Rodgers v Chinsee - [2024] QDC 55

DISTRICT COURT OF QUEENSLAND

CITATION:

Rodgers v Chinsee [2024] QDC 55

PARTIES:

CASSANN RODGERS

(applicant)

v

IAN CHINSEE

(respondent)

FILE NO:

BD 3276/23

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

22 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2024

JUDGE:

Rosengren DCJ

ORDERS:

1. That the period of limitation be extended until 30 November 2023

2. I shall hear the parties as to the form of the orders and as to costs

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where the applicant commenced proceedings for medical negligence claiming damages for personal injuries associated with breast augmentation surgery – where the limitation period for any claim against the respondent has expired – whether a material fact of a decisive character was not within the means of knowledge of the applicant – whether there is a prima facie right of action against the respondent apart from the limitation issue

Limitation of Actions Act 1974 (Qld) s 30, s 31
Personal Injuries Proceedings Act 2002 (Qld) s 9A, s 43

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Dick v University of Queensland [2000] 2 Qd R 476
Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112
Greenhalgh v Bacas Training Ltd [2007] QCA 327
Healy v Femdale [1993] QCA 210
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168
Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2021] QSC 240
Moriaty v Sunbeam Corporation Ltd [1988] 2 Qd R 325

State of Queensland v Stephenson (2006) 226 CLR 197

Watters v Queensland Rail [2001] 1 Qd R 448

COUNSEL:

D Steiner for the applicant
D Schneidewin and B Stringer for the respondent

SOLICITORS:

Cranston McEachern Lawyers for the applicant

Kalantzis Lawyers for the respondent

Introduction

The respondent is a cosmetic doctor and the applicant was his patient. On 29 November 2023, the applicant filed a claim against him for personal injuries and consequential loss and damage arising out of four surgical procedures he performed on her in relation to bilateral breast augmentation between 1 September 2017 and 14 August 2018. The limitation period applying to the claim expired at the latest, on 14 August 2021. To proceed with the claim, the applicant seeks an order under s 31 of the Limitation of Actions Act 1974 (Qld) (‘the Act’) extending the limitation period until 30 November 2023. The order is opposed by the respondent.

Relevant facts

On 1 September 2017, the applicant underwent a bilateral breast augmentation procedure and a right breast crescent lift (‘the first surgery’). Prior to this, she signed a consent form, evidencing that she had been informed of numerous risks associated with such surgery.
In the post-operative period, the applicant experienced ongoing pain in her left breast. When reviewed by the respondent on 11 January 2018, she…

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 Rodgers v Chinsee

Details

AGLC: Rodgers v Chinsee [2024] QDC 55
Case: [2024] QDC 55
Decision Date: 22 April 2024

CaseChat Overview and Summary

The matter before the court was an application by the applicant, Rodgers, to extend the limitation period for commencing proceedings against the respondent, Chinsee, for damages arising from alleged medical negligence in breast augmentation surgery. The limitation period had expired, and the respondent argued that the applicant's claim was statute-barred. The court needed to determine if a material fact of decisive character was not within the means of knowledge of the applicant and if there was a prima facie right of action against the respondent, apart from the limitation issue.

The court considered the legal principles governing extensions of time in personal injury matters, particularly focusing on whether the applicant was aware of the material facts giving rise to the cause of action. It was noted that the applicant was unaware of the full extent of the injuries and their connection to the surgery until after the limitation period had expired. The court further assessed whether there was a prima facie right of action against the respondent, which it found to be the case based on the evidence presented.

Consequently, the court found that the applicant did not have knowledge of the material facts of a decisive character until after the limitation period had expired. The court concluded that the applicant had a prima facie right of action against the respondent and granted the application to extend the limitation period. The court ordered that the limitation period be extended until 30 November 2023 and scheduled a further hearing to determine the form of the orders and the costs associated with the application.

Orders

Orders of the court

1. That the period of limitation be extended until 30 November 2023

2. I shall hear the parties as to the form of the orders and as to costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Rodgers v Chinsee [2024] QDC 55
PARTIES:	CASSANN RODGERS (applicant) v IAN CHINSEE (respondent)
FILE NO:	BD 3276/23
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	22 April 2024
DELIVERED AT:	Brisbane
HEARING DATE:	19 March 2024
JUDGE:	Rosengren DCJ
ORDERS:	1. That the period of limitation be extended until 30 November 2023 2. I shall hear the parties as to the form of the orders and as to costs
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where the applicant commenced proceedings for medical negligence claiming damages for personal injuries associated with breast augmentation surgery – where the limitation period for any claim against the respondent has expired – whether a material fact of a decisive character was not within the means of knowledge of the applicant – whether there is a prima facie right of action against the respondent apart from the limitation issue Limitation of Actions Act 1974 (Qld) s 30, s 31 Personal Injuries Proceedings Act 2002 (Qld) s 9A, s 43 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Dick v University of Queensland [2000] 2 Qd R 476 Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 Greenhalgh v Bacas Training Ltd [2007] QCA 327 Healy v Femdale [1993] QCA 210 HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2021] QSC 240 Moriaty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 State of Queensland v Stephenson (2006) 226 CLR 197 Watters v Queensland Rail [2001] 1 Qd R 448
COUNSEL:	D Steiner for the applicant D Schneidewin and B Stringer for the respondent
SOLICITORS:	Cranston McEachern Lawyers for the applicant Kalantzis Lawyers for the respondent