Fyles v Clark - [2000] QCA 28

[2000] QCA 28

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
BYRNE J

Appeal No 6618 of 1999
SC No 767 of 1998

GRAEME PETER FYLES Appellant/Plaintiff

and

DR WILLIAM BRAIDWOOD CLARK Respondent/First Defendant

and

W.B. CLARK (MEDICAL) PTY LTD Respondent/Second Defendant
(ACN 010 488 141)

BRISBANE

DATE 14/02/2000

JUDGMENT

THE CHIEF JUSTICE: The first respondent, an orthopaedic surgeon, carried out a double block fusion of vertebrae in the appellant's cervical spine on 12 September 1990. The appellant subsequently experienced pain and discomfort leading to his consulting various medical specialists and undergoing physiotherapy, massage and acupuncture with a view to obtaining pain relief. On 23 January 1998 following legal advice he commenced an action for damages against the respondents.

The appellant's contention is that the operation was unnecessary and that he has suffered a recognised complication of which he was not warned, accelerated degeneration in the motion segment above the fusion. When the appellant commenced the proceedings he had no evidence of negligence on the part of the first respondent. He first obtained that prospective evidence on 14 January 1999. The proposed evidence was contained in a report by Dr R Watson, obtained at the instance of the appellant's barrister.

Dr Watson expressed the view that the operation was not warranted because the appellant's symptoms were primarily cardiac. Further CT myelography should have been undertaken first. Armed with that evidence the appellant served the writ on 19 January 1999.

The prescribed three year limitation period expired on 12 September 1993. In their defences filed on 19 March 1999 the respondents pleaded that the action commenced on 23 January 1998 was therefore barred. On 16 April 1999 the appellant applied to a Judge in Chambers for an order under section 31 of Limitation of Actions Act extending the limitation period. Section 31 provides:

"Where on application to a Court by a person claiming to have a right of action to which this section applies, it appears to the Court:
(a)that a material factor 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; and
(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation,

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 and thereupon for the purposes of the action brought by the applicant in that Court, the period of limitation is extended accordingly."

The "material facts of a decisive character relating to the right of action" upon which the appellant relied before the Chamber Judge were essentially the opinion of Dr Watson summarised earlier, that the operation was not warranted because the appellant's symptoms were primarily cardiac and that CT myelography should first have been undertaken anyway.…

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.

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Details

Case: [2000] QCA 28
Decision Date: 14/02/2000

CaseChat Overview and Summary

Fyles v Clark is an appeal against the refusal of a Judge in Chambers to extend the limitation period for the appellant's claim against the respondent, an orthopaedic surgeon, for damages arising from a double block fusion of vertebrae in the appellant's cervical spine. The appellant's case was that the operation was unnecessary and that he suffered from a recognised complication of which he was not warned. The limitation period expired on 12 September 1993, three years after the operation. The appellant commenced his action on 23 January 1998, relying on a report by Dr Watson obtained on 14 January 1999, which expressed the view that the operation was not warranted and that CT myelography should have been undertaken first. The respondents pleaded that the action was barred by limitation. The appellant sought an order extending the limitation period under section 31 of the Limitation of Actions Act 1974 (Qld), which provides that a court may extend the limitation period if 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 limitation period and there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation. The appellant argued that the material facts were not within his means of knowledge until he obtained Dr Watson's report on 14 January 1999. The Judge in Chambers held, however, that the appellant had not taken all reasonable steps to find out the fact before that time and dismissed the application. The appellant appealed against that decision.
The primary issue before the Court of Appeal was whether the Judge in Chambers was correct to hold that the appellant had not taken all reasonable steps to find out the fact before 14 January 1999. The Court of Appeal held that the Judge's approach was open and reasonable. The appellant had been in contact with Dr Watson from July 1994 and had numerous telephone conversations with him. The appellant had opportunity on many occasions prior to January 1999 to question Dr Watson about the issue of negligence. The appellant had believed since in or about early 1996 that his condition was attributable to the "fault" of the respondent, but he had not sought legal advice until January 1998. The appellant's focus on relief of pain did not excuse his failure to ask Dr Watson the relevant questions of negligence. The appellant had not shown that it was reasonable not to seek legal advice by early 1997 at the latest. The Court of Appeal held that no ground had been demonstrated warranting any interference by the Court on appeal and dismissed the appeal with costs to be assessed.

Orders