Neutze v Clarke
[2022] QSC 155
•25 July 2022
SUPREME COURT OF QUEENSLAND
CITATION: Neutze v Clarke & Anor [2022] QSC 155 PARTIES: CATHERINE NEUTZE (applicant) v
BARTON CLARKE(first respondent) STATE OF QUEENSLAND (second respondent) FILE NO/S: 7382 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING Supreme Court at Brisbane COURT: DELIVERED ON: 25 July 2022 DELIVERED AT: Brisbane HEARING DATE: 15 June 2022 JUDGE: Hindman J ORDER:
1. Application dismissed. 2. The applicant pay the respondents’ costs of the application.
3. Grant leave under rule 376(3) of the Uniform Civil
Procedure Rules 1999 for the plaintiff to amend the
claim and statement of claim to remove the pleaded
negligence action.
CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – WHAT ARE MATERIAL FACTS – where the applicant filed a proceeding including a negligence claim in the nature of a failure to warn case – where the proceeding is statute barred by section 11(1) of the
Limitation of Actions Act 1974 (Qld) – where the alleged
material fact of a decisive character was medical reports along with solicitor’s advice of a viable claim – where the applicant consulted with three sets of solicitors regarding her claim – where the first defendant had become cognitively impaired since the claim had been filed - whether medical reports along with legal advice was a material fact of a decisive character – whether all reasonable steps taken to find out the relevant material facts of a decisive character – whether there was prejudice to the respondents from the first defendant’s declining cognitive status rising to the level that would make a trial inherently unfair.
Limitation of Actions Act 1974 (Qld), ss 30, 31
Berg v Kruger Enterprises Ltd [1990] 2 Qd R 301
Brisbane South Regional Health Authority (1996) 186 CLR
541
Campbell v United Pacific Transport Pty Ltd [1966] Qd R
465
Castlemaine Perkins Ltd v McPhee [1979] Qd R 469
Cowie v State Electricity Commission (Vict) [1964] VR 788
Do Carmo v Ford Excavations Pty Ltd [1984] 154 CLR 234
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA
112
Sugden v Crawford (16 October 1987, unreported)
State of Queensland v Stephenson [2006] 226 CLR 197Taggart v Workers’ Compensation Board of Queensland
[1983] 2 Qd R 19
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431
COUNSEL: C Wilson for the applicant
D Schneidewin and R Nattrass for the respondentsSOLICITORS: AJB Stevens Lawyers for the applicant
Minter Ellison for the respondentsApplication pursuant to s. 31 LAA
[1] The applicant applies for an extension of time pursuant to section 31 of the Limitation
of Actions Act 1974 (Qld) (LAA).
[2] The applicant filed a proceeding in the Supreme Court of New South Wales on 4
October 2018, which proceeding includes a negligence claim in the nature of a failure
to warn case, in respect of two surgeries that the applicant underwent in 2011. The
applicant is the plaintiff in the proceeding. The first and second respondents to the
present application are the first and second defendants respectively in the proceeding.
The proceeding was transferred to this court on 1 July 2019. The law of Queensland
applies to the claim.
[3] The pleaded negligence claim is statute-barred (by operation of section 11(1) of the
LAA) and should not be permitted to proceed further, unless the present application
is successful.
Relevant test
[4] The relevant provisions of the LAA for the purpose of the present application are as
follows:
“31 Ordinary actions (1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(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 Interpretation
(1) 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;
… (iii)
the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
… (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)
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 know the fact at that time; and
(ii)
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.
(2) In this section - 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.”
Matters not in dispute - s. 31(2)(b) LAA satisfied
[5] The parties are agreed, and I accept, that s. 31(2)(b) LAA is satisfied on the evidence
before me. That is, there is evidence to establish the relevant right of action apart
from a defence founded on the expiration of a period of limitation.
The nature of the negligence claim
[6] The statement of claim dated 4 October 2018 reveals details of the pleaded negligence
claim (in summary below):
(a) The plaintiff is a 52-year-old woman (as at 2018).1 (b) The plaintiff was a patient of, and in the care of, the first and second defendants and received medical advice and services from the first and second defendants.2
(c) In about 2010, the plaintiff consulted with the first defendant (then a practising obstetrician and gynaecologist3) in relation to her urinary incontinence. The
first defendant practised at places including premises of the second defendant.4
(d) The first defendant advised and treated the plaintiff, including by way of two surgeries that occurred in 2011.5
(e) In respect of that advice provided by the first defendant to the plaintiff, it is alleged by the plaintiff that the first defendant:6
(i) advised the plaintiff that her condition should be treated by way of surgery;
(ii) advised the plaintiff that the procedure would incorporate a “tape”;
(iii) did not discuss the literature and information known, or which ought to
have been known, by the defendants concerning complications with such
“tape”;
(iv) did not provide the plaintiff with other surgical or other options,
including low risk conservative measures, in order that the plaintiff could
make an informed decision and provide informed consent, apropos the
surgical insertion of the “tape”.
(f) The plaintiff’s condition was not resolved by either of the 2011 surgeries and the plaintiff’s condition continued to deteriorate (with additional complaints).7
1 Statement of claim, [5].
2 Statement of claim, [4(d)].
3 The first defendant has since retired.
4 Statement of claim, [6] and [4(a)].
5 Statement of claim, [7], [9]-[14].
6 Statement of claim, [8].
7 Statement of claim, [11]-[12], [15]-[17].
(g) It is alleged by the plaintiff that the defendants breached the duty of care owed by them to the plaintiff in that they:8
(i) failed to warn or to provide any or any adequate information to the
plaintiff in respect of a risk, or other matter, of which the defendants
knew or ought to have known concerning the suitability of the medical
products, which were to be surgically implanted within the plaintiff;
(ii) failed to take reasonable care to provide the plaintiff with such
information as a reasonable person in the plaintiff’s position would, in
the circumstances, want to be given before deciding whether or not to
undergo the proposed treatment;
(iii) failed to take reasonable care to provide the plaintiff such information as
the defendants knew, or ought to have known, the plaintiff would have
wanted to have been given before determining whether to undergo the
proposed treatment or not.
(h) It is alleged by the plaintiff that had the plaintiff received the information referred to in the pleading,9 that the defendants ought to have provided to her,
the plaintiff would not have agreed to the 2011 surgeries.10
(i) It is alleged by the plaintiff that the plaintiff has suffered and continues to suffer
serious injury, loss and damage as a consequence of the defendants’ breaches
of the duty of care.
[7] Focussing on the advice alleged to have been given or not given by the first defendant
as pleaded by the plaintiff in the statement of claim, the applicant in her affidavit filed
19 May 2022:
(a) at [20]-[49] details her recollection of the advice given to her and not given to her prior to the first surgery;
(b) at [70] and [75]-[86] details her recollection of the advice given to her and not given to her prior to the second surgery.
8 Statement of claim, [22].
9 I take this to be a reference to [8(c)] and [8(d)] of the statement of claim which is the only part of the pleading in which it is alleged that certain (identified) information was not provided to the plaintiff.
10 Statement of claim, [23].
[8] In respect of the serious injury, loss and damage pleaded in the statement of claim,
the applicant in her affidavit filed 19 May 2022 sets out at [410]-[411] an extensive
list of the signs, symptoms and disabilities she has suffered since the first surgery.
Her affidavit details how those matters have had a significant detrimental effect on
all aspects of her life.
Material fact of a decisive character
[9] To protect the negligence cause of action pleaded in the proceeding, that was filed on
4 October 2018, the material fact of a decisive character relating to the right of action
must not have been within the means of knowledge of the applicant prior to 4 October
2017.
The applicant’s position
[10] The applicant’s written submissions identify at [9] that the material fact of a decisive
character relating to the right of action that was not within the means of knowledge
of the applicant until on or about 11 December 2017 was:
“the advice of her solicitors, AJB Stevens that on or about 11 December 2017 they first advices [sic] Mrs Neutze that she has a viable claim against the respondents and that the firm would represent her in the proposed claim.”
[11] I pause here to note that it is difficult to see how that could be a material fact of a
decisive character relating to the right of action. It is merely legal advice about the
right of action. It is not, in my view, a material fact relating to the right of action.
[12] However, as the applicant’s oral argument was developed during the hearing of the
present application, the applicant alleged that the material fact of a decisive character
relating to the right of action that was not within the means of knowledge of the
applicant until on or about 11 December 2017 was:
(a) information contained in the material provided by the applicant to the
applicant’s solicitors on 26 October 2017 and in particular:
(i) a report from Dr Lander dated 5 December 2013;
(ii) a report from Dr Reid dated 17 March 2014;
(iii) a further report from Dr Lander dated 27 July 2017,
(b) combined with the applicant’s solicitors’ advice that the applicant had a viable claim against the respondents and that the firm would represent her in the
proposed claim.11
[13] Keeping in mind the nature of the negligence claim pleaded, being a failure to warn
case, the parts of the above reports specifically relied upon by the applicant as forming
part of the material facts of a decisive character relating to the right of action are as
follows:
(a) in respect of the report from Dr Lander dated 5 December 2013:12 (i) the third paragraph of the report contains the following words (emphasis
added):
“3D/4D trans perineal ultrasound scan has recently performed on 26th November 2013. This showed a trans obturator tape position in the mid-urethra and kinked on the right side with the right arm extending 2cm above the symphysis pubis to end near the bladder neck. It would appear that this arm has become dislodged from its position where it was inserted. The left arm appears well positioned. The tape is definitely non-functional. There is at least a 4mm gap between the tape and the urethra. The
urethra is immobile swinging less than 2mm so at no stage has this tape been able to function. Significant
funnelling of the bladder neck occurs with straining.”
(ii) the emphasised words were submitted by the applicant to show that
appropriately the applicant should have been advised that she was never
a suitable candidate for the surgeries (because of her physical
architecture13 - namely, a relatively immobile urethra),14
(b) in respect of the report from Dr Reid dated 17 March 2014:15
(i) the second page of the report contains the following words (emphasis added):
“1. Mesh pain syndrome: Part of Catherine’s chronic disability seems to relate to a mesh pain
11 See affidavit of Adrian Barakat [CFI 22], [37]; and applicant’s written outline of submissions, [9].
12 Commencing at exhibit page 20 of the affidavit of Adrian Barakat [CFI 22].
13 Transcript 1 page 31 at lines 43-44.
14 Transcript 1 page 34 at lines 28-30.
15 Commencing at exhibit page 15 of the affidavit of Adrian Barakat [CFI 22].
syndrome, from an incorrectly positioned mid-
urethral sling. Actual sling type remains uncertain.
Given the deviation from expected TOT sling course seen on Dr Lander’s ultrasound, it is difficult to envisage that this could be a
Monarc tape. A TOT sling always curves
downwards from its puncture point in the obturator foramen. The introduction device allows little variability from this course. Hence, I cannot understand how a TOT sling could track upwards beside the urethra.
Conversely, a misdirected Miniarc single puncture sling could potentially be placed in a course that headed superiorly against
instead of lateral.2. Diffuse myalgia: As is common in mesh pain
syndromes, Catherine has a diffuse myalgia
secondary to myofascial tape irritation.”(ii) the emphasised words were submitted by the applicant to show that there
was an identified possible (adverse) outcome of the surgery (namely,
mesh pain syndrome), that the applicant says she was not warned about,16
(c) in respect of the report from Dr Lander dated 27 July 2017:17
(i) the third paragraph of the report contains the following words (emphasis added):
“The ultrasound scan showed that she was emptying her bladder satisfactorily and the bladder wall thickness was not indicative of any significant obstructed outflow. It also confirmed what we already knew about the urethra being fixed. Funnelling of the bladder neck persisted which is indicative of stress urinary incontinence. An intact trans obturator tape with both arms present was noted indicating that no tape had been excised. As we knew the tape was approximately 3.7 to 4mm from the urethra which was too loose. Granulomatous change which is indicative of inflammation and infection was not present. The tape was too loose to be effective and the
immobility of the urethra made it incompatible with a successful tension free vaginal tape procedure. No
other abnormality was noted in the pelvic floor.”
16 Transcript 1 page 32 at line 45 to page 33 at line 16.
17 Commencing at exhibit page 2 of the affidavit of Adrian Barakat [CFI 22].
(ii) the emphasised words were submitted by the applicant to show that the
applicant should have been advised that she was never a suitable
candidate for the surgeries (because of her physical architecture)18 and
should have been advised in relation to conservative measures not
involving surgery (such as pelvic floor exercises).19
[14] In terms of the evidence from the applicant as to the material facts of a decisive
character relating to the right of action, the applicant’s affidavit makes no direct
reference to the three reports referred to above, what she made of the reports, whether
and when she provided the reports to various solicitors with whom she consulted, or
what advice she sought and received about the reports.
[15] Evidence from the applicant’s current solicitors shows:
(a) the reports were provided by the applicant to her current solicitors on 25 October 2017;20
(b) the applicant’s current solicitors first advised the plaintiff that she had a viable claim and that they would represent her in that claim on about 11 December
2017. Her current solicitor swears: “Our assessment was based on the information contained in the material provided to us by the plaintiff on 26 October 2017 which included, inter alia,
(a) a report from Dr Lander dated 5 December 2013 which stated that, on his examination, the tape was definitely non-functional and at no stage had the tape been able to function, there recommending its excision; and (b) a report from Dr Reid dated 17 March 2014 which stated that the mid-urethral sling was incorrectly positioned and recommended that it be excised.”21
[16] Having regard to s. 30 LAA, it is the applicant’s position that:
(a) the identified material facts relate to the right of action because the facts
concern:
(i) the fact of the occurrence of negligence (s. 30(1)(a)(i) LAA);
18 Transcript 1 page 31 at lines 43-44.
19 Transcript 1 page 31 at lines 30-34. See also more generally transcript 1 page 32 at lines 1-26.
20 Affidavit of Tony Barakat [CFI 24], [11].
21 Affidavit of Adrian Barakat [CFI 22], [37].
(ii) the fact that the negligence caused personal injury (s. 30(1)(a)(iii) LAA);
(iii) the extent to which the personal injury is caused by the negligence
(s. 30(1)(a)(v) LAA),
(b) the identified material facts were not within the means of knowledge of the applicant before 11 December 2017 (s. 30(1)(c) LAA) because:
(i) the applicant did not know the identified material facts at that time (the applicant not receiving the identified legal advice until on or about 11
December 2017); and
(ii) as far as the identified material facts were able to be found out by the
applicant, the applicant had taken all reasonable steps to find out the facts
before that time,
(c) the identified material facts were of a decisive character (s. 30(1)(b) LAA) because a reasonable person knowing those facts and having taken 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 damage sufficient to justify the
bringing of an action on the right of action; and
(ii) that the applicant ought, in her own interests and taking her
circumstances into account, to bring an action on the right of action.
The respondents’ position
[17] The respondents’ position is that:
(a) what is alleged by the applicant as being a material fact of a decisive character relating to the right of action:
(i) is not a material fact of a decisive character relating to the right of action
at all because what occurred on about 11 December 2017 was simply
that there was an introduction of knowledge of the legal effect of facts
already known;
(ii) the “facts” in the reports relied upon were not material to the failure to
warn negligence case pleaded (and therefore were also not of a decisive
character),
(b) the material facts of a decisive character (which are denied) were within the means of knowledge of the applicant before 4 October 2017 because:
(i) the applicant had the reports before 4 October 2017; (ii) the material facts of a decisive character were able to be found out by the applicant, and the applicant had not taken all reasonable steps to find out
the facts before that time.
Further background facts – the applicant’s attempts to bring a claim
[18] Annexure 1 hereto is the applicant’s chronology which sets out (in a summary way)
the steps taken by the applicant to obtain the necessary expert medical evidence and
legal representation in order to bring a claim against the defendants.
[19] The following matters are particularly noteworthy from the applicant’s chronology:
(a) the applicant consulted with at least three sets of solicitors prior to obtaining her current representation, all at times when the applicant was (I infer absent
any evidence to the contrary) in possession of Dr Lander’s first report and Dr
Reid’s report referred to at [13] above;22
(b) the applicant does not appear to have taken active steps to proceed with a claim between late 2014 and early 2017; it is submitted for the applicant that
effectively the applicant had given up on pursuing her claim at that time given
the difficulties she had encountered advancing the claim.
Analysis
[20] I do not consider that the giving or receipt of legal advice constitutes the whole or
part of the “material facts” relating to the right of action with which ss. 30 and 31
LAA are concerned.
22 The three sets of solicitors being: Peter Deed of Cranston McEachern; Gerard Malouf & Partners; Catherine Henry Lawyers.
[21] I consider that to be the effect of the decision on this issue in Do Carmo v Ford
Excavations Pty Ltd.23 In that case the court had occasion to consider the equivalent
of s. 30(1)(a)(i) LAA that refers to “the material facts relating to a right of action
include the following – the fact of the occurrence of negligence…”, and whether the
existence in law of a right of action is a relevant “material fact”. The question of
construction was if the words “the fact of the occurrence of negligence” refer only to
the acts or omissions alleged to constitute the relevant tort or instead refer to legal
concepts or causes of action.
[22] Each of Murphy ACJ, Wilson J, Brennan J (who agreed with Dawson J), Deane J
(who agreed with Wilson J on this issue) and Dawson J reached the same conclusion
on this issue. As was put by Dawson J at 253:
“Despite the inherent ambiguity in [the equivalent of s. 30(1)(a)(i) LAA], I think that the reference to ‘the fact of the occurrence of negligence’, when read in context, is clearly enough a reference to facts rather than to a cause of action which arises as a matter of law upon those facts.”
[23] I agree. And further, I consider that the same reasoning must apply to ss. 30(1)(a)(iii)
and (v) LAA. Those subsections are likewise concerned with facts, not legal advice
about those facts.
[24] Accordingly, I do not accept that the relevant material fact relating to the right of
action can be that articulated by the applicant as set out in [12] above (or [10] above).
[25] That is not conclude though that legal advice is irrelevant. Legal advice, or other
“appropriate” advice, may be relevant to determining whether material facts relating
to a right of action are of a decisive character. Material facts relating to a right of
action will obtain a characterisation of being decisive upon satisfaction of s. 30(1)(b)
LAA which contemplates the taking of advice. I will return to that.
[26] I will proceed to consider whether the material fact of a decisive character relating to
the right of action that was not within the means of knowledge of the applicant until
on or about 11 December 2017 was all or some combination of the information
contained in the material provided by the applicant to the applicant’s solicitors on 25
October 2017 and in particular:
23
[1984] 154 CLR 234. (i) a report from Dr Lander dated 5 December 2013;
(ii) a report from Dr Reid dated 17 March 2014;
(iii) a further report from Dr Lander dated 27 July 2017.
[27] I have set out what was submitted to be the relevant parts of the reports and why at
[13] above.
[28] It was not immediately obvious to me that those identified parts of the reports disclose
material facts relating to the right of action (namely a negligence claim based on a
failure to warn), specifically of the type mentioned in ss. 30(1)(a)(i), (iii) or (v) LAA,
let alone material facts of a decisive character relating to the right of action.
[29] It may have been expected that what is alleged to be the material facts of a decisive
character relating to the right of action would usually be contained in the statement
of claim. Although that may not always be the case because the relevant fact is not
required to be an essential element of the right of action to be material;24 for example,
the fact might properly, in a pleading sense, be considered to be evidence to prove an
essential element of a right of action,25 rather than a material fact required to be
pleaded. Here, the statement of claim makes no express reference to the plaintiff
having an immobile urethra, or mesh pain syndrome being a known complication of
the surgeries performed. There is reference in [8(c)] of the statement of claim to the
plaintiff not being advised about complications with the relevant tape. There is
nothing in the statement of claim that suggests that the plaintiff’s “architecture” made
the surgeries inadvisable.
[30] However, the allegations of breach of duty at [22] of the statement of claim do appear
wide enough to capture a case (presently not properly particularised) that, (1) the
plaintiff should have been given advice about the desirability of the surgeries in light
of her immobile urethra, and (2) the plaintiff should have been given advice about the
possibility of mesh pain syndrome arising as a consequence of the surgeries.
24 Castlemaine Perkins Ltd v McPhee [1979] Qd R 469 at 471 per Connolly J with whom the other
members of the Court agreed.
25 See Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [45], per McMurdo J (as he was then).
[31] Accordingly, it does appear to me that the material facts set out in [26] above are facts
that may need to be established to show the negligent character of the defendants’
alleged negligent failure to warn.26
[32] Further, I take into account Adrian Barakat’s evidence at [37] of his affidavit [CFI 22]
in relation to the first two reports. I note that whilst Mr Barakat does not specifically
identify the parts of the first two reports set out at [13] above, Mr Barakat was not
required for cross-examination.
[33] On the basis identified in [30] to [32] above, I find that the first two reports disclose
material facts of a decisive character relating to the relevant right of action. The third
report relevantly adds nothing to the first report and I will deal with it shortly. But to
obtain their decisive character, I find that a reasonable person knowing the identified
content of the first two reports would need to have taken appropriate advice in order
to regard those facts as showing the matters in ss. 30(1)(b)(i) and (ii) LAA.
[34] In that regard, in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 437,
Macrossan CJ said (authorities omitted, my emphasis):
“The statutory scheme constituted by ss 30 and 31 seems to assume that an applicant either may or may not at some earlier time have knowledge of particular matters which are in the category of material facts but he is nevertheless not excluded from the possibility of obtaining an extension of the limitation period if he is not yet (and even if he had made reasonable enquiries and taken advice would not yet be) in possession of some one or more material facts of a decisive character. When some critical knowledge or constructive
knowledge of facts is belatedly gained which puts him over the borderline into a position where for the first time he has reasonable prospects and should in his own interests commence his proceedings he may be entitled to his extension …”
[35] See also Pikrt v Hagemeyer Brands Australia Pty Ltd.27
[36] As I have identified above, there are three reports relied upon by the applicant: two
by Dr Lander (dated 5 December 2013 and 27 July 2017) and one by Dr Reid (dated
17 March 2014). As can be seen in [13] above, the relevant content of Dr Lander’s
two reports is virtually identical. I do not consider that the second Dr Lander report
26 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 254 per Dawson J.
27 [2006] QCA 112.
relevantly contains any material fact relating to the relevant right of action not already
known to the applicant as a consequence of the first report.
[37] That leads me to conclude that the third report does not in fact contain any material
fact of a decisive character relating to a right of action that is contemplated by ss. 30
and 31 LAA. The repetition of an already existing and known material fact of a
decisive character relating to a right of action is not with what those sections are
properly concerned.
[38] In a like manner, I note that strictly if the first report discloses material facts of a
decisive character relating to the relevant right of action that would satisfy s. 30(1)(b)
LAA, then the second report becomes irrelevant for the purpose of s. 31(2) LAA.
That is because, as was explained in Berg v Kruger Enterprises Ltd,28 once the test of
decisiveness in s. 30(1)(b) LAA is satisfied, the obligation to commence proceedings
runs (because at that time the plaintiff knows they have a worthwhile cause of action).
[39] The next question then (s. 31(2)(a) LAA) is whether the material fact of a decisive
character relating to the right of action was not within the means of knowledge of the
applicant prior to 4 October 2017.
[40] This enquiry directs attention to s. 30(1)(c) LAA.
[41] I start with the position that the “fact” referred to in s. 30(1)(c) LAA is the fact that
satisfies s. 30(1)(b) LAA. I think that is plain on the proper construction of the statute
and is consistent with the decision in State of Queensland v Stephenson [2006] 226
CLR 197 at 208 [29]-[30], per Gummow, Hayne and Crennan JJ.
[42] I find that that fact was not within the knowledge of the applicant (subsection (i)) –
the applicant in fact not obtaining the appropriate advice that gave the material facts
their decisive character until 11 December 2017.
[43] The question to consider then under subsection (ii) is: did the applicant take all
reasonable steps to find out the fact before that time? Given the actual reports were
already in her possession, this question directs attention to whether the applicant took
28 [1990] 2 Qd R 301. By reference to the decisions in Sugden v Crawford (16 October 1987, unreported),
Taggart v Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 and Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R
all reasonable steps to obtain the advice necessary to give the material facts in the
reports their decisive character. This assessment is to be carried out with reference
to the reasonable steps a person in the position of the applicant should have taken.29
[44] I refer to the history of the applicant attempting to pursue her claim, including as set
out in the applicant’s chronology (see [18] above). Whilst I particularly focus on the
time period from 17 March 2014 to 4 October 2017, I have regard to the whole of the
circumstances as informing me about the reasonable steps the applicant should have
taken during that identified time period.
[45] The applicant was in possession of the two relevant reports by about 17 March 2014,
and the applicant had the opportunity to take legal advice arising from those two
reports from more than one firm after 17 March 2014 (see [19](a) above). As set out
in [14] above, the applicant’s affidavit makes no direct reference to the reports, what
she made of the reports, whether and when she provided the reports to various
solicitors with whom she consulted, or what advice she sought and received about the
reports. That is a significant lacuna in the applicant’s evidence.
[46] Such evidence may have better informed the applicant’s lack of action during the
period September 2014 to 2017, when further legal advice (or other appropriate
advice) could have been sought, but was not.
[47] Whilst I acknowledge that the applicant did take significant (and appropriate) steps
to attempt to obtain legal representation up to September 2014 for the purpose of
bringing a claim (even if I do not know what she actually did with the relevant
reports), and that she must have been very discouraged by the outcomes of her efforts
in that respect, in circumstances where the applicant was firmly personally of the view
that a wrong had been done to her by the respondents that had caused her serious
injury, and she knew that the limitation period for bringing a claim against the
respondents had already expired (having been put on notice of the limitation period
by a solicitor who had been acting for her) it was not reasonable, even for the
applicant bearing in mind her personal circumstances, to allow more than two further
years to pass by (2015-6), not attempting to obtain the advice needed to justify a claim
being brought.
29 NF v State of Queensland [2005] QCA 110 at [29] per Keane JA (as his Honour then was).
[48] I find that the applicant, taking into account her personal circumstances, did not take
all reasonable steps to find out the relevant material facts of a decisive character
before 4 October 2017. Thus, s 30(1)(c)(ii) LAA is not satisfied. I consider therefore
that the material facts of a decisive character relating to a right of action were within
the means of knowledge of the applicant prior to 4 October 2017.
Conclusion – are the requirements of ss. 31(2)(a) and (b) LAA satisfied?
[49] In summary I find in relation to the requirements of ss. 31(2)(a) and (b) LAA that:
(a) the report of Dr Lander dated 5 December 2013 and the report of Dr Reid dated 17 March 2014 disclose material facts of a decisive character relating to the
relevant right of action (as set out in [13](a)(i) and [13](b)(i) above);
(b) those facts were not actually known to the applicant as at 4 October 2017; (c) those facts were able to be found out by the applicant before 4 October 2017; (d) the applicant did not take all reasonable steps to find out those facts before 4 October 2017;
(e) accordingly, the material facts of a decisive nature relating to the relevant right of action were within the means of knowledge of the applicant before 4 October
2017;
(f) there is evidence to establish the right of action (negligence claim, failure to warn case) apart from a defence founded on the expiration of a period of
limitation;
(g) as ss. 31(2)(a) and (b) LAA are not satisfied, I have no discretion to order an extension of the relevant limitation period.
[50] In case I am wrong in that conclusion, I will proceed to consider the issue of prejudice
to the defendants and the general discretion that arises under s. 31(2) LAA.
Prejudice to the defendants
The alleged prejudice
[51] In considering the issue of prejudice to the defendants that may be suffered if the
application is granted, it is useful to start with a consideration of what the defendants
knew (at relevant times) of the negligence action now brought against them.
[52] The surgeries were performed in 2011. The applicant swears in her affidavit filed 19
May 2022 at [93] that for the two years following the surgeries she continued to
consult the first defendant about her pain.
[53] On about 23 March 2012 the applicant delivered a section 9A Initial Notice to the
Royal Brisbane and Women’s Hospital. That notice concerned the second surgery
only and an allegation that during that surgery there was an accidental injury to the
applicant’s urethra requiring a remedial operation. The notice did not concern the
first surgery, nor any alleged failure to warn type case.
[54] A Part 1 Notice of Claim was delivered on or about 18 June 2012, however it was
non-compliant as it was not accompanied by a medical report. Again, it concerned
the second surgery only and an allegation that during that surgery there was an
accidental injury to the applicant’s urethra. The applicant was put on notice of the
non-compliance of the notice by letter dated 4 July 2012.
[55] The defendants had no further contact from the applicant or her representatives until
4 October 2018. The defendants’ solicitors’ files were closed in the interim.
[56] The statement of claim in this proceeding was filed in the Supreme Court of New
South Wales on 4 October 2018. A summary of the pleaded negligence claim is set
out at [6] above. The second respondent’s solicitors wrote to the applicant’s solicitors
on 17 May 2019 and 31 May 2019 regarding the expired limitation period. On 1 July
2019 the proceeding was transferred to the Supreme Court of Queensland.
[57] Having been served with proceeding, the first respondent’s then solicitors proceeded
to obtain a statement from the first defendant dated 30 June 2019. Privilege has not
been waived over the statement, or any part of it.
[58] There is unchallenged evidence that when the statement was taken the first defendant
did not have access to the second defendant’s records, including in respect of the two
surgeries.30 There is no evidence before me as to any relevant records personal to the
first defendant being available to the first defendant at the time of the taking of the
first defendant’s statement.
30 [16(a)], affidavit of Sinclair filed 13 June 2022 [CFI 32].
[59] I infer that in taking the first defendant’s statement, the first defendant would have
been asked to address the allegations made in the filed statement of claim. It was not
for the first defendant to guess at some other claim that might be made, particularly
given the time that had elapsed since the two surgeries and any other claim being out
of time. Because the first defendant’s statement is not available to me on this
application, I do not know whether in June 2019:
(a) the first defendant had any recollection of the advice he provided to the applicant before each surgery;
(b) the first defendant had no recollection of the advice he provided to the applicant before each surgery but was able to recall details of his usual practice of the
advice provided to like patients;
(c) the first defendant had no recollection of the advice he provided to the applicant before each surgery and no recollection of the details of his usual practice of
the advice provided to like patients.
[60] On 6 July 2020 the respondents’ solicitors wrote to the applicant’s solicitors enquiring
when the applicant intended to make the application to extend time under the LAA.
No response was received.
[61] On 3 December 2021 the applicant’s solicitors delivered a Part 1 Notice of Claim
(again non-compliant) to the respondents. Insofar as the notice dealt with the failure
to warn case, it largely contained the detail already contained in the existing pleading.
Some additional detail about dates of consultations and risks not informed about were
contained in answer to question 15.
[62] A compliant Part 1 Notice of Claim, accompanied by the medical report of Dr Korda
dated 19 October 2020, was delivered to the respondents on 16 December 2021. It
appears that Dr Korda, in preparing that report, had available to him the second
defendant’s records, but not any personal records of the first defendant. He opined,
having regard to the second defendant’s records from the consultation at the time the
first surgery was recommended, that the “risks of surgery were not clearly explained
in the notes”. Nothing was said by Dr Korda in that report about the explanation of
risks regarding the second surgery. Dr Korda opined that the (first) surgery should
only have been recommended after conservative management had failed.
[63] The application to extend time under the LAA was not filed until 15 March 2022.
[64] On about 21 March 2022 the first defendant’s solicitors became aware that there was
a potential problem obtaining instructions from the first defendant due to capacity
issues. Timely enquiries then made by the first defendant’s solicitors led to:
(a) the discovery that the first defendant had been assessed by a geriatrician, Dr Mikli, on 22 April 2021 (for reasons apparently unrelated to the proceeding)
wherein the first defendant had received a diagnosis of mild cognitive
impairment;
(b) the obtaining of updated reports from Dr Mikli dated 27 May 2022 and 6 June 2022 wherein the first defendant received a diagnosis of early dementia
(probable Alzheimer’s disease) and the first defendant’s capacity to actively
participate in the proceeding was questioned.
[65] No objection to the contents of Dr Mikli’s reports was made,31 and Dr Mikli was not
required for cross-examination. It is, of course, a matter for the court to determine
the capacity of the first defendant to give evidence at the appropriate time, although
the court may be assisted in that task by expert evidence. But I am prepared to accept,
for the purpose of this application, based on Dr Mikli’s reports that:
(a) the first defendant’s early dementia will progress, albeit slowly, causing his condition to decline;
(b) the first defendant is likely to be unable to reliably recall the content of any of the consultations he had with the applicant between September 2010 and
November 2011;
(c) the first defendant is likely to be unable to reliably recall his “usual practice” in respect of making recommendations and providing information about the
type of surgeries performed on the applicant;
(d) the first defendant is unlikely to be assisted in his recollection by reviewing past medical records;
31 I did not allow an objection by the applicant as to the receipt into evidence of Dr Mikli’s report. Submissions were made on behalf of the applicant as to the weight to be given to certain aspects of Dr Mikli’s opinion.
(e) there is likely to be a real issue about the first defendant’s capacity to give evidence when that time comes.
[66] It is the respondents’ position that prejudice would be suffered by them if the sought
extension of time were granted. The respondents point to:
(a) “the inevitable depletion in the quality of the evidence due to the passage of time”; and
(b) the specific issue of the first defendant’s lack of capacity to provide instructions and incompetency to participate in the giving of evidence.
[67] It is the applicant’s position that:
(a) a diligent defendant faced with the timely complaint about the second surgery, should have taken steps to prepare the first defendant for the possibility of a
claim within the limitation period;
(b) the first defendant should have taken steps to better preserve his evidence at least upon the diagnosis of mild cognitive impairment in April 2021;
(c) there is no evidence that a fair trial cannot proceed on the documentary evidence; insofar as there has been no disclosure of the statement of the first
defendant taken in 2019 or other documentary records belonging to the first
defendant, an adverse Jones v Dunkel inference should be drawn that nothing
the first defendant can give evidence about would be helpful to his case;
(d) any prejudice to the respondents from the first defendant’s declining status does not rise to the level that would make a trial inherently unfair;
(e) the issues in the trial will almost entirely be decided on objective evidence and not on the memories of potential witnesses or the first defendant.
Onus [68] In respect of the issue of prejudice, whilst there is an evidentiary onus on the
respondents to raise any consideration telling against the exercise of the discretion in
the applicant’s favour, the onus of establishing that an extension of time should be
granted at all times lies with the applicant.
Analysis
[69] The respondents have placed into evidence sufficient facts to lead me to conclude that
actual prejudice, and the possibility of other prejudice, by reason of the effluxion of
time, will be suffered by the respondents if an extension of time is granted.32
[70] In this failure to warn type case, a crucial issue must be what was the content of the
conversations between the applicant and the first respondent at the relevant
consultations, pre-surgeries.
[71] As was said by Keane JA (as his Honour then was) in NF v State of Queensland33
(emphasis added, footnotes omitted):
“There are two further points which may be made here by reference to the decision in Brisbane South. The first is that it was important in that case, as is apparent from the joint reasons of Toohey and Gummow JJ, that the principal issue in the case turned upon the terms of a
conversation between the plaintiff and a medical practitioner employed by the defendant in relation to the risks of a proposed medical procedure. Their Honours drew attention to the contrast between such a case, where the lapse of time made a fair trial a virtual impossibility, and a case such as Kosky v Trustees of Sisters
of Charity, where the evidence bearing upon the major issues in the
case was largely documentary so that there was no prejudice by reason
of the lapse of time to the possibility of a fair trial on the merits.”
[72] Here, not only is the effluxion of time likely to adversely affect (at least to some
extent) the first respondent’s recollection of the relevant conversations (which are
now over ten years old), but the circumstance of the first respondent’s mental decline
makes the position of the respondents even more difficult. I consider, therefore, that
a fair trial is at least improbable.
[73] In respect of the applicant’s submissions, summarised at [67] above, I find as follows:
(a) I agree that a diligent defendant faced with the timely complaint about the second surgery, should have taken steps to prepare the first defendant for the
possibility of a claim within the limitation period. However, the claim that
needed to be prepared for was a claim based on the allegation that during the
32 Cowie v State Electricity Commission (Vict) [1964] VR 788 at 793 per Gowans J, endorsed in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474; cited with approval in Brisbane South Regional Health Authority (1996) 186 CLR 541, per Toohey and Gummow JJ at 547.
33
[2005] QCA 110 at [51]. second surgery the first defendant had negligently cut the applicant’s urethra.
No other claim had been foreshadowed or needed to be prepared for at that
time.
(b) I do not agree that the first defendant should have taken steps to better preserve his evidence at least upon the diagnosis of mild cognitive impairment in April
2021. By that time, a statement had been taken from the first defendant in
2019. The only negligence claim that had been brought at the time was the
failure to warn claim. It can be inferred that the statement taken related to that
claim. There is no basis to assume that statement is anything other than
comprehensive. There is no evidence to support a proposition that further steps
taken in 2021 would have better preserved the first defendant’s evidence than
had already been preserved.
(c) In a failure to warn type negligence claim where conservations are relied upon to evidence the failure to warn, evidence of the conversations or of usual
practice of conversations with like patients concerning risk are likely to assume
importance. That is likely to be so in this case. The documentary record of the
second defendant presently appears to be restricted to standard hospital consent
forms for the surgeries, which do not refer to the relevant conversations in any
detail. There does not appear to be any contemporaneous record of the relevant
conversations. I consider that there is a real risk that a fair trial will not be able
to be achieved where the applicant intends to give evidence as to conversations
with the first defendant and the first defendant’s ability to give evidence of
those conversations (or at least his usual practice in such conversations given a
recollection of the actual conversations is unlikely) is impaired. The
documentary record available does not appear to me to be able to address that
likely unfairness. I am not prepared to draw a Jones v Dunkel inference against
the respondents as a consequence of not putting the first defendant’s statement
into evidence in this application. The statement is privileged. There is no
obligation on the respondents to waive privilege in the statement. The failure
to have the first respondent give evidence in this application is explained by
reference to Dr Mikli’s report.
(d) I am satisfied that any prejudice to the respondents from the first defendant’s declining status does rise to the level that would make a trial inherently unfair
for the reasons set out in the preceding subparagraph.
(e) I do not agree that the issues in the trial will almost entirely be decided on objective evidence and not on the memories of potential witnesses or the first
defendant. It is a failure to warn case. The plaintiff intends to prove the alleged
failure to warn by giving evidence as to conversations had with the first
defendant. The memories of the first defendant of those conversations (or of
his usual practice in such conversations with like patients) are important.
The remaining discretion
[74] It remains to consider the general discretion, namely that the discretion should only
be exercised in favour of an applicant where, in all the circumstances, justice is best
served by doing so.34
[75] In addition to all of the matters I have already canvassed above, which I again have
regard to for purpose of considering the general discretion, I further have regard to:
(a) the context of the rationales for the existence of limitation periods,35 but tempered by the existence of the discretion given in s. 31(2) LAA which acts
as an exception to the general rule;
(b) that the exception is in the nature of a beneficial provision and should be construed and applied accordingly;
(c) the delay in the making of this application which did not appear to be adequately explained by the applicant (although I would accord this only a
small amount of weight given it is not clear to me whether the fault for that
delay lies with the applicant personally or her representatives);
(d) that the failure to grant an extension of time will deprive the applicant of the right to pursue the lost action.
34 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544, per Dawson J.
35 See, in particular, the four broad rationales referred to in Brisbane South Regional Health Authority v
Taylor, supra, 552-3 per McHugh J.
[76] Even if I had concluded that the general discretion arose under s. 31(2) LAA, given
my findings as to prejudice above, I would not have been prepared to exercise my
discretion in favour of granting the application.
Conclusion
[77] The application is dismissed. Costs should follow the event; that is, the applicant pay
the respondents’ costs of the application.
| Neutze v Clarke & Anor |
BS 7382 of 2019
Appendix
Index
1 Applicant’s Chronology
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