Spencer v Saxby - [1999] QSC 120

IN THE SUPREME COURT
OF QUEENSLAND
Writ No. 4792 of 1998
Before the Hon. Mr Justice Muir
[Spencer v Saxby & Anor]
BETWEEN:

TROY LESLIE SPENCER
Plaintiff

AND:

DR TERENCE SHANE SAXBY
First Defendant

AND:

THE CORPORATION OF THE TRUSTEES OF THE ORDER
  OF THE SISTERS OF MERCY IN QUEENSLAND
  (MATER MISERICORDIAE ADULT HOSPITAL)
  Second Defendant
REASONS FOR JUDGMENT - MUIR J.
Judgment delivered 4 June 1999

The applicant is the plaintiff in Action 4792 of 1998 commenced on 28 May 1998. The first defendant is a specialist medical practitioner and the second defendant is the Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland (Mater Misericordiae Adult Hospital). In a draft statement of claim exhibited to an affidavit filed in support of the application now before me the applicant alleges -
athe first defendant was negligent in failing to exercise reasonable care, skill and diligence in the performance of an operation on the applicant’s left ankle on 14 September 1994 (“the operation”);
bthe first defendant failed to advise the plaintiff as to the nature and extent of the risk associated with the operation and, in particular, the risk of failure of the surgery and the likely pain that might ensue as a result of failure;
cthe first defendant failed to “revise the surgery” when it became apparent that the operation had failed to meet its objectives.
It is alleged against the second defendant that -
·it failed to properly apply plaster to the applicant’s ankle which omission led to infection.
As a consequence of the “surgery” the applicant had his left leg amputated below the knee on 15 July 1997.
The relief sought in this application is to extend the applicable limitation period to 15 July 1998.
The draft pleading is deficient in a number of critical respects. For instance, it contains no allegations as to the course the applicant would have taken had the applicant been given the advice which he alleges was not provided. Miss Skennar, who appeared for the applicant, based her case entirely on the alleged failure to advise. She was obliged to take that course because there is otherwise no credible evidence of a breach of duty on the part of the first defendant. There is also no credible evidence of breach of duty resulting in material damage in relation to the second defendant. The applicant, over objection on behalf of the respondent, gave brief oral evidence to the effect that -
ahe was not warned of the possibility of a risk of failure of the operation and of a consequential future need of amputation;
bif he had been warned of such risk he would not have had the operation;
che would not have had his leg amputated had he been advised by the first defendant at the outset that that was the most appropriate procedure to be followed.
dhe was advised that the operation would relieve his pain but, apart from that, received no advice prior to the operation.
ehe had bearable pain before the operation and unbearable pain afterwards.
The material fact of a decisive character relied on by Miss Skennar was the fact of the amputation. She submitted that the applicant was only in a position of knowing about it when it actually happened. Part of the submission was to the effect that up until the time of the operation the applicant could always elect not to have it in which case his damages would be different in kind and extent to the damages which would arise after amputation.
The statutory framework
Section 31(2) of the Limitation of Actions Act (“the Act”) provides:
“(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 one 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.”
A right of action in negligence is a right of action to which s.31 applies: see subs. (1).
Section 30 defines “material facts” inclusively as follows:
“(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;
(ii)the identity of the person against whom the right of action lies;
(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv)the nature and extent of the personal injury so caused; and
(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.”
Whether a material fact is of a decisive character for the purpose of s.31(2) is defined in s.30 in the following terms:
“(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.”
Whether a fact is within the means of knowledge of a person for the purpose of that subsection is defined negatively in s.30 in the following terms:
“(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.”
In Byers v. Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, Lee J, with whom McPherson and de Jersey JJ agreed, cited 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 or 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.
Those expressions of principle make it plain that the applicant cannot succeed. The affidavit material shows that the applicant, at a time well prior to twelve months before the date of the writ, knew that the operation was a failure and that it would need to be corrected by an amputation, if it was to be corrected at all. The evidence also discloses that he had decided to have the operation before April 1997. He was then, necessarily, aware of the advice or lack thereof received by him prior to his operation in September 1994. Consequently, at this time, the applicant knew or would have known, with the benefit of appropriate advice, that he had a worthwhile action to pursue and should in his own interests pursue it. The amputation itself merely served to crystallize the nature and extent of the applicant’s injuries. After 28 May 1997 there was no change from a situation in which there was no appreciation (deemed or actual) of the existence of a worthwhile cause of action to one in which there was such an appreciation.
I was informed by Miss Skennar that, in the view of the applicant’s legal advisers, the applicant’s cause of action did not arise until the applicant had the amputation and thereby suffered loss and damage. The application then, was brought out of an abundance of caution.
I have proceeded on the assumption that the applicant’s cause of action arose prior to the amputation. If the cause of action did not arise until the time of the amputation, no extension of time is required.
I order that the application be dismissed and that the applicant pay the respondents’ costs of and incidental to the application to be taxed.
IN THE SUPREME COURT
OF QUEENSLAND
  Writ No. 4792 of 1998
Before the Hon. Mr Justice Muir
[Spencer v Saxby & Anor]
BETWEEN:
TROY LESLIE SPENCER
  Plaintiff
AND:
DR TERENCE SHANE SAXBY
  First Defendant
AND:
THE CORPORATION OF THE TRUSTEES OF THE ORDER
  OF THE SISTERS OF MERCY IN QUEENSLAND
  (MATER MISERICORDIAE ADULT HOSPITAL)
  Second Defendant
REASONS FOR JUDGMENT - MUIR J.
Judgment delivered 4 June 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.
Counsel:  Miss Skennar for the plaintiff
Mr Flint for the defendants
Solicitors:  Janssen Mitchell for the plaintiff
Dunhill Madden Butler for the defendant
Hearing date:               5 March 1999