Miller v Broadbent
[1999] QSC 205
•12 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
PlaintiffAND RUSSELL BROADBENT
First DefendantAND 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 COURTOF QUEENSLAND
No. 9682 of 1998
Brisbane
Before Mr Justice Muir
[Miller v Broadbent & Anor]
BETWEEN HAROLD ROBERT MILLER
PlaintiffAND RUSSELL BROADBENT
First DefendantAND 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 respondent performed a laparoscopy stomach banding operation on the applicant in the Allamanda Private Hospital (owned and operated by the second respondent). Subsequent to the surgery the applicant experienced abdominal pain and underwent various investigative procedures which failed to reveal its source.
In 1994 the applicant underwent heart surgery at the Wesley Hospital. On 5 June 1996 a piece of silicon tubing was discovered in and removed from the applicant’s abdominal cavity in the course of exploratory surgery.
On 12 June 1996 the applicant consulted a solicitor with a view to ascertaining his rights.
On 17 June 1996 the applicant’s solicitor wrote to the applicant’s treating general practitioner seeking information about the medical investigations conducted since the 1992 surgery with a view to establishing the cause of the pain in the applicant’s abdominal area. By a letter of 24 June 1996 the general practitioner suggested that inquiries be made of the first respondent. On 16 August 1996 the applicant’s solicitor wrote to the first respondent. After referring to past complaints by the applicant in respect of pain in his abdominal area after the 1992 surgery and to a referral back to the first respondent by the applicant’s general practitioner, the letter stated -
“Mr Miller has informed us that you have on a number of occasions sought to determine the cause of his discomfort and that you arranged for our client to undergo a range of medical tests such as colonoscopy, endoscopy, cat scans, x-rays, blood tests, etc. We are further informed that the results of those tests failed to determine the cause of his abdominal pain.”
The letter concluded by suggesting that the first respondent refer the letter to his professional indemnity insurers “as it is our contention that there has been negligence ... and that you as the operating surgeon have the responsibility to ensure that there was no retained foreign body”. The first respondent replied to the letter of 16 August on 27 August 1996. In that letter the first respondent sought further information concerning the tubing and-
·expressed doubt that there could have been any negligence on his part or that of the second respondent;
·suggested that the applicant himself may have been at fault;
·suggested that the manufacturer of the tubing may have been at fault.
On 19 December 1996 the applicant’s solicitors sent a photograph of the tubing to the first respondent. The solicitors also wrote that day to the second respondent alleging negligence on the part of the second respondent and suggesting that if the second respondent wished to view a photograph of the tubing that it contact the first respondent.
In a letter dated 24 December 1996 the first respondent stated that he was unable to identify the tubing from the photographs and asked to see the original sample. There was then discussion about inspection of the sample. In a letter of 5 February 1997 the second respondent stated that all drainage tubes inserted in the applicant in the course of the 1992 operation had been removed and suggested, by inference, that a “silicon band ... applied by the surgeon” may have been the cause of the applicant’s problems.
The applicant’s solicitors continued with their enquiries. On 3 September 1997 they requested that Dr White (the surgeon who had removed the tubing) provide a report dealing with questions including the most likely occasion on which the tube was left in the plaintiff’s abdomen. Exchanges of correspondence then took place between the solicitors and Dr White. He presented a report dated 13 October 1997 which was received by the solicitors on 24 October 1997. The report stated inter alia -
“I believe it was most unlikely that a tube of any nature could be left in a patient after cardiac surgery, especially a tube of this nature.”
A Supreme Court writ was issued on 19 October 1998.
The applicant’s general practitioner, Dr Carlyle, assisted Dr White in conducting the 1996 operation in which the tubing was found. He swore that Dr White undertook to write to Dr Broadbent and to obtain a reply before giving “a definitive opinion as to the source of (the) foreign body”. He said that he was requested by the applicant’s solicitors to provide a report in 1997 and declined on the basis that it was more appropriate that the consultant surgeon do so. He swore, and I accept, that the applicant consulted him on a number of occasions in 1996 and 1997 for other medical problems and that the topic of the origin of the tube arose on those occasions. Dr Carlyle “insisted that he wait until the definitive report was sent to his solicitor as this would represent the best medical opinion as to medical causation”. He declined to express the view to the applicant that there had been a breach of duty on the part of any medical practitioner.
Counsel for the respondents make the points that -
(a)there was never any serious possibility that the tubing was left in the applicant in the course of the chest operation in 1994 and the applicant did not, at any time, understand that persons connected with that operation were or might be liable. At no time was any written allegation of negligence made to any of such persons;
(b)the applicant complained of pain in his abdominal area after the 1992 surgery.
(c)Dr White was contactable between May 1996 and October 1997. The applicant failed to take reasonable steps in order to find relevant facts by not pursuing enquiring with Dr White at any earlier stage.
(d)On receipt of Dr White’s report the applicant had further evidence in relation to his claims but any further facts then communication to him were not of a “decisive character” within the meaning ascribed to those words by s. 30 of the Act.
The applicant’s principal contention was that the applicant took all reasonable steps to ascertain the material fact relied on by placing the matter in the hands of his solicitors to make due enquiry. In Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419 McPherson J said at 431 -
“Placing the matter in the hands of apparently competent solicitors with adequate instructions including information relevant to the cause of action would ordinarily amount to taking all reasonable steps to ascertain the relevant facts, provided that the plaintiff did his best to ensure that the solicitors did not languish in the prosecution of the action.”
The judgment of Thomas J acknowledges that for the purposes of satisfying the requirements of s.30(1)(a) a person may act through an agent such as a solicitor.
The material reveals that prior to the receipt of Dr White’s report the applicant and his solicitors entertained no more than a suspicion as to the circumstances in which the tubing was left in the applicant’s body. It is easy for the respondents to submit now, with the advantage of hindsight, that the origin of the tube must have been obvious having regard to the nature of the surgical procedure in 1994 and to the advent of pain after the 1992 procedure. However, neither respondent accepted liability. Both, in correspondence, sought to absolve themselves from liability and to suggest alternative lines of enquiry.
The applicant proceeded to investigate his rights appropriately and cautiously. He instructed solicitors who set about making enquiry in a competent fashion. He was entitled to rely on them but, as the above narrative discloses, he also pursued enquiries with his general practitioner. They did not bear fruit.
The applicant’s major difficulty, in my view, lies in demonstrating that Dr White’s report contained a new fact which bore upon the true identity of any potential defendant or defendants and the applicant’s prospect of success against such defendant or defendants.
In Byers v. Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, Lee J, with whom McPherson and de Jersey JJ agreed, cited with approval the following passage from the judgment of Macrossan J in Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd R 325–
"In cases like the present, an applicant for extension discharges his onus not merely by showing that he has learned some new fact which bears upon the nature of extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learned fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s.30(b) comes down to: Taggart v. The Worker's Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J".
The above passage was adopted by Connolly J, with whom Ryan and Cooper JJ agreed in Berg v. Kruger Enterprises [1990] 2 Qd R 301.
I have concluded that a material fact of a decisive character first came to the applicant’s knowledge when he became aware of the contents of Dr White’s report. Before the contents of that report were communicated to him he had strong suspicions as to the origin of the tubing but, as a lay person he was not in a position where he could properly assess the prospects of success of any action he may commence or even properly determine the parties to any such action. Upon the receipt of the report the applicant, for the first time, had an expert opinion which largely ruled out the 1994 operation as a possible source of his problems. Disposed of by that report was any reasonable possibility of migration of the tubing after the 1994 surgery. The report also linked the tubing to the applicant’s reported discomfort since the 1992 surgery. Without such advice the applicant could only speculate as to the connection (if any) between his pain and the presence of the tubing.
It was also argued on behalf of the second respondent that there was no evidence to establish a right of action against it on the part of the applicant. In my view, there is adequate evidence to satisfy the applicant’s evidentiary burden as discussed in cases such as Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431. There is evidence to show that a foreign body was left in the applicant’s abdominal cavity during an operation in the second respondent’s hospital. The first respondent surgeon denies liability and advances reasons why he is not to blame. Further, an inference may be drawn from the facts as to a duty on the part of the theatre staff to conduct appropriate checks in relation to equipment used in the course of operations.
I will hear submissions as to the orders which ought be made to give effect to these reasons.
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