Hunt v Central Regional Health Authority - [1999] QSC 332

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
Before Mr Justice Muir
  No 8753 of 1996
[Hunt v Central Regional Health Authority]
BETWEEN:   CLIVE HUNT
Plaintiff

AND: CENTRAL REGIONAL HEALTH AUTHORITY Defendant
No 8389 of 1998

[Hunt v State of Qld]
BETWEEN: CLIVE HUNT Plaintiff
AND: STATE OF QUEENSLAND Defendant
REASONS FOR JUDGMENT - MUIR J
Judgment delivered 21 October 1999

CATCHWORDS: LIMITATION OF ACTIONS - EXTENSION OF PERIOD - CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES - whether reasonable steps taken by the plaintiff to ascertain the material facts - whether plaintiff had shown that the possibility of an action was not within his knowledge since 1995 - substitution of the State of Queensland as a party in lieu of the Central Regional Health Authority.

Counsel:Mr R W Trotter for the plaintiff
Mr M J Liddy for the defendant

Solicitors:Shine Roche McGowan for the plaintiff
Corrs Chambers Westgarth for the defendant

Hearing Date:              23 September 1997
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
Before Mr Justice Muir
  No 8753 of 1996
[Hunt v Central Regional Health Authority]
BETWEEN:   CLIVE HUNT
Plaintiff

AND: CENTRAL REGIONAL HEALTH AUTHORITY Defendant
No 8389 of 1998

[Hunt v State of Qld]
BETWEEN: CLIVE HUNT Plaintiff
AND: STATE OF QUEENSLAND Defendant
REASONS FOR JUDGMENT - MUIR J
Judgment delivered 21 October 1999

The applicant/plaintiff seeks an order that the time within which the applicant is able to commence an action for personal injuries against the respondent, the State of Queensland, as representative of the Royal Brisbane Hospital (“the Hospital”) be extended to 10 September 1998 pursuant to s 31 of the Limitation of Actions Act 1974 (“the Act”).
The first defendant is the Central Regional Health Authority. The applicant wishes to substitute the respondent State of Queensland as the first defendant. Under s 72 of the Health Services Act 1991 as amended, the respondent is liable for negligence on the part of the Central Regional Health Authority and also the Hospital. On 19 October 1993 the applicant, then a 51 year old tree pruner, fell from a tree sustaining a compound fracture of the left distal tibia and fibula with the fracture line extending into the ankle joint. He was placed in traction and on 19 October 1993 underwent operative reduction and fixation of the fracture. During that procedure bone fragments were removed and three major bone fragments were localised and secured in position. Also, an eight hole bone plate was fixed to the medial aspect of the tibia and bone fragments replaced as a graft.
On 16 November 1993 the applicant was transferred to the plastic surgery unit at the Hospital for the purposes of a skin graft. The antibiotic therapy, which the applicant was receiving whilst in Rockhampton, ceased on his admission to the Hospital. A number of procedures were carried out until the applicant was discharged on 22 December 1993.
The applicant returned to Rockhampton where he continued to suffer considerable pain. He returned to Brisbane and his wound was inspected at the Hospital on 12 January 1994.
At about that time he noticed an odour coming from his wound. After returning to Rockhampton, he was tended by Blue Nurses for three weeks and then treated at Orthopaedic Outpatients at the Rockhampton Hospital. His wound was dressed there throughout February 1994. He was admitted to the Rockhampton Hospital on 17 March 1994 "as the wound had broken down further exposing metal work and bone". He continued to experience difficulty with his wound throughout March until admission to the Rockhampton Hospital on 31 March 1994. A decision to amputate was taken on 6 April 1994 and amputation took place on 7 April 1994.
The applicant first contacted solicitors to investigating a possible medical negligence claim in about February 1995. The solicitor first contacted declined to act on the grounds of lack of expertise. The applicant then approached another firm of solicitors without obtaining any tangible assistance. In October 1995, his family doctor, Dr Clohesy, suggested that he see solicitors about making a claim against the Rockhampton Hospital. Consequent upon that advice he instructed solicitors who obtained a report dated 20 August 1996 from a Dr Robinson. Dr Robinson's report concluded -
"On reviewing the notes I find no evidence of any treatment which could have been changed particularly on a prospective basis. Even on a retrospective basis and working back from the amputation it would be difficult to state that the unfortunate result could have been prevented by any treatment other than that which was undertaken."
Dr Robinson had the medical records of both hospitals when conducting his review.
The applicant instructed the solicitors then acting for him not to proceed but later, after discussion with a family friend, approached his present solicitors with instructions to proceed against the Rockhampton Hospital. He swears to not being aware of the possibility of a claim against the Hospital until being told of the contents of a report of Dr Whitby dated 8 December 1997. Dr Whitby considered that the applicant's treatment in the Rockhampton Hospital was adequate but that the Hospital was at fault in failing to administer antibiotic treatment, particularly where there was evidence of high temperatures and infection. In his opinion the applicant's wound was infected by the time the applicant returned to Rockhampton on or shortly 12 January 1994. He also concluded that the Rockhampton Hospital's treatment after 12 January 1994 was also inadequate.
The "material fact of a decisive character relating to the right of action" relied on by the applicant is Dr Whitby's report. Before receiving that report he swears that he did not advert to the possibility of a claim against the Hospital. It is submitted on his behalf that by the time the report was received neither he nor his legal representatives were aware or could reasonably have been aware that a cause of action lay against any entity apart from the Rockhampton Hospital. It is contended on behalf of the respondent that the applicant has failed to show that he took reasonable steps to ascertain the material facts and, in consequence, "has not shown that the possibility of an action against the Royal Brisbane Hospital was not within his means of knowledge from 1995". It is pointed out that the records of the Hospital show MRSA (the applicant's infection which led to the necessity of amputation) to have been present whilst he was treated in the Hospital.
It is also submitted that the applicant has not acted reasonably in the circumstances.
In my view, the above account of the facts demonstrates that the applicant did all that could reasonably have been expected of him. In fact he was quite persistent in seeking appropriate legal and medical advice. Dr Robinson's report was not confined in its scope to a possible claim against the Rockhampton Hospital. It did not hold out any hope of a successful claim. That report was obtained well within three years from the coming into existence of a cause of action against the Hospital. Any delay which needs explaining can be explained, to some extent, by the pain and distress suffered by the applicant.
The applicant, by instructing solicitors, (and it is not suggested that he did so in an inappropriate manner) and by seeking appropriate medical advice took reasonable steps to find out the possibility of a claim or claims against hospitals. He became aware of the possible existence of a claim worth pursuing against the Hospital when he obtained Dr Whitby's report.
It is not contended that the applicant has not satisfied the requirement in s 31(2)(b) of the Act -
"That there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation."
The action against Central Regional Health Authority was commenced by writ dated 17 October 1996. The second action (8389 of 1998) in which the application before me was made was commenced by writ dated 10 September 1998. Orders are also sought that the two actions be heard together.
It is appropriate that the State of Queensland be substituted as a party in lieu of the Central Regional Health Authority and I propose to order accordingly.
For the above reasons, I propose to extend the limitation period. I will hear submissions on costs.