Lembo v Lutton

[2000] QSC 6

SUPREME COURT OF QUEENSLAND

Registry: Toowoomba

Number: S 170 of 1996

Before Justice Wilson

[Lembo v Lutton]

Plaintiff:  KAY ANN LEMBO

AND

Defendant:                NEVILLE JAMES LUTTON

REASONS FOR JUDGMENT : WILSON J

Delivered:    21 January 2000

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 – MATERIAL FACTS OF A DECISIVE CHARACTER – whether material facts giving rise to a cause of action for personal injuries were within the plaintiff’s means of knowledge within the limitation period – what constitutes material facts of a decisive character – relevant considerations for determining the means of knowledge of the plaintiff            

Counsel:  Mr G M Egan for the plaintiff
  Mr D H Tait for the defendant

Solicitors:                   Grasso Searles Romano for the plaintiff
  Flower & Hart for the defendant      

Hearing date:             25 October 1999

1. This proceeding was commenced by writ issued  on 28 October 1996 by which the plaintiff claims “damages for personal injuries and subsequent loss sustained on and after October 29, 1993 by [the plaintiff] as a result of the negligent provision of medical advice and treatment of the defendant.” 

1. A statement of claim was delivered on 20 March 1998 and a defence on 5 May  1998.  The defendant pleaded that the plaintiff’s cause of action arose more than three years prior to the issue of the writ and that the proceeding was barred by s 11 of the Limitation of Acts Act 1974.

1. There are two applications for determination – one by the plaintiff seeking an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act and the other by the defendant seeking judgment pursuant to r 293 of the Uniform Civil Procedure Rules.

1. The plaintiff claims that it was not until her solicitors received a medical report dated 17 October 1997 that certain material facts of a decisive character were within her means of knowledge.  She seeks an extension of the limitation period to 17 October 1998 or alternatively to 28 October 1996 (the date the writ was issued).  I note that in Opacic v Patane [1997] 1 Qd R 84 the Court of Appeal confirmed that s 31(2) is applicable in 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.

1. The plaintiff was born on 8 December 1965.  She is a teacher by profession.  The defendant is a general practitioner practising in Toowoomba.

1. According to the plaintiff’s case she consulted the defendant on or about 19 June 1992 about a lump on her nose.  He diagnosed it as a blocked gland and did not advise that further consultation or treatment was necessary.  In or about January 1993 she consulted him further because of the persistence of the lump.  He deferred surgery because she was pregnant.  (Her second child was born in May 1993).  In July 1993 she consulted him again about the lump and he surgically excised it.  The lump recurred and in October 1993 she consulted another doctor at the defendant’s practice who referred her to a plastic surgeon Dr Finucan.  She saw Dr Finucan on 29 October 1993.  He excised the lump and arranged for pathological examination of the relevant tissue.  It was diagnosed as a malignant dermatofibrosarcoma.  He performed further surgery on 26 November 1993 and 3 December 1993.  There was reconstructive surgery performed on 21 January 1994 and then between February and April 1994 she underwent 33 sessions of radiotherapy.  In June 1994 there was a period of hospitalization during which she suffered further illness and medical complications as a result of the malignancy.

1. The plaintiff alleges that as a result of the surgery and the radiotherapy treatment she has suffered loss and damage.  She alleges in paragraph 13 of her statement of claim:-

“13.The said loss and damage was caused as a result of the negligence and/or breach of contract of the Defendant, particulars whereof are as follows:

(a)Failing to observe that the Plaintiff was in a position of peril in all the circumstances;

(b)Failing to properly investigate, diagnose and treat the Plaintiff in circumstances where the Defendant knew or ought reasonably to have known that the said lump could have been a malignant growth and that the Plaintiff could suffer serious health problems and/or death in the event of the Defendant failing to properly diagnose the Plaintiff’s condition;

(c)Failing to cause the tissue excised in July 1993 to be pathologically examined with a view to ascertaining whether the growth was malignant or not;

(d)Failing to properly investigate the Plaintiff’s medical condition so as to ensure that the Plaintiff was not exposed to the risk of the further development of a malignant growth;

(e)Failing to act in a reasonable and competent manner.”

In response to a request for further and better particulars the plaintiff said as follows:-

“4.The plaintiff was in a position of peril in that if the Defendant did not provide appropriate treatment to the Plaintiff or give to the Plaintiff appropriate advice, the Plaintiff could die as a result of a malignant tumour.

5.The Defendant examined the Plaintiff in or about June 1992 at which time he observed the Plaintiff to have a lump on the bridge of her nose.  At that time the Defendant failed to investigate the lump either by excising part of the lump for subsequent pathology analysis nor did he refer the Plaintiff to a dermatologist or a plastic surgeon in circumstances where a general medical practitioner acting reasonably would have done so.   As to the surgical procedure carried out by the Defendant in or about June or July 1993, the Defendant carried out such procedure in circumstances where the procedure ought to have been carried out by a plastic surgeon who would have had the requisite skill and competence to properly carry out any surgical procedure and afterwards ensure that any necessary pathology analysis was undertaken.  The Defendant either failed to carry out any pathology analysis or alternatively arranged for such pathology analysis to be made but thereafter failed to take appropriate action to advise the Plaintiff of the results of any such analysis or refer the Plaintiff to a plastic surgeon for further treatment in circumstances where a pathology analysis would have revealed the existence of a malignant tumour.  The possibility of the lump on the Plaintiff’s nose being a malignant tumour ought to have been known by the Defendant.

6.As to the allegations contained in particular (e) of paragraph 13 of the Statement of Claim:-

(a)the Defendant failed to act in a reasonable manner in that he:-

(i)failed to refer the Plaintiff to a plastic surgeon after first examining the Plaintiff in or about June 1992;

(ii)failed to refer the Plaintiff to a dermatologist and/or plastic surgeon in or about June/July 1993;

(iii)carried out a surgical procedure on the Plaintiff in our about June/July 1993 when such procedure ought to have been carried out by a plastic surgeon;

(iv)failed to ensure that any material exercised [sic] in June/July 1993 was the subject of pathology analysis or alternatively, if such analysis was arranged by him, failed to report the results of any such analysis to the Plaintiff and appropriately refer her to a plastic surgeon for early treatment;

(v)failed to arrange for appropriate follow up treatment and/or examination of the Plaintiff after the June/July surgery.”

1. The plaintiff first consulted solicitors for advice about a possible claim against the defendant on 25 July 1994.  Four days later her solicitors wrote to Dr Finucan seeking his opinion as to whether “surgery or some part of the surgery may have been avoided had [the plaintiff’s] condition be [sic] detected in June 1992 or when surgery was first performed in July 1993,” and asking for a medico legal report.  He replied on 10 August 1994 that he did not do medico legal reports.  He supplied information about the operations she had had.  He suggested that Dr Bill Cockburn whose Toowoomba address was the same as his might provide a report. 

1. The writ was not issued until 28 October 1996 and it was not served until 23 October 1997. 

1. The plaintiff’s solicitors obtained a report from Dr Hunter J.H. Fry, a plastic and reconstructive surgeon, dated 17 October 1997.  In Dr Fry’s opinion there were a number of deficiencies in the care afforded by the defendant.  These are summarized in the particulars of the statement of claim referred to above.  He said that the conduct of the defendant would not have the support of peer groups of general practitioners or plastic surgeons.  He said “I believe that loss of chance applies from the first consultation, the second consultation, the operation and the follow up from [the defendant’s] operation.”  The plaintiff has deposed as follows:-

“Prior to the receipt of the report of Dr Fry, I did not appreciate that Dr Lutton was negligent in his treatment of me and/or in respect of his diagnosis of the cause of the lump.”

1. The applicable limitation  period for the plaintiff’s action is three years.  Her counsel submitted that it would have expired at the latest in or about July 1996 (ie three years from the excision performed by the defendant).  The writ was not issued for another four months.

1. The Limitation of Actions Act provides:-

“31(2)    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 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; and

(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a 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 1 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.

30.For the purposes of this section and sections 31, 32, 33 and 34 –

(a)the material facts relating to a right of action include the following –

(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii)the identity of the person against whom the right of action lies;

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv)the nature and extent of the personal injury so caused;

(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(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 on those facts, would regard those facts as showing –

(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii)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;

(c)“appropriate advice”, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, as the case may  require;

(d)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 at that time know the fact; and   

(ii)so far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the fact.”

1. In his written submissions the plaintiff’s counsel said that there were two material facts both of a decisive character not within the plaintiff’s means of knowledge until the last year of the limitation period had begun to run, viz – the failure of the defendant to discharge his duty of care to the plaintiff; and (2) the causative link between the said failure and the loss suffered by the plaintiff, in particular the “loss of chance” (written submissions para 10).  The defendant’s counsel identified the material fact of a decisive character as “whether the plaintiff had a cause of action against the defendant in respect of the malignant tumour, the malignancy of which he had not told her” (written submissions para 6.1).

1. The  question of whether the defendant’s conduct was negligent is ultimately one for the court and not for expert opinion: Rogers v Whitaker (1992) 175 CLR 479. Nevertheless the practices of professional peers are a relevant consideration in the court’s assessment of that question, and I consider that such practices do constitute a material fact of a decisive character within the meaning of ss 30 and 31. The defendant’s concession that whether the plaintiff had a cause of action in respect of the malignant tumour was itself a material fact of a decisive character is with respect misconceived, because it ignores the distinction between knowledge of a matter of fact and knowledge of the legal effect of facts: see Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; Dick v University of Queensland [1999] QCA 474; CA No 3204 of 1999, 12 November 1999.

1. In opposing the plaintiff’s application the defendant relied not on the absence of a material fact of a decisive character but rather upon an argument that such a material fact could have been ascertained before the last year of the limitation period began to run: s 30(d).

1. The plaintiff swore:-

“5.After radiotherapy was completed in April 1994 I continued with regular medical checkups, however it became a waiting game as to whether or not the growth returned.  I became very ill and suffered a number of blackouts over several months and I spent several weeks in hospital at different times.  During this period I was advised not to return to work, I was very depressed, I was scared that I was going to die, I was concerned about my children as my second baby was born in May 1993.

6.My concerns about the return of the malignancy continued through into 1995 when I was able to return to work and perform light duties where I was assigned only a couple of classes.  I was given good support by my head master as [sic] school which helped me cope.  Through this period I went through a long period of feeling sorry for myself as I was worried about whether I would live or die.  My husband and I suffered some financial difficulties as I was away from work for so long.  As a result I needed to draw down against my Q-Super superannuation fund to help pay for our day to day living expenses and in those circumstances I could not afford the cost of a medico-legal report which Messrs Cleary  & Lee informed me was $600.00 but ultimately cost $1,000.00.

7.By 1996 I had been back at work for some 12 months.  I was beginning to come to terms with what I felt was a life threatening illness.  My fears about the return of the malignant growth were declining and I began to again consider prosecuting my claim against Dr Lutton.  Once I became aware of the limitation period, which was explained to me by Messrs Cleary & Lee, I then instructed them to proceed with obtaining a report from Dr Fry as I was financially able to afford such a report and I felt physically and mentally strong enough to proceed with a court action.

8.I state that it took me all of 1994 and 1995 to over come the physical and mental aspects of my illness.  It was not until 1996 that I was able to consider proceeding with this claim.”

There was no supporting medical evidence as to her condition in the period up to July 1995.             

1. The test as to whether a fact was within a plaintiff’s means of knowledge is an objective one having regard to the circumstances of the particular plaintiff: Castlemaine Perkins Ltd v McPhee [1979] Qd R 469. The nature of the fact to be ascertained will have a direct bearing on the court’s expectation of what will amount to reasonable steps by the plaintiff: Randel v Brisbane City Council [1984] 2 Qd R 276 at 286 per Thomas J.

1. The plaintiff’s evidence is imprecise.  She does not say when she was told of the need for a report, although it will be recalled that a report had been sought from Dr Finucan in July 1994.  She does not say when she was told that such a report would cost $600.  She does not say when she gave her solicitors instructions to obtain such a report (although it seems probable that it was sometime in 1996) or when Dr Fry was engaged.  In all the circumstances I infer that it was her decision, based largely on financial considerations, not to obtain a report until some time after July 1995. 

1. The plaintiff had an obligation to keep in touch with her solicitors and to act in accordance with the advice they gave her from time to time.  There is no evidence that she kept in touch with them between August 1994 and July 1995.

1. The plaintiff has not satisfied me that the material fact/s disclosed by Dr Fry’s report were not within her means of knowledge until after July 1995 (that is until after the commencement of the year last preceding the expiration of the limitation period.)  Accordingly her application fails.

1. I will hear counsel on the form of orders and costs.