Whittaker v Commonwealth of Australia and State of Qld
[2001] QSC 79
•23 March 2001
SUPREME COURT OF QUEENSLAND
CITATION: Whittaker v Commonwealth of Australia & State of Qld [2001] QSC 079 PARTIES: JOHN ALBERT WHITTAKER
(plaintiff)
v
COMMONWEALTH OF AUSTRALIA
(first defendant)
and
ROSS McKECHNIE RURAL TRAINING PTY LTD
ACN 062 190 738
(second defendant)
and
DONALD ROSE and JEANETTE ROSE
(third defendants)JOHN ALBERT WHITTAKER
(applicant)
v
STATE OF QUEENSLAND
(respondent)FILE NOS: 3789 of 1998
1617 of 2001DIVISION: Trial Division DELIVERED ON: 23 March 2001 DELIVERED AT: Brisbane HEARING DATE: 6 March 2001 JUDGE: Mackenzie J ORDER: 1. The application in 1617 of 2001 is dismissed with costs to be assessed.
2. The application in 3789 of 1998 is dismissed with costs to be assessed.CATCHWORDS: LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS AND PROCEEDINGS GENERALLY – PERSONAL INJURY CASES – applicant was injured whilst undergoing a jackeroo training course operated by the second defendant under the auspices of the first defendant and held on the property of the third defendant – application for an order pursuant to s31 of the Limitation of Actions Act 1974 that the period of limitation be extended – if leave is given under s31 Limitation of Actions Act 1974 then a further application that the State of Queensland be joined in the proceedings already commenced – alternatively if the first application fails then a further application under r69 UCPR to join the State of Queensland in the proceedings.
Limitation of Actions Act 1974 (Qld) s30(1), s30(2), s31, s31(2)
Uniform Civil Procedure Rules r69
Castlemaine Perkins Limited v McPhee [1979] Qd R 469
De Innocentis v BCC & Anor [1999] QCA 404
Fyles v Clark [2000] QCA 28, 14 February 2000
Grotherr v Marine Timbers Pty Ltd [1991] 2 Qd R 128
Lynch v Kedell (No 2) [1990] 1 Qd R 10
Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 479
Jerome v Hill [2000] QSC 21COUNSEL: M Eliadis for applicant
R Perry for respondent
T Walsh, solicitor, for second defendant
D Best, solicitor, for third defendantSOLICITORS: Tavoularis & Company Lawyers for the applicant
Hunt & Hunt for respondent
Allen Allen & Hemsley for second defendant
Carter Newell Lawyers for third defendant
MACKENZIE J: There are two applications. The first is for an order pursuant to s31 of the Limitation of Actions Act 1974 that the period of limitation for the plaintiff's action against the State of Queensland for damages for personal injuries for negligence be extended so that it expires at the end of 1 year from 3 August 2000. The second is that in the event that such leave is given the State of Queensland be joined as defendant in proceedings already commenced in the Supreme Court of Queensland in action 3789 of 1998 against the Commonwealth of Australia (first defendant), Ross McKechnie Rural Training Pty Ltd (second defendant) and Donald Keith Rice and Jeanette Maree Rice (third defendants). It is uncontroversial that the second relief should follow if the former is granted. However, there is also an application under r69 UCPR to join the State of Queensland in this proceeding in the event that the application under s31 fails.
The applicant was born on 10 December 1978. On 27 April 1995 he was undergoing a jackeroo training course with the second defendant, under the auspices of the Commonwealth Employment Service and the Department of Employment, Education and Training in respect of whose alleged negligence the Commonwealth of Australia is defendant, on a property operated by the third defendants. Because of the plaintiff's age at the time of the accident the limitation period extended until 10 December 1999.
The applicant sustained an open grade 2 fracture of the mid-shaft of the right tibia and fibula in a horse riding accident. He was admitted to the Ipswich Hospital on 27 April 1995 and underwent surgery on that day. Unfortunately there were complications and he suffered an amputation of the right leg below the knee on 1 May 1995.
In May 1995 when he was 16, he instructed a firm of solicitors in Ipswich to act on his behalf in respect of his claim for injuries suffered in the accident. The solicitors examined the procedures adopted by the Ipswich General Hospital, met with the Chief Executive Officer and Director of the Hospital and formed the opinion that none of the procedures adopted by the hospital were responsible for the final outcome of the injury. They concluded that the infection that had set in was a rare disease associated with horses and horse manure and that it had been contracted at the time of the injury. That advice was conveyed to the applicant.
On 15 September 1999 the applicant's present solicitors had him examined by Dr David Morgan, an orthopaedic surgeon. In his report, under the heading "Causal Relationship" Dr Morgan said the following:
"He was taken by ambulance to the Ipswich General Hospital and underwent a radiographic examination. At some later time (the exact elapsed time is uncertain) he was taken to the operating theatre for a formal compound scrub and wound debridement. The wound was closed primarily. Thereafter his course was complicated by increasing pain, associated muscle death and infection with a Clostridial organism.
This organism is responsible for so-called gas gangrene and would have contributed to the myonecrosis or muscle death noted at the time of his second operative procedure. Given the history of extreme pain on the second night of his hospitalisation, it is also possible that he suffered with a compartment syndrome. This relates to a reduction in the adequate perfusion of the musculature of the lower limb further resulting in irreversible muscle death.
This sequence of events resulted in his lower limb being nonsalvageable. He was subjected to a below knee amputation. The stump has since healed and he has been fitted with an adequate patellar tendon bearing prosthesis. There is a direct causal link between his current circumstances and the subject accident."
Although Dr Morgan was aware of and commented on the course of events following the applicant's admission to hospital, he did not suggest that there was negligence on the part of the hospital. Nor was he asked to consider that issue either before or after his opinion was given.
The next relevant event was that solicitors for the third defendant provided copies of the medical documents from the Ipswich General Hospital to Dr Bruce Martin, an orthopaedic surgeon, with a request that he review them and provide a report "as to the requirement for amputation with due regard to steps which were taken at the Ipswich General Hospital in the management of the injury". The effect of his opinion was that the injury was not treated according to established principles and that there was delay in recognition of signs which suggested muscle ischaemia from compartment syndrome. That condition and the presence of Clostridial organisms led to gas gangrene with rapid onset of life threatening toxicity and irreparable damage to the limb through muscle loss. He concluded by saying that correct management of compound fractures depends on an assessment of the severity of the injury with particular attention to the condition of the soft tissues. He believed that appropriate assessment and treatment of the injury in accordance with accepted principles would not have resulted in the outcome which ensued.
When that opinion came to the attention of the plaintiff's solicitors in early August 2000 the issue of joinder of the hospital as a third party was raised with the third defendants' solicitors but remained unresolved at the time of the present applications.
The jurisdiction upon which this aspect of the application is based arises from Limitation of Actions Act s31(2) which is as follows:
"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."
Also relevant are ss30(1)(b) and (c) and s30(2). They are as follows s30(1):
"(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."
Jurisdiction to extend the limitation period is enlivened if it appears to the court that a material fact of a decisive character was not within the means of knowledge of the applicant prior to the commencement of the year preceding expiration of the limitation period and there is evidence to establish the right apart from a defence founded upon the expiration of the limitation period. There is no dispute as to the second of these requirements.
Occurrence of negligent treatment at the hospital is a material fact of a decisive character within the meaning of s30(1)(b). Because of the focus on the question whether a material fact was within the plaintiff's means of knowledge the definition in s30(1)(c) must be analysed. The occurrence of the alleged negligence was not actually known to the plaintiff at the material time. The critical question is whether he had taken all reasonable steps to find out the fact before the crucial time.
But for the additional factor in the present case that solicitors had changed, the case is somewhat similar factually to Castlemaine Perkins Limited v McPhee [1979] Qd R 469. In that case a stubby of beer had exploded in the plaintiff's hand on 21 October 1974. Solicitors were engaged and the obtaining of an opinion whether the bottle was defectively manufactured was arranged in a timely way. That opinion was negative. It was given in June 1976 but did not come to the plaintiff's personal knowledge until November 1977, after the limitation period had expired.
In 1978 a further expert's opinion was given to the effect that the bottle was defective. Connolly J said, at 472:
"... for the discretion to arise the respondent had to show, amongst other things, that until March 1978 he did not know that there was evidence of a manufacturing defect and that so far as that fact was capable of being ascertained by him he had before that date taken all reasonable steps to ascertain the fact."
He also adopted Lucus J's approach at first instance on the question whether the plaintiff had taken all reasonable steps to ascertain the fact, namely that the test was an objective one to be applied to a person in the position of the plaintiff with his background and understanding. A similar test was applied by McPherson and Thomas JJ in Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 479.
On behalf of the respondent it was submitted that leave should not be given. It was submitted that the plaintiff's former solicitors had concluded, after reviewing the hospital records and making inquiries of senior personnel at the hospital, that the hospital had not been negligent. It was submitted that it had not been asserted that anything had been concealed from those solicitors. It was submitted that subsequent solicitors did not take any steps to review that conclusion before the limitation period expired. It was submitted that the reasons why they did not do so had not been explained in the material before the court, although that omission does not seem to me directly relevant for present purposes.
It was submitted that the position could be summarised as being that the plaintiff and his legal advisers had:
· adverted to the prospect of the hospital being responsible for his injuries;
· obtained the relevant files and interviewed staff;
· concluded that no claims should be made.
The case is very unusual. The possible basis of liability rests not on any opinion obtained by the plaintiff, but on an opinion elicited by one of the existing defendants after the limitation period had expired. Furthermore, when the current solicitors, within the limitation period, sought an opinion from an appropriately qualified doctor, he was not asked to give an opinion as to the possibility of liability on the part of the hospital.
One of the puzzling features of the conduct of the action is that it appears that at no time have any of the plaintiffs' solicitors sought advice from an independent medical practitioner as to the possibility of negligence on the part of the hospital. It appears that they were content to rely on the conclusion of the first solicitors based on the word of those associated with the hospital and their perusal of the notes. If that construction is incorrect there is no evidence that it is.
The plaintiff was at all times fully in possession of the relevant information from the hospital records and the matter was proceeding on the basis that the hospital was not liable for what happened. It was plainly an issue which could have been reopened within the limitation period had anyone chosen to do so. Even allowing for the fact that a plaintiff may trust his legal advisers implicitly, it is very obvious that such a reconsideration could have been raised by the plaintiff within the limitation period by simply asking the solicitors acting for him from time to time about obtaining a second opinion which was independent of the hospital. While the evidence suggests that the applicant may not be sophisticated, there is nothing that suggests that it was beyond his capabilities to have done at least that.
The respondent submitted that Fyles v Clark [2000] QCA 28 is authority for the proposition that obtaining contrary medical opinion, based on some of the same information, does not satisfy the requirements of the Limitations of Actions Act.
The proposition in that form is too widely stated. That case was one where a plaintiff who had an ongoing doctor-patient relationship and other contact with the doctor who eventually gave the opinion supporting negligence, did not ask for an opinion for almost 5 years. He had demonstrated that he was "apparently interested in the question of blame or responsibility" from what he had said to other specialists. The decision in my view principally rested on the conclusion that he had not taken all reasonable steps to find out the material fact in a timely way.
For the reasons set out above the conclusion to be drawn is that the plaintiff cannot satisfy s30(1)(b)(ii). In my view, it is not established that the material fact of a decisive character relied on was not within the means of knowledge of the applicant. The application based on the Limitation of Actions Act fails.
It remains to consider the application based on r69 UCPR. It seeks that the State of Queensland be joined as a defendant and that the applicant plaintiff have leave to amend the claim and statement of claim accordingly. The application appears to be based on r69(1)(b)(ii) primarily. It is submitted that notwithstanding the expiry of the limitation period it is just to include the State of Queensland as a defendant. Rule 69(2) says that the court must not include a party after the end of the limitation period unless one of the categories set out in the sub-rule applies. None of the specific categories apply so if the rule is to apply it must fall under r69(2)(g) which covers the situation where "for another reason the court considers it just to include the party after the end of the limitation period".
The approach I adopt in regard to r69 is that which I explained as follows in Jerome v Hill, [2000] QSC 21:
"In referring in r69(2)(g) to the concept of the court considering it to be just to include a party after the end of the limitation period, the Uniform Civil Procedure Rules appear to have modified the interpretation of its predecessor, O3 r11, that 'peculiar' or 'special' circumstances be established as a prerequisite to joinder out of time (Lynch v Kedell (No 2) [1990] 1 Qd R 10; Grotherr v Marine Timbers Pty Ltd [1991] 2 Qd R 128).
Under the present rule a judgment must still be made as to what is just in the circumstances of the individual case, but the discretion under r69(2)(g) is not as constrained as it formerly was. It is open to question whether such relaxation is philosophically sound since it increases the tension with the principle that the operation of a statutory limitation period ought not to be lightly dispensed with. But the rule must be applied according to its tenor. This view appears consistent with that of Pincus JA in De Innocentis v BCC & Anor (1999) QCA 404."
Factually, however, Jerome and De Innocentis are somewhat removed from the present case.
It was submitted that it was just to do so for the following reasons:
(a)the proposed defendant was aware of the possibility of a claim a very short time after the applicant's leg was amputated;
(b)the proposed defendants' officers met with the applicant's solicitors a short time after the amputation and (by inference) persuaded the applicant's legal representatives that it was in no way responsible for the final outcome of the injury, that is to say the amputation;
(c) the proposed defendants' records relating to the plaintiff's admission and treatment are in tact and detailed;
(d)the case put forward by Dr Martin will not fall to be decided on the credit of witnesses.
It was submitted that the overall justice of the plaintiff being permitted to prosecute a claim against a party who may have been responsible for the injury outweighed the entitlement of the proposed defendant to rely on the expiry of the limitation period in all the circumstances.
As previously mentioned no independent medical opinion was obtained by any of the plaintiff's legal representatives. To the extent that it may be said that the original legal representatives were "persuaded" that there was not negligence in the applicant's treatment, there is nothing to suggest that they were misled in any way or that the views then expressed on behalf of the hospital were not genuinely held.
It is true that the defendant was aware that solicitors were making inquiries about the course of treatment at the hospital at an early stage and that the records were intact. It is also the case that Dr Martin's opinion relies on interpretation of the notes. However, almost 6 years have now passed since the action commenced and if it is correct to say that the proposed defendant was aware of the possibility of a claim at an early stage it is not clear to me that the proposed defendant will not now be prejudiced by the lapse of time.
A large number of persons were concerned in the management of the plaintiff and there is no reason to suppose that if Dr Martin's interpretation of what was done were to be challenged, those who may provide vital expansion on the events referred to in the notes would be readily available or if so, they would be able to remember necessary detail given the lapse of time. The case is one where there is alleged to be something of the nature of a failure of the system rather than identifiable negligence of an individual. In that sense it may be questioned whether it is correct to assume that Dr Martin's case might not be affected by matters where the credit of witnesses is a factor.
The justice of a case involves balancing respective rights. It is true that there is some risk that if the third defendants were found to be negligent they may succeed in limiting the extent of their liability by proving that a new causative event intervened between their negligence and the serious consequences to the applicant. In that event however, the applicant would not necessarily be without a remedy arising from the conduct of his case. No doubt it would involve some inconvenience to have to resolve the matter that way but that does not in my view automatically equate it to a case where it is desirable, just and convenient to join the proposed defendant where events have followed the course that they have followed in this case. Weighing up all the circumstances, I am not satisfied that the applicant has made a persuasive case that it is proper to exercise the discretion arising from r69(1)(b).
This application is also dismissed. The orders that I make are as follows:
1. The application in 1617 of 2001 is dismissed with costs to be assessed.
2. The application in 3789 of 1998 is dismissed with costs to be assessed.
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