Miller v Broadbent - [1999] QSC 205

IN THE SUPREME COURT
OF QUEENSLAND

No. 9682 of 1998
Brisbane

Before Mr Justice Muir
[Miller v Broadbent & Anor]

BETWEEN     HAROLD ROBERT MILLER
  Plaintiff
AND              RUSSELL BROADBENT
  First Defendant
AND              THE PELERMAN GROUP PTY LTD
(ACN 009 977 566)
TRADING AS ALLAMANDA PRIVATE HOSPITAL
Second Defendant

REASONS FOR JUDGMENT - MUIR J
Judgment delivered 12 August 1999

CATCHWORDS: LIMITATION OF ACTIONS - application to extend limitation period under s.31(2) Limitation of Actions Act 1974 (Qld) - personal injuries - whether material facts were within plaintiff's knowledge prior to expiration of limitation period - discussion of “material fact” within meaning of s.30 Limitation of Actions act - possibility of prejudice to respondent.

Counsel:Ms Magee for the plaintiff
Mr Tait for the first respondent
Mr Freeburn for the second respondent

Solicitors:Linda Phelps & Co Solicitors for the plaintiff
Corrs Chambers Westgarth for the first respondent
Carter Newell for the second respondent

Hearing Date: 6 August 1999
IN THE SUPREME COURT
OF QUEENSLAND

No. 9682 of 1998
Brisbane

Before Mr Justice Muir
[Miller v Broadbent & Anor]

BETWEEN     HAROLD ROBERT MILLER
  Plaintiff
AND              RUSSELL BROADBENT
  First Defendant
AND              THE PELERMAN GROUP PTY LTD
(ACN 009 977 566)
TRADING AS ALLAMANDA PRIVATE HOSPITAL
Second Defendant

REASONS FOR JUDGMENT - MUIR J
Judgment delivered 12 August 1999

The applicant plaintiff applies to extend the limitation period in respect of injuries sustained by him as a result of silicon tubing being left in his abdominal cavity in the course of an operation, allegedly in 1994. The application is opposed by the first defendant respondent (the surgeon who is alleged to have carried out the operation during which the tubing was left in the applicant) and the second defendant (the proprietor of the hospital at which the operation was carried out). The central argument of the respondents is that there was no material fact of a decisive character relating to the right of action which 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. The respondents rely on s.30(1)(c) of the Limitation of Actions Act 1974 (“the Act”) which provides, in effect, that a fact is not within the means of knowledge of a person at a particular time if, by only if -
(a)the person does not know the fact at that time; and
(b)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 material fact pointed to by the applicant is “the identity of the person against whom a right of action lay” i.e. the probability that the tubing was left in the applicant’s body in the course of surgery in 1992 rather than in the course of surgery which the applicant underwent in 1994.
It is useful to consider, briefly, the facts surrounding the applicant’s claim.
In October 1992 the first…

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: [1999] QSC 205
Decision Date: 12 August 1999

CaseChat Overview and Summary

The case of Miller v Broadbent and Anor involves the plaintiff, Harold Robert Miller, seeking an extension of the limitation period for a personal injury claim against the defendants, Russell Broadbent and The Pelerman Group Pty Ltd trading as Allamanda Private Hospital. Miller alleges that a silicon tubing was left in his abdominal cavity during a surgery in 1994, conducted by Broadbent at the Allamanda Private Hospital. The defendants oppose the application for an extension of the limitation period, arguing that the material facts were within Miller's knowledge prior to the expiration of the limitation period. The legal issues in the case revolve around whether a material fact of decisive character was within Miller's knowledge prior to the expiration of the limitation period under section 30(1)(c) of the Limitation of Actions Act 1974 (Qld), and whether there is sufficient evidence to establish a right of action against the second defendant.

The Court, Mr Justice Muir, held that the material fact of decisive character came to Miller's knowledge when he became aware of the contents of Dr White's report. Before receiving the report, Miller had strong suspicions as to the origin of the tubing but could not properly assess the prospects of success of any action he may commence or determine the parties to any such action. The report largely ruled out the 1994 surgery as a possible source of his problems and linked the tubing to his reported discomfort since the 1992 surgery. Without such advice, Miller could only speculate as to the connection (if any) between his pain and the presence of the tubing. Furthermore, the Court found that there is adequate evidence to satisfy Miller's evidentiary burden, as discussed in cases such as Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431.

The final orders of the Court are not provided in the text, and submissions will be heard as to the appropriate orders to give effect to these reasons.

Orders