Walker v Tucker

Case [2019] QSC 141

SUPREME COURT OF QUEENSLAND

CITATION:

Walker v Tucker [2019] QSC 141

PARTIES:

STEVEN FRANCIS WALKER

(Applicant)

v

CLIVE TUCKER
(Respondent)

FILE NO/S:

BS No 7658 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2018; further submissions received 13 December 2018 and 17 December 2018

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1. The period of limitation for the applicant’s claim for damages for personal injuries against the respondent be extended until 3 August 2018, pursuant to section 31(2) of the Limitation of Actions Act 1974 (Qld).

2.   The matter be relisted for the parties to make submissions as to any further directions that may be required in relation to the determination of the remaining orders sought in the application filed 7 September 2018, including costs, at a time to be agreed with the parties.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where the applicant presented at the respondent’s clinic with symptoms including back pain and paraesthesia of both legs – where the applicant was referred by the respondent for a CT scan revealing a soft tissue density on the applicant’s spine – where it is a point of contention whether the respondent told the applicant to go to the Princess Alexandra Hospital emergency department – where the respondent provided the applicant with a written referral to the Princess Alexandra Hospital emergency department – where the respondent did not call an ambulance to transport the applicant to the Princess Alexandra Hospital – where the applicant took private transport from the clinic to his home in Ipswich and then to the Ipswich Hospital before being transferred by ambulance to the Princess Alexandra Hospital where he underwent an MRI and subsequently surgery – where the applicant suffered spinal injuries – where the relevant limitation period in respect of an action against the respondent expired on or about 11 October 2016 – where a Dr Lynch on the instructions of the applicant’s solicitors provided a report as to the respondent’s treatment of the applicant in October 2014 opining that the respondent had acted to the standard of a reasonable and prudent general practitioner – where after receiving instructions from the applicant further to those with which he had previously been provided Dr Lynch provided a changed opinion that the respondent had not acted to that standard in not calling an ambulance for the applicant on 18 July 2017 – where the applicant became aware of the changed opinion of Dr Lynch on 3 August 2017 – where the applicant issued proceedings against the respondent on 18 July 2018 – whether the changed opinion of Dr Lynch constitutes a material fact of a decisive character such that the applicant’s prospects of success justified bringing an action against the respondent

LIMITATION OF ACTIONS –…

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AGLC
Walker v Tucker [2019] QSC 141
Case
[2019] QSC 141
Decision Date

CaseChat Overview and Summary

The matter before the Court involved an application by Mr Walker for an extension of time in which to bring a claim against Dr Tucker for damages for personal injuries. The key issues for determination were whether the changed opinion of Dr Lynch constituted a material fact of a decisive character such that Mr Walker's prospects of success justified bringing an action against Dr Tucker, and whether the material fact of the changed opinion of Dr Lynch was not within Mr Walker's means of knowledge prior to 18 July 2017. The Court also considered whether there was evidence to establish a right of action against Dr Tucker and whether the principles upon which the discretion should be exercised favoured an extension of time.

The Court found that the changed opinion of Dr Lynch could constitute a material fact relating to a right of action against Dr Tucker. Although Dr Tucker argued that the changed opinion was inadmissible, the Court found that the reports were not inadmissible. The Court found that there was sufficient reasoning in Dr Lynch's report based on medical expertise to explain the changed opinion, even if it may be regarded as tenuous. The Court also found that there was evidence to establish a right of action against Dr Tucker. The Court considered the principles upon which the discretion should be exercised and found that a fair trial of the matter could be conducted. The Court also found that the preconditions in s 31(2) of the Limitation of Actions Act 1974 (Qld) had been satisfied.

Accordingly, the Court granted the application for an extension of time and ordered that the period of limitation for Mr Walker's claim for damages for personal injuries against Dr Tucker be extended until 3 August 2018. The matter was relisted for the parties to make submissions as to any further directions that may be required in relation to the determination of the remaining orders sought in the application filed 7 September 2018, including costs, at a time to be agreed with the parties.

Orders

Orders of the court

The order of the Court is that:

1. The period of limitation for the applicant’s claim for damages for personal injuries against the respondent be extended until 3 August 2018, pursuant to section 31(2) of the Limitation of Actions Act 1974 (Qld).

2. The matter be relisted for the parties to make submissions as to any further directions that may be required in relation to the determination of the remaining orders sought in the application filed 7 September 2018, including costs, at a time to be agreed with the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In determining whether a material fact of a decisive character was not within the means of knowledge of a person at a particular time, the person must not have then known the fact, and so far as the fact was able to be found out by the person, the person must have taken all reasonable steps to find that fact out. Whether the steps taken are reasonable must be judged from the position of the person themselves. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably expected from the actual person in the circumstances of the applicant.[9] The test is one which has both subjective and objective elements.[10] In Pizer v Ansett Australia Ltd,[11] which was referred to by Keane JA with approval in HWC v The Corporation of the Synod of the Diocese of Brisbane,[12] Thomas JA referred to earlier observations of the Court in Healy v Femdale Pty Ltd[13] as follows:“The question whether such a person has taken all reasonable steps to ascertain the nature and extent of the injury‘… depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability of effect upon her working capacity’.There is no requirement, actual or notional, to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so. The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had.”[9] NF v State of Queensland [2005] QCA 110.[10] Carlowe v Frigmobile Pty Ltd [1999] QCA 527 at [39] per Thomas JA and Atkinson J.[11] [1998] QCA 298.[12] [2009] QCA 168 at [44]. [13] [1993] QCA 210 at [18].The evidence of Mr Walker Ms Jarman has acted on behalf of Mr Walker since February 2014. She set out the history of the medical reports obtained. In particular:(a)Professor Dan, a neurologist, provided a report on 21 October 2014 stating that, amongst other things, Mr Walker’s paraplegia may have been avoided if treatment had been given between 7 and 8pm on 11 October 2013;(b)Dr Lynch in his report of 29 October 2014 expressed the opinion that the GP to whom Mr Walker had presented on 10 October 2013, Dr Mogg, had failed to act as a reasonably competent GP in her consultation with him or in her examination and subsequent treatment of him. However, he found that Dr Tucker’s consultation was of the standard of a reasonable and prudent general practitioner and his management was appropriate. On 17 October 2014 in a telephone conversation, Dr Lynch expressed the view to Ms Harman that he did not think Dr Tucker ought to have called an ambulance and had acted appropriately in the circumstances;(c)Associate Professor Raftos provided a report on 10 November 2014 in relation to the treatment of Mr Walker at the Ipswich Hospital, which he considered was deficient in a number of respects. In particular, he considered that Mr Walker should have been assessed and transferred by ambulance to the PA Hospital, which had a neurosurgical facility, by 15.30 at the latest; and(d)Dr Downes-Brydon in a report dated 10 February 2017, while providing an opinion as to Dr Mogg’s treatment of Mr Walker, stated that it would have been interesting to consider what the management would have been by Dr Tucker if he had not had access to onsite imaging. She further stated that a patient presenting with progressive back pain and sudden onset of neurological symptoms and signs is a situation of medical emergency which could justify immediate emergency ambulance transfer to a hospital with appropriate facilities to deal with neurological presentations. Her report, however, was confined to providing opinions on whether Dr Mogg, the GP who had previously seen Mr Walker, had acted to the standard reasonably expected from a competent GP.

Decision

Reasons for decision

Dr Tucker has provided evidence showing he has a strong defence to the proposed claim against him by Mr Walker. That supports the fact a fair trial can be conducted. The evidence provided on behalf of Mr Walker, while it has weaknesses as identified above, is not such as to satisfy me that a fair trial cannot be conducted and that the Court’s discretion should be exercised against granting the extension. The fact that a case as presented in an application such as the present is a weak one has some relevance to the exercise of the discretion, but it must be borne in mind that the authorities with respect to s 31 of the Act do not require that a plaintiff present all evidence that they would present at trial or even present the evidence in an admissible form.[73] I am satisfied that the applicant has shown that there can be a fair trial.[73] Notwithstanding that the PIPA now requires onerous pre-proceedings processes to be carried out: Kovacic v Local Government WorkCare [2013] QSC 256. It is not in my view a matter that should weigh against a plaintiff if those processes have not been carried out prior to the making of an application under s 31 of the Act.Conclusion I am satisfied that the preconditions in s 31(2) have been satisfied. I am further satisfied that the applicant has established that a fair trial can occur and that the Court’s discretion should be exercised in favour of the application. Accordingly, I will make the order to extend time under s 31(2) of the Limitation of Actions Act 1974 (Qld).Order I order that the period of limitation for the applicant’s claim for damages for personal injuries against the respondent be extended until 3 August 2018, pursuant to section 31(2) of the Limitations of Actions Act 1974. I will relist the matter for the parties to make submissions as to any further directions that may be required in relation to the determination of the remaining orders sought in the application filed 7 September 2018, including costs, at a time to be agreed with the parties.

Ratio Decidendi

Legal Principle Established

Mr Walker submits that while Dr Downes–Brydon had raised whether Dr Tucker should have called an ambulance, she had clarified in a conversation with Ms Jarman that the argument would be difficult to sustain if he had his own means of transport. In those circumstances, Mr Walker contends that no reasonable person in his position would have taken further steps to discover the material fact, given Dr Lynch’s opinion at that time was that there was no breach of the relevant standard by Dr Tucker, and Dr Downes-Brydon’s tentative opinion did not raise a reasonable prospect of success, which was supported by Ms Jarman in her discussions with Mr Walker.Consideration Section 30(1)(a)(i) defines a material fact relating to a right of action as including the fact of the occurrence of negligence on which the right of action is founded. Dr Lynch’s report of 19 July 2017 opining that Dr Tucker had been negligent could constitute a material fact relating to a right of action against Dr Tucker. In Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd,[15] McMurdo J considered that an opinion, given in that case by a medical specialist, was a material fact relating to a right of action.[15] [2006] QCA 112 at [44]. Dr Tucker, however, contends that the changed opinion of Dr Lynch is inadmissible and there is no material fact upon which Mr Walker can rely. I do not consider that it has been established for the purpose of this application that Dr Lynch’s opinions of 2017 and 2018 are inadmissible and therefore that there is no evidence of the material fact. While criticisms of Dr Lynch’s change in opinion may be fairly made by Dr Tucker, I do not consider the reports are inadmissible.[16] There is some support for Dr Lynch’s changed opinion[17] in the evidence of Mr Walker, albeit not described in the same terms as Dr Lynch. Mr Walker stated he was in a lot of pain when he saw Dr Tucker and he went into a state of shock and did not fully comprehend what was said to him. The submission of Dr Tucker that there was no evidence that Mr Walker was not taking advice from Dr Tucker is not borne out, given that Mr Walker was getting advice from Dr Tucker as to his condition and how it was to be addressed. It is open to reasonably infer from the factual circumstances of the consultation and further steps to be taken, that advice would extend to the management of getting treatment. There is sufficient reasoning in the report based on medical expertise to explain the changed opinion even if it may be regarded as tenuous. As to the swearing of the issue of negligence by Dr Lynch, that is of course a matter for the Court and would be a matter of no weight.[16] The defendant’s objections based on Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [64]–[86].[17] Objection 5. As to Dr Lynch’s report of 29 May 2018,[18] I do not find the report is inadmissible. The absence of a fever does not necessarily mean of itself that Mr Walker was not seriously ill, which is a matter upon which Dr Lynch’s opinion relied. There are clearly facts from which one may infer he was an unwell man and potentially seriously ill, given he was presenting with paraesthesia of both legs and back pain. Those matters will be the subject of no doubt considerable cross-examination at trial to determine whether the difference in terminology is a matter of semantics or substance, and whether Mr Walker could properly be described as having presented as being seriously ill or in a state of shock which affected his level of comprehension, in order to determine whether the opinion is supported by a proper factual basis. Dr Lynch’s opinion is not devoid of any factual support from Mr Walker’s evidence so as to render it inadmissible. Similarly, while Dr Lynch’s chain of reasoning as to why his opinion has changed may on its face be regarded as questionable in terms of what Dr Tucker should have done, it is not so devoid of reasoning as to render it inadmissible. The question of weight that may attach to his opinions at trial is a different matter or hopeless.[18] Objection 6.