McKeown v Hertess - [2011] QDC 255

DISTRICT COURT OF QUEENSLAND

CITATION:

McKeown v Hertess [2011] QDC 255

PARTIES:

CEARA LOUISE MCKEOWN
(Applicant)

V

ISOLDE HERTESS
(Respondent)

FILE NO:

767/10

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

25 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

16 August, 21 September 2010 and Supplementary Written Submissions.

JUDGE:

Tutt DCJ

ORDER:

The application is dismissed;1.

The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.2.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION (OR POSTPONEMENT) OF LIMITATION PERIOD(S) – (EXTENSION OF PERIOD) – EXTENSION OF TIME IN PERSONAL INJURY MATTER(S) – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by respondent – where applicant commenced proceedings beyond limitation period – where applicant applies to extend limitation period for the commencement of proceedings – where application is opposed by respondent on the basis that the applicant has no cause of action against the respondent; a material fact of a decisive character relating to the right of action was within her knowledge or means of knowledge more than one year prior to her commencing proceedings and the respondent would be prejudiced by the delay in allowing the matter to proceed – whether the limitation period should be extended.

Limitation of Actions Act 1974 (Qld) ss 11, 30, 31

Civil Liability Act 2003 (Qld) ss 11, 21

Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Castlemaine Perkins v. McPhee [1979] Qd R 469
Campbell & Anor. v. Bleakley [2007] QSC 351;
Dick v University of Queensland [1979] Qd R 469
Do Carmo v. Ford Excavations Pty Limited (No. 5) [1983] 154 CLR 234
Elbourne v Gibbs [2006] NSWCA 127
Ervin v. Brisbane North Regional Health Authority (Appeal No. 267 of 1993) Court of Appeal, Queensland
Hertess v Adams [2011] QCA 73
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168
NF v. State of Queensland [2005] QCA 110
Opacic v Patane (1997) 1 Qd R 84
Queensland v Stephenson (2006) HCA 20; 226 CLR 197
Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549
Royal North Shore Hospital v. Henderson (1996) 7 NSWLR 283
Wood v Glaxo Australia Pty Ltd (1994) 2 QDR 431

COUNSEL:

Mullins G R for the applicant

Dalton SC, J H for the respondent

SOLICITORS:

Trilby Misso Lawyers for the applicant

Minter Ellison for the respondent

Introduction:

The plaintiff Ceara Louise McKeown (“the applicant”) applies to the court for the primary order “That the time for commencement of proceedings claiming damages for personal injuries by the plaintiff be extended to 11 March 2010 pursuant to section 31(2) of the Limitation of Actions Act 1974”[1] (“LAA”).
[1]Application filed 10 June 2010.

The applicant filed her claim on 11 March 2010 naming as first defendant Isolde Hertess (“the respondent”) and second defendant Ramsay Health Care Australia Pty…

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.

Continue reading McKeown v Hertess

Details

AGLC: McKeown v Hertess [2011] QDC 255
Case: [2011] QDC 255
Decision Date: 25 August 2011

CaseChat Overview and Summary

In the case of McKeown v Hertess, the applicant, McKeown, sought to extend the limitation period for commencing proceedings against the respondent, Hertess, in relation to injuries she alleged to have suffered following surgery performed by Hertess. The application was opposed by Hertess, who argued that McKeown had no cause of action against Hertess and that a material fact of a decisive character was within McKeown’s knowledge more than one year prior to commencing proceedings, which would prejudice Hertess if the limitation period were extended.

The legal issues before the court included whether McKeown had a cause of action against Hertess, whether there was a material fact of a decisive character that came within McKeown’s knowledge within the meaning of section 31(2)(a) of the Limitation of Actions Act, and whether the extension of the limitation period would prejudice Hertess. McKeown argued that she had a cause of action based on a failure to warn of risks associated with the surgery and that the material fact of a decisive character was the contents of a report by Professor Marshall, which she had not seen until after the limitation period had expired. The court considered whether these criteria were met and whether the extension of the limitation period would prejudice Hertess.

The court found that McKeown had failed to establish a cause of action against Hertess and that the material fact of a decisive character was within McKeown’s knowledge prior to the limitation period expiring. The court also found that Hertess would be prejudiced by the delay in allowing the matter to proceed. Consequently, the application to extend the limitation period was dismissed. The court further ordered that the parties have leave to make written submissions to the court within 28 days on the question of costs, failing agreement between them.

Orders

Orders of the court

The application is dismissed;1.

The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

To be successful in the application the applicant accepts that the court must be satisfied of three criteria namely:“(a) The applicant has a cause of action against the respondent in the first place (“the evidence point”);(b) There must be a material fact of a decisive character that came within the knowledge of the applicant within the terms of section 31(2)(a) of LAA (“the material fact point”); and These same criteria therefore reflect the “three bases” upon which “the respondent resists the application to extend the limitation period”[46].[46]Paragraph 2 of respondent’s written submissions adopted by the applicant “which identify the issues” to be decided in this application – see also H.T. 21 September 2010 page 12 lines 25-30. To establish “the evidence point” the applicant relies upon the dictum of Macrossan CJ in Wood v Glaxo Australia Pty Ltd[47] who explained the test as follows: [47](1994) 2 QDR 431 at 434. The applicant further submits that “This approach has been followed in Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549 explaining the decision in Reeves v Thomas Borthwick and Sons (Australia) Pty Ltd.”[48]In particular the applicant refers to paragraph [28] of Raschke in the judgment of Keane JA who relevantly stated:[48]Paragraph 27 of applicant’s written submissions. The applicant further submits that the respondent failed to warn the applicant of the risks to her in undergoing the breast reduction surgery and this aspect should be addressed under three criteria viz:[49][49]H.T. (21/09/2010) p 17 lines 15-20. It is submitted that Professor Marshall’s report of 5 May 2010 supplies the answers to these criteria wherein he states among other things:[50] The applicant further submits that on her evidence she was not prescribed antibiotics post-operatively when she should have been although she resiled from that former positive assertion under cross-examination. The applicant submits that while there is evidence to the contrary on the respondent’s case that is an issue which should be debated at trial not at this hearing. The applicant further submits that she has discharged her onus of proof under section 11 of the Civil Liability Act 2003 despite the fact that she is now precluded from giving evidence “about what she would have done” (if she had have been adequately warned) by relying upon the authority of Elbourne v Gibbs[51] and in particular paragraphs [72] to [78] of the judgment of Basten JA summarised at paragraph 78 as follows: The applicant further submits that the applicant has satisfied the court of section 31(2)(a) of the LAA within the meaning of section 30(1)(b) and (c) in that the “material fact of a decisive character” was the contents of Professor Marshall’s report of 5 May 2010 which did not come to her attention until it was received by her solicitors on 27 May 2010 in respect of which she had “taken all reasonable steps” to ascertain those facts as early as 5 May 2009 when she first consulted her solicitors following her reading of the Cairns Post on 1 April 2009. The fact that the applicant commenced proceedings before 27 May 2010 is irrelevant on the authority of Opacic v Patane.[52][52](1997) 1 Qd R 84.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McKeown v Hertess [2011] QDC 255
PARTIES:	CEARA LOUISE MCKEOWN (Applicant) V ISOLDE HERTESS (Respondent)
FILE NO:	767/10
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	25 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	16 August, 21 September 2010 and Supplementary Written Submissions.
JUDGE:	Tutt DCJ
ORDER:	The application is dismissed;1. The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.2.
CATCHWORDS:		LIMITATION OF ACTIONS – EXTENSION (OR POSTPONEMENT) OF LIMITATION PERIOD(S) – (EXTENSION OF PERIOD) – EXTENSION OF TIME IN PERSONAL INJURY MATTER(S) – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by respondent – where applicant commenced proceedings beyond limitation period – where applicant applies to extend limitation period for the commencement of proceedings – where application is opposed by respondent on the basis that the applicant has no cause of action against the respondent; a material fact of a decisive character relating to the right of action was within her knowledge or means of knowledge more than one year prior to her commencing proceedings and the respondent would be prejudiced by the delay in allowing the matter to proceed – whether the limitation period should be extended. Limitation of Actions Act 1974 (Qld) ss 11, 30, 31 Civil Liability Act 2003 (Qld) ss 11, 21 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 Castlemaine Perkins v. McPhee [1979] Qd R 469 Campbell & Anor. v. Bleakley [2007] QSC 351; Dick v University of Queensland [1979] Qd R 469 Do Carmo v. Ford Excavations Pty Limited (No. 5) [1983] 154 CLR 234 Elbourne v Gibbs [2006] NSWCA 127 Ervin v. Brisbane North Regional Health Authority (Appeal No. 267 of 1993) Court of Appeal, Queensland Hertess v Adams [2011] QCA 73 HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 NF v. State of Queensland [2005] QCA 110 Opacic v Patane (1997) 1 Qd R 84 Queensland v Stephenson (2006) HCA 20; 226 CLR 197 Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549 Royal North Shore Hospital v. Henderson (1996) 7 NSWLR 283 Wood v Glaxo Australia Pty Ltd (1994) 2 QDR 431
COUNSEL:		Mullins G R for the applicant Dalton SC, J H for the respondent
SOLICITORS:		Trilby Misso Lawyers for the applicant Minter Ellison for the respondent