsed since the cause of action accrued - Medical negligence - Turns on own facts Legislation: Limitation Act 2005 Result: Originating summons dismissed
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Representation: Counsel:
Plaintiff : Mr D F Beere
Defendant : Ms W S Meggison
Solicitors:
Plaintiff : Lane Buck & Higgins
Defendant : Panetta McGrath
Case(s) referred to in judgment(s):
Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31
Cousins v Hall [2012] WADC 110
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 235
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19
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Introduction 1 The plaintiff, Mr Espinos, seeks an extension of time to commence an action against the defendant orthopaedic surgeon, Mr Chong, arising out of total knee replacement surgery performed by Mr Chong upon Mr Espinos on 15 February 2010. 2 Mr Espinos filed his originating summons dated 6 March 2013 seeking leave to commence proceedings on 15 March 2013, on which latter date, he apparently also issued a writ of summons claiming damages for negligence against Mr Chong arising out of the same knee replacement surgery.
The evidence of Mr Espinos 3 Mr Espinos affirmed his affidavit on 8 March 2013 in support of his application reciting that: 1. Previously, he had a left knee rupture of the anterior cruciate ligament resulting in that knee regularly dislocating when put under pressure. 2. In consequence of the rupture, Mr Espinos underwent a patellofemoral reconstruction of the left knee in December 2006 at Bunbury Regional Hospital. Mr Chong was his surgeon. 3. The patellofemoral reconstruction was not a success and Mr Espinos continued to suffer left knee problems. Mr Espinos continued to be reviewed by Mr Chong. 4. On 15 February 2010, Mr Chong performed a total knee replacement on Mr Espinos' left knee at Bunbury Regional Hospital. 5. Following the knee replacement, Mr Espinos suffered pain in the left knee and leg, but he was told this was normal and that the pain would reduce over time. He was required to undertake physiotherapy. 6. On 25 February 2010, Mr Espinos felt a popping sensation in his left calf. 7. On 26 February 2010, Mr Espinos was transferred by the Royal Flying Doctor Service from Bunbury Regional Hospital to (Page 4)
Royal Perth Hospital. On the next day, he underwent surgery to repair popliteal artery in Mr Espinos' left knee which had been severed during the knee replacement operation. Mr Espinos photographed his left leg after this surgery and he has annexed copies of these photographs to his affidavit. 8. On 5 March 2010, Mr Espinos was transferred from Royal Perth Hospital back to Bunbury Regional Hospital from where, on 26 March 2010, he was discharged to his home at Capel. 9. Mr Chong explained to Mr Espinos that his: range of movement in my left knee post-operation was limited because of the problem which had occurred in relation to the haematoma within the knee and that he [Mr Chong] would need to debride the knee before I could undertake further physiotherapy to get the knee working properly. 10. Further, Mr Chong told Mr Espinos that: there was a reasonable prospect that after physiotherapy I would get full movement of the knee and no further dislocation thereof and that the complication which occurred as a result of the surgery on 15 February 2010 would not have any lasting impact on my use of my left leg. 11. Mr Espinos undertook physiotherapy for a three to four month period without significant improvement. He also suffered a new problem, being swelling in the lower left leg and foot after standing, walking or even sitting. He needed to constantly change his movement and the position of his left leg in order to eliminate swelling. 12. Despite the problems Mr Espinos had, he received advice from Mr Chong from which he assumed that there would be improvement in his left leg and that the pain would eventually disappear. It was only in July 2010 after completing physiotherapy without any noticeable improvement that he began to think he may have a permanent problem. 13. In 2011, a solicitor advised Mr Espinos that he had either six or seven years to make a claim against Mr Chong. Mr Espinos did not proceed at that time because of lack of finance. (Page 5)
14. In 2012, Mr Espinos discussed matrimonial matters with a solicitor and then met his current solicitor in January 2013 who wrote to him on 8 February 2013 advising of the three year limitation period and requesting that he obtain medical records as a matter of urgency. 15. Mr Espinos was aware of significant pain problems following surgery on 15 February 2010, but he was not aware of the cause of those problems. 16. As a result of his transfer to Royal Perth Hospital on 26 February 2010, Mr Espinos became aware: that some other problem was occurring other than one which would normally arise from the knee replacement itself. 17. Mr Espinos was not aware he had sustained a significant personal injury because he understood that he would recover and regain the full use of his knee after physiotherapy. Mr Espinos affirmed that: It was only in about July 2010 that the realisation came to me that the problem I had was likely to be ongoing and permanent;
and
Even today I am not sure whether the cause of my current problems is due to the knee replacement operation in 2010, the cut to my artery or post-operative care and I have been unable to afford the cost of obtaining an independent medical opinion to indicate what is the cause of my current problems.
The limitation period 4 The first issue in this matter is to ascertain when a cause of action, if any, accrued in favour of Mr Espinos against Mr Chong. That is because the Limitation Act provides by s 14(1) that: An action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued. 5 In Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 [32], the Court of Appeal said that s 14: … gives effect to a parliamentary intention that if an action for damages for personal injury is to be brought, it must be brought within a period of three years from the time at which the plaintiff first becomes aware that they have suffered a 'not insignificant' injury. (Page 6)
6 The words 'not insignificant injury' come from s 55 of the Limitation Act which provides for the accrual of a cause of action.
The accrual of a personal injury action 7 Section 55 of the Limitation Act2005 provides that: 8 The Limitation Act does not define the word 'aware' included in s 55. From the Shorter Oxford English Dictionary, that word has various meanings including 'conscious, sensible, not ignorant, having knowledge (of that), well informed, responsive to conditions, informed about current developments'. 9 In Thomas Peacock & Sons Pty Ltd, the Court of Appeal considered s 55 of the Limitation Act and said [40]: … It is plainly the case that the purpose of s 55 is to avoid time running while a person is unaware that he or she has suffered a 'not insignificant' injury; that is, an injury which is not 'trifling' or 'of no consequence'. Macquarie Dictionary. Whether or not an injury is of such nature must depend upon the extent of the injury itself. The effect of s 55 is that the cause of action accrues when the person first becomes aware that they have suffered such a personal injury or there is some symptom, clinical sign or other manifestation consistent with such a personal injury. The relevant criterion is awareness, or means of awareness, of the existence of a personal injury which is not insignificant.
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10 In Cousins v Hall [2012] WADC 110, Braddock DCJ did not have the benefit of the decision in the Court of Appeal in Thomas Peacock & Sons Pty Ltd to which reference has just been made but, she said that: the issue is when did Mr Cousins become conscious, or have knowledge that his fall or falls at work had caused his symptoms? 11 In the context of Mr Espinos, this issue could be reframed to ask: 1. did he suffer a not insignificant injury; 2. if so, when did: The submissions for Mr Espinos 12 From his affidavit, Mr Espinos is not sure whether his current problems for which he seeks to recover damages by action against Mr Chong arise from the severance of his popliteal artery during the knee replacement surgery or from some other unspecified aspect of that surgery or his post-operative care, which could include health professionals aside from Mr Chong eg, nursing and medical staff from the hospital, physiotherapists and may be others as well. It could also be that his current problems stem from the deep vein thrombosis he suffered after the knee replacement surgery. 13 The potential claim is therefore speculative. There could be a number of possible causes of action against Mr Chong and persons other than Mr Chong. Counsel for Mr Espinos, Mr D F Beere, submitted that the application should proceed on the basis that it was the popliteal artery which was severed during the knee replacement surgery. 14 I will assume that Mr Chong severed Mr Espinos' popliteal artery during the knee replacement surgery and that that fact was neither apparent during surgery nor immediately thereafter. 15 Mr Beere conceded that Mr Espinos became aware his popliteal artery was severed, but submitted he was not concerned about it or about being transferred to Royal Perth Hospital, the surgery to repair the artery and the consequential cosmetic disability resulting from it because Mr Chong informed him after his period in Royal Perth Hospital that there (Page 8)
was a reasonable prospect that the 'complication' from surgery would not have 'any lasting impact' on the use of his left leg. 16 Further, it was submitted that it was only in July 2010 that Mr Espinos realised that the problem was likely to be ongoing and permanent. Hence, Mr Beere submitted that only at that time did Mr Espinos first become aware that he had sustained a 'not insignificant injury' within the meaning of s 55(1)(a). 17 Mr Beere also effectively submitted that as the severed artery, the flight to Perth, the surgery at Royal Perth Hospital and the cosmetic disability were not of concern to Mr Espinos prior to July 2010, that, it was only then that he was aware of the first symptom, clinical sign or other manifestation of personal injury consistent with having sustained a not insignificant injury within the meaning of s 55(1)(b).
When did the cause of action accrue? 18 Mr Espinos underwent a total knee construction on 15 February 2010. During the course of that surgery, Mr Chong severed Mr Espinos' popliteal artery. However, this may not have been known until later. 19 On 25 February 2010, Mr Espinos suffered a popping sensation in his left calf. 20 On 26 February 2010, the Royal Flying Doctor Service transferred Mr Espinos to Royal Perth Hospital. On 27 February 2010 at Royal Perth Hospital, Mr Espinos underwent further surgery when it was ascertained, if it had not been earlier ascertained, that Mr Chong had severed the popliteal artery. This was then repaired. 21 Therefore, the first symptom, clinical sign or other manifestation of the severed artery was around 25 to 27 February 2010 when the popping sensation occurred, Mr Espinos was transferred to Perth and operated on - s 55(1)(b). 22 Mr Espinos was informed of the severed artery during his time at Royal Perth Hospital. Precisely when he was told is not known, but it was no later than 5 March 2010 when he was discharged back to Bunbury Regional Hospital. He was therefore aware that he had suffered the severed artery by this date at the latest – s 55(1)(a). Apart from being told, his awareness of such an injury must also have occurred by reason of his flight to Perth, the surgery he underwent and his knowledge of his leg wound following that surgery. (Page 9)
23 Mr Espinos photographed the open wound to his left leg after the surgery at Royal Perth Hospital. These photographs show a full thickness surgical incision of the medial aspect of his lower left leg from the knee joint to the ankle. The parties appear to have proceeded on the assumption that Mr Espinos suffered a not insignificant injury. A severed artery is such an injury. That is why Mr Espinos now seeks leave to commence an action against Mr Chong. The issue is really as to when it manifested itself or he became aware of it. 24 From Butterworths Medical Dictionary, 2nd ed, the popliteal artery is: A continuation of the femoral artery in the popliteal fossa. Branches, the sural arteries, are supplied to the muscle bellies at the back of the knee joint; five other branches, the lateral superior genicular artery, the medial superior genicular artery, the middle genicular artery, the lateral inferior genicular artery and the medial inferior genicular artery, form the arterial anastomosis around the knee joint, supplying the joint structures and soft tissues around the joint and the patella. 25 Mr Espinos of course could not be expected to know the nature of the popliteal artery or the fact that it was severed in the knee replacement surgery. However, he can reasonably be expected to have been aware that it was no ordinary or insignificant occurrence to transfer him by flying doctor from Bunbury Regional Hospital to Royal Perth Hospital. Something significant had occurred. A problem from the knee replacement surgery had manifested itself requiring further surgery in Perth. After that surgery, Mr Espinos was informed of the severance of the artery. The wound would obviously leave him scarred. All this meant that a not insignificant person injury had manifested itself requiring the flight to Perth and surgery. Mr Espinos was also told of it. 26 Clearly Mr Espinos was aware of his injury. It was not insignificant. Mr Espinos had a claim for damages following his unexpected flight to Perth and the serious surgery with resultant scarring. His injury was neither trifling nor was it of no consequence. It was one which would justify a claim for damages.
27 The purpose of s 55(1) is to avoid time running while a person is unaware that he or she has suffered a 'not insignificant' personal injury or it has not manifested itself. The injury manifested itself requiring Mr Espinos' transfer to Royal Perth Hospital and even if its cause was not known until surgery, Mr Espinos was at least aware that he had suffered such an injury after surgery and whilst he was still at Royal Perth (Page 10)
Hospital. He cannot say he was not aware of his not insignificant severed artery injury until July 2010.
28 In the circumstances, the cause of the action accrued by 5 March 2010 at the very latest when Mr Espinos was discharged from Royal Perth Hospital and returned to Bunbury Regional Hospital. Mr Espinos was aware by then that he had sustained a not insignificant personal injury. It had manifested itself earlier than 5 March 2010, but I will use this date as it is the most favourable to Mr Espinos.
29 Mr Beere's submission that Mr Espinos believed until July 2010 that he would make a full recovery from the repair to the severed artery is not to the point insofar as s 55 of the Limitation Act is concerned. The cause of action accrues when the only or earlier of either the person becoming aware of sustaining a not insignificant personal injury or the first manifestation consistent with such an injury occurs.
30 The mere fact that Mr Espinos, who from his affidavit is a resident of Capel, was transferred from Bunbury to Perth to surgically repair the alleged negligent surgery meant that Mr Espinos had suffered injury and loss. He was required to be moved from Bunbury for major surgery in Perth. That surgery left him with a cosmetic defect. He was away from family who might support him in his recuperation, by being in Perth between 26 February and 5 March 2010. This was solely due to the severed popliteal artery. 31 It is true that in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 235, Wilson J said: The concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage. 32 However, as Keen DCJ said in Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31 [40]: … Section 55 Limitation Act now modifies that former position in personal injury matters so as to fix a time for the purposes of that Act from which the cause of action will have been deemed to have accrued.
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33 I have already quoted the Court of Appeal in Thomas Peacock & Sons Pty Ltd [40] as to the purpose and effect of s 55 of the Limitation Act. The court also said [42]: Under s 55, the cause of action accrues when a person first becomes aware they have suffered a personal injury which is 'not insignificant' or there is the first manifestation consistent with such an injury, not when they have satisfied any statutory restrictions on the power of the court to award damages for the injury. 34 It is not necessary for the injured person to have reached any statutory threshold to recover damages or to have suffered all potential loss and damage to be aware that he or she has suffered a not insignificant injury or there is some symptom, clinical sign or other manifestation consistent with such a personal injury. It is quite usual for loss and damage to not be fully sustained for some time after a person is injured. All that is required is that the potential claimant is aware he or she has suffered a not insignificant injury or there is the first manifestation consistent with such an injury. Mr Espinos had such awareness of each of these two aspects of his circumstances no later than 5 March 2010. 35 Mr Beere's submission that the cause of the action did not accrue until Mr Espinos no longer believed he would make a full recovery cannot be accepted.
The extension of time 36 Any writ issued by Mr Espinos on 15 March 2013 was not commenced before three years had elapsed since the cause of action accrued. 37 Relevantly, s 39 of the Limitation Act provides that: (3) On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues — (Page 12)
38 In his affidavit supporting this originating summons, Mr Espinos affirmed that he is not sure of the cause of his current problems, whether they be due to the knee replacement operation, the severance of his popliteal artery or his post-operative care. From this it can be said that the proposed cause of action against Mr Chong is speculative. The court should not grant leave to commence proceedings out of time in respect of a mere speculative action. That was accepted by counsel for Mr Espinos. 39 It is assumed that the ongoing problems facing Mr Espinos arise from the severance of his popliteal artery. It can be reasonably supposed, without deciding, that the severance of the popliteal artery was a negligent act. Mr Espinos on his evidence however, was not aware of the physical cause of his personal injury arising from the operation until about July 2010. That cannot be accepted. He was aware he had sustained a severed artery by no later than 5 March 2010 and he was aware of the physical cause of his injury, being the severed popliteal artery by no later than that date – s 39(3)(a). He was also aware at all times that Mr Chong caused that injury – s 39(3)(b). 40 In these circumstances, there should not be an extension of time to commence an action against Mr Chong. 41 In any event, s 39(4) of the Limitation Act relevantly provides that: On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware — (a) of the physical cause of the death or injury; (b) that the death or injury was attributable to the conduct of a person (whether a defendant or not); and (c) of the identity of the person mentioned in paragraph (b). 42 In the circumstances as I have found them, Mr Espinos became aware of the physical cause of his injury and that such injury was attributable to Mr Chong by no later than 5 March 2010. By reason of s 39(4), any extension of time can only be to 4 March 2013 at the latest in any event. The originating summons dated 6 March 2013 was not filed until 15 March 2013. On any view, there is now no power to grant an extension of time. (Page 13) Result 43 The cause of action accrued when Mr Espinos' not insignificant injury manifested itself or he became aware that he had sustained a not insignificant personal injury, ie at least by the time he was transferred back to Bunbury Regional Hospital from Royal Perth Hospital on 5 March 2010. He was made aware of the detail of his injury during his stay in Royal Perth Hospital. 44 Mr Espinos was therefore required to commence his proceedings within three years of becoming aware that he had sustained a not insignificant personal injury, being no later than 4 March 2013 at the very latest. 45 An extension of time to commence an action can only be granted in circumstances where the injury had not manifested itself or Mr Espinos was not aware of the physical cause of his injury or was not aware that such injury was attributable to the conduct of Mr Chong, being no later than 5 March 2010. He was aware of each of these things prior to 5 March 2010 at the latest. 46 Even if an extension of time could be granted, it could not be granted to any date later than 4 March 2013. 47 This originating summons is therefore dismissed.
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