Fyles v Clark

[1999] QSC 129

IN THE SUPREME COURT  

OF QUEENSLAND
  Writ No.767 of 1998
Brisbane

Before Justice Wilson

[Fyles v Clark & Anor]

BETWEEN:

GRAEME PETER FYLES

Plaintiff

AND:

DR WILLIAM BRAIDWOOD CLARK

First Defendant

AND:

W.B. CLARK (MEDICAL) PTY LTD

ACN 010 488 141

Second Defendant

REASONS FOR JUDGMENT - WILSON J

Judgment delivered 17 June 1999

CATCHWORDS:     LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES - KNOWLEDGE OF MATERIAL FACTS - WHETHER REASONABLE STEPS TAKEN TO ASCERTAIN FACTS - injuries occurring in 1990 - writ filed in 1998 - medical report received on 14 January 1999.

Castlemaine Perkins Limited v McPhee [1979] Qd R 469, applied.
Healy v. Femdale (C.A. No. 37 of 1992, 9 September 1993), considered.
Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419, considered.
Opacic v Patane [1997] 1 Qd R 84, applied.

Limitation of Actions Act 1974 ss. 30, 31

Counsel:Mr A. Garnham for the plaintiff

Mr D. Tait for the defendants

Solicitors:  Flower & Hart for the defendants

Hearing Date:              16 April 1999
IN THE SUPREME COURT  

OF QUEENSLAND
  Writ No.767 of 1998
Brisbane

Before Justice Wilson

[Fyles v Clark & Anor]

BETWEEN:

GRAEME PETER FYLES

Plaintiff

AND:

DR WILLIAM BRAIDWOOD CLARK

First Defendant

AND:

W.B. CLARK (MEDICAL) PTY LTD

ACN 010 488 141

Second Defendant

REASONS FOR JUDGMENT - WILSON J

Judgment delivered 17 June 1999

1. This is an application pursuant to s.31(2) of the Limitation of Actions Act 1974. The plaintiff has issued a writ against the first defendant (an orthopaedic surgeon) and the second defendant (the company by which he was employed). The action arises out of a surgical procedure performed by the first defendant on the plaintiff on 12 September 1990.

2. The writ was issued on 23 January 1998. The plaintiff claims that it was not until he received a medical report on 14 January 1999 that certain material facts of a decisive character were within his means of knowledge. He seeks an extension of the limitation period until 14 January 2000. In Opacic v Patane [1997] 1 Qd R 84, the Court of Appeal confirmed that s.31 is applicable to circumstances where a material fact of a decisive character was not within the applicant’s means of knowledge until a date after the issue of proceedings.

3. On 12 September 1990 the first defendant carried out a double block fusion of vertebrae in the applicant’s cervical spine at levels C5/C6/C7. The applicant’s complaint is not that the surgery was performed without the necessary technical skill and care, but that it was unnecessary and that he has suffered a recognised complication of the procedure (accelerated degeneration in the motion segment above the fusion) of which he was not warned.

4. In his statement of claim the plaintiff alleges that he was referred to the first defendant at some time prior to 30 May 1989 by a cardiologist, Dr Kim Carruthers. He alleges that the first consultation was on 30 May 1989. In his affidavit he says that for some time prior to 18 December 1989 he had been suffering from the following symptoms: spontaneous bouts of tachycardia/rapid atrial fibrillation/irregular heartbeat associated with a spasm-like sensation slightly to the left side of his mid thoracic region as well as a sensation vertically on the right hand side of his neck.

5. On 24 February 1990 MRI scans of his cervical spine were performed at the Princess Alexandra Hospital. He took the scans and accompanying report to the first defendant on 13 March 1990. In his presence the first defendant studied them and returned them to him. The report is not in evidence. It is alleged in the statement of claim that it disclosed (a) no obvious signal intensity changes within the cervical cord and (b) mild but definite cord compression at C6-7.

6. The plaintiff says in his affidavit that prior to the surgery on 12 September 1990 he attended the first defendant on at least five occasions and that he had no symptoms of pain to complain of. No CT myelogram was performed and he was not told of possible detrimental consequences of the operation.

7. In his statement of claim he alleges that since the operation on 12 September 1990 he has had (a) pain in the cervical spine in the area above and below the area of the operation; (b) muscle spasms in his shoulder girdle; (c) pain in his mid thoracic spine; and (d) a significant evolution of degenerative change at the motion segment immediately above the double level block fusion. He has attended an array of doctors on numerous occasions and he has attended physiotherapy, massage and acupuncture on more than 100 occasions. He says:

   “21.Although I knew that the pain had worsened and that my quality of life had deteriorated because of the operation and that, in or about early 1996 I believed that it was the First Defendant’s fault, no medical practitioner would tell me that it was the First Defendant’s fault.

22.In conversations with, and in writings to various medical specialists I made accusations that the operation carried out by the First defendant was unnecessary because my original symptoms persist and I now suffer from pain; such pain not being experienced prior to the operation.

23.There were insinuations like ‘blooding orthopaedics’ and reports that I had seen stating ‘... but, no CT mylegram (sic) was performed ...’ without telling me that a CT mylegram (sic) should have been performed. I had no evidence and no money to bring a legal action, and I did not know on what basis I could bring such an action.

24.I had no money and became fully occupied with attempts to manage the pain and associated problem I suffered on a minute-by-minute basis. I was crippled in the sense that I could not do anything about my situation.”

He says that at no time prior to 14 January 1999 had he been given appropriate advice:-

“(a)that a CT mylegram (sic) should have been performed prior to carrying out the said double block fusion of my cervical spine;

(b)that degenerative changes at the motion segment immediately above and/or below the double level block fusion were a recognised common but unpredictable complication of double block fusion;

(c)that the double block fusion of my cervical spine was carried out in circumstances where my symptoms were primarily cardiac without significant pain when a reasonably prudent Orthopaedic surgeon would not have done so;

(d)that, in the circumstances, the operation should not have been performed;

(e)that a likely reason that the First Defendant performed the operation was his failure to properly peruse the relevant details of my case; and,

(f)of my right to bring a legal action based on negligence against either or both of the defendants.”

1. It is clear that a medical opinion can be a material fact of a decisive nature. The real dispute in the present application is whether these facts were within his means of knowledge at an earlier time, since the Court can extend the limitation period only for one year from the date when the material fact of a decisive nature was within the applicant’s means of knowledge: s.31(2).

2. Whether a fact is within the means of knowledge of a person is defined negatively in s.30 as follows:

   “(c) a fact is not within the means of knowledge of a person at a particular time if but only if -

(i)the person does not know the fact at that time; and

(ii)as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.”

The test is an objective one applied to a person in the applicant’s position and with his background and understanding: Castlemaine Perkins Limited v McPhee [1979] Qd R 469 at 472.

1. There is little disclosed of the applicant’s background. He was born on 30 April 1948. He told Dr Watson that at one stage he worked on an oil rig, although it is not clear in what capacity. At any rate what he told Dr Watson is not evidence. In 1995 he worked for a short time as an advertising promotions sales person. Since about October 1995 he has been in receipt of social security benefits. I would be prepared to infer that at all material times he was lacking in knowledge and experience of litigation.

2. Down the years the applicant attended numerous doctors. He first consulted Dr Watson in July 1994 and Dr Watson saw him repeatedly thereafter and had numerous telephone conversations with him. Apparently Dr Watson did not express the opinions on which he now relies until January 1999. (The report of 14 January 1999 is not in evidence. That exhibited to Mr Fyles’ affidavit is dated 22 March 1999.) In Koehne v Stanbury [1996] 1 VR 203 at 209-210, Tadgell JA said of equivalent Victorian legislation:-

   “It is one thing to say that s.23A(2) does not contemplate that knowledge of an applicant’s agents of material facts is to be attributed to the applicant: Anisiena v. H. Crane Haulage Pty. Ltd. [1974] V.R. 670, at 674-5. It is another to say that an applicant can rely on persisting personal ignorance of a material fact which could be readily ascertained by her in circumstances in which it is reasonable to seek knowledge of it and unreasonable not to do so. If an applicant refrains from making enquiry as to a material fact of a person who knows it, and whom the applicant may reasonably be expected to understand knows it and would reveal it if asked, it is presumably a question of degree whether the applicant has taken all reasonable steps in the circumstances to ascertain the fact.”

(Similarly in Queensland the knowledge of an applicant’s agent such as a solicitor is not to be attributed to the applicant: see Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419.)

1. He did not seek legal advice until he approached Mr Garnham, a childhood friend, who had become a barrister. That seems to have been in January 1998. (The year is not expressed in Mr Fyles’ affidavit para.25, but I assume it was 1998 since the writ was issued on 23 January 1998.)

2. It seems that the plaintiff did not ask Dr Watson for his opinion before Mr Garnham suggested that this be done. Assuming that is what happened, the question is whether he acted reasonably in not asking the doctor questions of this kind. In Healy v. Femdale (C.A. No. 37 of 1992, 9 September 1993), the Court of Appeal said:-

   “The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact that her injury was serious enough to justify the bringing of an action. She did not ask her doctor questions of this kind. The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinion from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”

1. Unlike the applicant in that case, the present applicant has been dogged by pain since the operation and unable to get on with life and return to employment.  In January 1997 he consulted Dr Michael Coroneos, a consultant neurosurgeon. He told Dr Coroneos he was trying to find an expert to help him sue the first defendant. Given that at least from 1996 he thought that the first defendant was responsible for the condition in which he found himself, and given the apparent frequency of his contacts with Dr Watson, in not seeking Dr Watson’s opinion earlier he failed to take all reasonable steps to find out the fact before 14 January 1999.

2. In the circumstances, s.31(2)(a) has not been satisfied, and the applicant cannot succeed.

3. The application is dismissed with costs.