Wood v Glaxo Australia Pty Ltd
[1993] QCA 114
•30/03/1993
IN THE COURT OF APPEAL
[1993] QCA 114
SUPREME COURT OF QUEENSLAND
C.A. No. 37 of 1992
Brisbane
Before The Chief Justice Mr Justice Davies Mr Justice Ambrose
BETWEEN:
MARY ELLEN WOOD
(Plaintiff) Appellant
- and -
GLAXO AUSTRALIA PTY LTD
(Defendant) Respondent
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered on 30/03/93.
A substantial outline of the facts and issues with which this appeal is concerned is contained in the reasons which have been prepared by Davies J.A. and Ambrose J. The judge below has also given detailed attention to the evidence. Nothing will be gained by unnecessary repetition. I have concluded that the appeal should be allowed and time extended and I shall attempt to give a sufficient statement of my reasons.
A number of years have now passed since the relevant legislation, the Limitation of Actions Act 1974, and similar legislation in other jurisdictions has been enacted and a body of decisions exists helpfully explaining one or other aspect of it. It is the application of the expounded principles to the particular facts of a case that often continues to present difficulty.
The appellant attributes her physical disability to the myelogram which was performed upon her in 1972 utilising, as she asserts, the oil based agent myodil containing iophendylate. She says that this caused or contributed to her condition of adhesive arachnoiditis. She does not claim to be able to sustain a case in negligence against the medical practitioner, the radiologist, who performed the procedure.
Because of the widespread acceptance of and reliance upon iophendylate by the local and overseas profession in 1972 she apparently appreciates that she would have insuperable difficulty in trying to make out any such case. She attempts to look instead to the local distributor, the respondent company, which is a member of a large worldwide group engaged in the manufacture and sale of pharmaceuticals, including myodil, and she seeks to make out a case of negligence against it.
Although many years went by between her myelogram in 1972 and the date when the writ was issued in 1990, the appellant and her advisors were in the interval far from inactive. They had a difficult case to investigate and the prospects and risks had to be weighed and assessed. They succeeded finally in gathering a good deal of material to support her claim. The question remains whether, in the circumstances which have been established and within the limits of what the legislation permits, they have shown a sufficient case justifying the making of an order for the necessary extension of the limitation period.
Any order for extension would involve the appellant's showing that it was not until after the commencement of the year immediately preceding the issue of the writ in March 1990 that she first had means of knowledge of at least one material fact of a decisive character and that, apart from the effect of the limitation period, there was evidence to establish her right of action. These are the twin requirements and effect of s. 31(2) of the Act. The judge below found in the appellant's favour on the first of these two questions and I would not be disposed to interfere with that conclusion. However, the judge determined the second question arising under s. 31(2) against the appellant. I believe that in doing so he applied too rigorous a test and I find that I am in disagreement with his conclusion on that aspect.
If a general observation is permissible at this point it can be said that applicants for extension of limitation periods are not intended by the legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action. Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge's mind of the material which the applicant presents or the existence of which he demonstrates or points to. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial. There are some resemblances in this to the situation of a defendant who resists a summary judgment application. The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time. In any situation where proof of a case is difficult and very far from straightforward, it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration.
Fundamentally, the standard required on an application for extension of time under the Act comes from the literal words of s. 31(2)(b): "evidence to establish the right of action". These words will be construed according to the evident policy of the legislation.
A number of decisions in the past have endeavoured to make clear the onus which, under the formula just quoted, the applicant for extension must discharge: Sugden v. Crawford (1989) 1 Qd.R. 683 at 686, Minoque v. Bestobel Industries Pty. Limited (1981) Qd.R. 356 at 358, Martin v. Abbott Australasia Pty. Ltd. (1981) 2 N.S.W.L.R. 430 at 443 and Dwan v. Farquhar (1988) 1 Qd.R. 234 at 239. One way in which the onus has been expressed is that the applicant must demonstrate something like a prima facie case. The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff's evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s. 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case. With respect, the judge at first instance in the present case, notwithstanding some declaration to the contrary, adopted an approach which came close to insisting that the applicant prove that she had a case which, on the probabilities, would so far as he could detect eventually succeed. A lot of the detailed consideration which the judge gave to the matter amounted to an estimate of the strength of her case at an unduly demanding level. He adopted an approach which required more than a mere prima facie case. One aspect in particular gives strength to the appellant's position. The appellant produced material from which it appeared that iophendylate had actually been banned as dangerous for use in myelograms in one European country, Sweden, as early as 1948, some twenty-four years before it was used in the appellant's myelogram in 1972. She also made it appear that after 1972 there was a considerable and, it seems fair to say, increasing body of weighty expert opinion that it was indeed dangerous for use in myelograms. In other words, putting to one side any evidence of testing and assessing programs which the respondent and its associated companies may have carried out and assuming that the case indicated by the appellant is unopposed it must be conceded that those two premises have considerable force: over the following years iophendylate was widely accepted as involving significant dangers when used in myelograms and in the preceding period, and as early as twenty-four years before, it had actually been banned in one country because of its dangers. A large pharmaceutical manufacturer and distributor owes a duty of care to the users of its products and in the circumstances may not be able to escape liability if it did not take reasonable care in testing and react appropriately to indications coming to its notice by warning, modification, restriction, withdrawal of its product or otherwise. This may become one of the questions for investigation at the trial if it proceeds. For my part I consider that it should be judged that the applicant has sufficiently indicated "evidence to establish the right of action" within s. 31(2)(b).
The further matters necessary to be established by the appellant if the Court is to have jurisdiction to extend time are those referred to in s. 31(2)(a). Here the appellant has a finding in her favour which, as I have already mentioned, I would not disturb. Some words may, however, be added in defence of it.
The case below called for an assessment to be made by the
judge after he had been provided with a good deal of material
to consider and had seen and heard critical witnesses testify.
His consideration of this aspect seems, with respect, to have
been careful and he could not be said to have adopted any
erroneous approach.
One of the questions which had to be investigated by the appellant and her advisors was a matter on which varying views were entertained by experts both in Australia and throughout the world. The causation issue in respect of iophendylate and arachnoiditis in general and the appellant's case in particular was obviously one on which, at trial, it had to be anticipated that weighty opinions from a number of sources might be contributed challenging the appellant's case and attempting to minimise any dangers involved in the use of iophendylate. It was much more difficult to plot the boundaries of a dispute of this kind than a relatively simple contest involving only a narrower consideration of issues in a more confined arena.
The appellant both sought advice and, as well, independently continued to undertake enquiries. Notwithstanding her assiduity, it is suggested that if she wanted to sue at all she should have commenced proceedings sooner and that she was not justified in terms of the statute in seeking an extension of time to support the issue of a writ as late as March 1990.
The judge at first instance has found that until the appellant received the report from Dr Boyce in March 1990 she did not have the support of evidence sufficient to establish the connection between the substance iophendylate and her condition. This was the principal matter of contention although it involved a subsidiary aspect where the judge also found in the appellant's favour. This concerned her late awareness of a related material fact, namely, that the respondent was actually the distributor of the iophendylate which had been used in the appellant's myelogram. In deciding in the appellant's favour on what I have described as the principal issue, the judge had to consider the appellant's knowledge and means of knowledge and that of her solicitors.
This called for an assessment to be made by him of the substance of what Dr Boyce was endeavouring to convey to them at relevant times and their understanding of that as well as of other matters learnt by them. Essentially, the judge's conclusion was that Dr Boyce's view of the connection between the use of iophendylate in the appellant's myelogram in 1972 and her subsequent physical condition was not, until March 1992, sufficiently stoutly held as to shut out the appellant from the possibility of obtaining an extension. The question seems to come to this: because at an earlier time the appellant had been told that administered iophendylate might have caused her condition and because she believed it was possible and entertained hopes that she would be able to bring proceedings to establish it, was there no room for a further decisive material fact to come to her knowledge or within her means of knowledge on this very issue? This question involves the need to give some attention to ss. 30 and 31.
It has been decided that for the purposes of the sections just referred to there is a distinction which must be drawn between facts and the legal consequences of facts: see e.g. Do Carmo v. Ford Excavations Pty. Ltd. 154 C.L.R. 234 at 244 and Berg v. Kruger Enterprises (1990) 2 Qd.R. 301 at 302 but in the present case no distinction of that kind seems to me to be relevant. The appellant and her advisors were well aware of the legal consequences if they could establish the connection in fact between the introduction into her body of the iophendylate and her subsequent arachnoiditis.
There is an ambiguity in the expression of concepts in ss. 30 and 31 which has been commented on before: see e.g. per Dawson J. in Do Carmo (supra) at 253. The principal difficulty for the present case in the application of the two sections seems to come from a distinction between facts and evidence of facts. In s. 30(a)(i) and (iii) the legislation uses the word "fact" when speaking of the fact of the occurrence of the negligence and the fact that negligence causes the relevant personal injury. When these concepts are scrutinised, it seems easier to say that facts of these kinds may be capable of being found by a Court or that they can be alleged by a claimant but it may be harder to think of them as "facts" known to a claimant as he goes about the task of collecting his evidence to establish them.
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: see Berg v. Kruger Enterprises (1990) 2 Qd.R. 301, Sugden v. Crawford (1989) 1 Qd.R. at 686 and Moriarty v. Sunbeam Corporation Limited (1988) 2 Qd.R. 325.
An inclusive definition of material facts is given in s. 30 but in the present case that does not seem to be productive of difficulties. As the appellant and her solicitors continued to direct efforts to putting together a case against the respondent they would have been concerned with the following issues: the causative connection, if any, between the substance introduced in the course of the myelogram and the appellant's subsequent medical condition (this would include the need to make a precise identification of that medical condition); the identification of the substance used as a product distributed by the respondent and produced for distribution by its affiliates; and the culpability, if any, of the respondent for the distribution of myodil for use in myelograms in 1972 under the conditions in which it did distribute it. Although s. 30(a)(i) and (iii) refers to certain considerations relevant in the present case as "facts" that epithet is appropriate only in the sense of ultimate facts. Considered as facts they are essentially issues for proof by a prospective plaintiff and they will be capable of proof, if at all, through the medium of the evidence which he is able to collect. The body of evidence which a plaintiff collects or, as it may be put in terms of the expressions used in s. 30, his assemblage of "material facts", will only constitute a "decisive" collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time.
I can detect no error in the approach of the judge below to the matters just discussed and can see no reason to depart from his conclusion when, having made his assessment of the evidence, he considered that the appellant had shown that she had not, in terms of the statute, delayed beyond the point where she was entitled to request an extension of time based upon her belated acquisition of knowledge and means of knowledge of decisive material facts. Accordingly, I would allow the appeal and extend time. The appellant should have an order against the respondent for her taxed costs of the appeal and of the hearing below. The proposed additional defendants that the appellant wishes to join in her action were not represented on the hearing of the appeal and it is appropriate therefore to order that the hearing of the application for their joinder should proceed before the chamber judge.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 37 of 1992
Brisbane
[Wood v. Glaxo Australia Pty Ltd]
BETWEEN:
MARY ELLEN WOOD
Appellant
- and -
GLAXO AUSTRALIA PTY LTD
Respondent
THE CHIEF JUSTICE
DAVIES J.A.AMBROSE J.
Judgment delivered 30/03/1993
SEPARATE REASONS FOR JUDGMENT OF THE CHIEF JUSTICE, DAVIES
J.A. AND AMBROSE J. THE CHIEF JUSTICE AND DAVIES J.A.
AGREEING AS TO THE ORDERS MADE. AMBROSE J. DISSENTING.
TIME FOR SERVICE OF NOTICE OF APPEAL EXTENDED TO 25 MARCH
1992.
APPEAL ALLOWED.
PERIOD OF LIMITATION EXTENDED SO AS TO EXPIRE AT THE END OF
ONE YEAR AFTER 1 APRIL 1989.
THE QUESTION OF JOINDER OF GLAXO GROUP LTD AND GLAXO
LABORATORIES LTD AS ADDITIONAL DEFENDANTS REMITTED TO THE
CHAMBER JUDGE.
RESPONDENT TO PAY APPELLANT'S TAXED COSTS OF THE APPEAL AND OF
THE HEARING BELOW.
| CATCHWORDS: | LIMITATION OF ACTIONS - appeal for extension - applicant suffered spinal condition following myelogram using substance distributed by respondent - whether existence of causal relationship a material fact of decisive character not within applicant's means of knowledge - whether sufficient evidence to establish right of action. MEDICINE - drugs and poisons - applicant alleged spinal injury caused by product of respondent used in myelogram - whether evidence that distribution of product negligent or that respondent failed to adequately warn of side effects in view of current state of medical knowledge. |
| WORDS & PHRASES - 'means of knowledge' applicant sought extension of time to sue in respect of spinal injury suffered following myelogram using substance distributed by respondent - when existence of causal relationship came within applicant's 'means of knowledge' | |
| NEGLIGENCE - manufacturer's duty - applicant alleged spinal injury caused by use of respondent's product in myelogram - whether evidence that distribution of product negligent or that respondent failed to adequately warn of side effects | |
| Counsel: | Mr K. Cullinane Q.C. with him Mr P. Cleary for the Appellant Mr R. Meldrum Q.C. with him Mr A. Lyons for the Respondent |
| Solicitors: | Messrs Walsh Halligan as t/a for MacDonnells for the Appellant Messrs Clarke & Kann as t/a for Williams Graham & Carmen for the Respondent |
| Hearing Date(s): | 1-2 September 1992 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 37 of 1992
Brisbane
Before The Chief Justice Mr Justice Davies Mr Justice Ambrose
[Wood v. Glaxo Australia Pty Ltd]
BETWEEN:
MARY ELLEN WOOD
Appellant
- and -
GLAXO AUSTRALIA PTY LTD
Respondent
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered 30/03/1993
Whether the judgment given by the learned chamber judge in this matter was final or interlocutory, the notice of appeal herein was served out of time. Judgment was given on 28 February 1992. The notice of appeal was filed on 24 March 1992 and served on the following day. Accordingly, it is necessary for us to consider an application for extension of that time before considering the appeal on the merits. There was an explanation for the delay, the respondents are not prejudiced by it, and the appeal involves a substantial dispute of some difficulty.
I would accordingly extend the time within which the notice of appeal may be served to 25 March 1992, the date on which it was in fact served.
The appeal is against two orders of the learned chamber judge.
The first is one refusing to order an extension of the period
of limitation within which an action may be instituted against
the named respondent, Glaxo Australia Pty Ltd, pursuant to s.
31 of the Limitation of Actions Act 1974 ("the Act"). The
second is against an order refusing to join, as additional
defendants, Glaxo Group Ltd and Glaxo Laboratories Ltd. They
were sought to be joined on the basis that one or other of them
was the manufacturer of myodil. There does not seem to be any
doubt, or to have been any dispute below, that if his Honour's
first order was correct then his second order was also correct.
However neither Glaxo Group Ltd nor Glaxo Laboratories Ltd was
represented before us. Nor did the appellant make any
submissions to us as to joinder of those companies outside the
limitation period.
The appellant underwent a myelogram at Cairns in July 1972. This involved the injection of an oil-based dye called iophendylate into the subarachnoid space in her spine. She alleges that this caused adhesions sometimes called adhesive arachnoiditis from which she still suffers. In 1972 iophendylate was marketed in Australia under two different trade names, myodil and pantopaque, the former by the named respondent, Glaxo Australia Pty Ltd. It seems probable on the evidence before the learned chamber judge that myodil, rather than pantopaque, was used in the myelogram performed on the appellant.
This action was instituted on 23 March 1990. It is an action in negligence, the substantial allegation being that the defendant respondent knew or ought to have known, at the time this myelogram was performed, that an injection of myodil into the subarachnoid space could cause adhesive arachnoiditis and that it therefore should not have distributed and sold it or that it failed to warn the appellant that an injection of myodil could cause adhesive arachnoiditis prior to her undergoing the myelogram. Similar allegations would have been made against the other respondents had they been joined.
Section 31(2) of 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 sub-s. (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;"
When 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 man 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 his own interests and taking his circumstances into account to bring an action on the right of action;"
When 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:-
"(d) a fact is not within the means of knowledge of a person at a particular time if but only if -
(i) he does not at that time know the fact; and
(ii) so far as the fact is capable of being ascertained by him, he has before that time taken all reasonable steps to ascertain the fact."
Because s. 31(2) allows a court, upon being satisfied as to the matters therein referred to, to extend the period of limitation only for one year after the date upon which a material fact of a decisive character relating to the right of action first came within the means of knowledge of the applicant, the appellant here had to establish that such a material fact came within her means of knowledge for the first time only on or after 23 March 1989. The appellant contended below and before this Court that there were three such facts. They were:
(i) The fact that her arachnoiditis is the consequence of the myelogram performed in or about July 1972.
(ii) The fact that the substance used in the myelogram was "myodil", the product of the respondent imported and distributed in Australia by the respondent.
(iii)The fact that at the time of the administration of the myelogram to the appellant the use of "myodil" for myelograms involved a risk of damage to the spines of those to whom it was administered and its manufacture and distribution for such use was negligent.
The learned chamber judge held that (i) was a material fact of a decisive character relating to the right of action which was not within the appellant's means of knowledge until after 23 March 1989. He found (ii) to be a fact not within the means of knowledge of the appellant until after 23 March but held that it was not of a decisive character. And he rejected the appellant's contentions with respect to (iii) because he thought that it covered the same ground as s. 31(2)(b), the appellant's argument on which he also rejected. Consequently he refused the application.
I agree with his Honour's conclusion on (i). However, I think that, pursuant to s. 31(2)(b) there was evidence that in 1972 the risk involved in the use of myodil necessitated at least a more specific warning than that which was given in the printed information supplied by the respondent with it. These conclusions are sufficient for the appellant to succeed.
However, in case this matter should go further, I shall also express my opinion on whether each of (ii) and (iii) above was a material fact of the required character.
Although, as I have said, I agree with his Honour's conclusion that (i) was a material fact of a decisive character relating to the right of action which was not within the appellant's means of knowledge until after 23 March 1989, it is necessary to explain my reasons for this conclusion at some length.
Paragraph (i) states an ultimate fact in issue; one which depends on expert opinion. Means of knowledge of that fact must be distinguished from means of knowledge of evidence of that fact though, in the end, means of knowledge of that fact will depend on the evidence, such as medical opinions, within the means of knowledge of the plaintiff. If evidence of the fact, that is the medical opinions themselves, were sufficient for this purpose, though there might be a question when that evidence came within the means of knowledge of the appellant, the critical question would usually be when that evidence within the plaintiff's means of knowledge was strong enough, when interpreted in the light of the relevant appropriate advice, to become of a decisive character within the meaning of s. 30(b)(i) and (ii). By contrast, if means of knowledge of the fact of the existence of the causative relationship is, as I think, necessary for this purpose, there can be no doubt that it is of a decisive character, the critical question being when that fact came within the means of knowledge of the appellant.
And given that means of knowledge of that fact can never be absolute, that question becomes what degree of means of knowledge is sufficient.
My conclusion that it is the fact of the existence of the causal relationship rather than evidence of that fact to which s. 31(2)(a) refers derives support not only from the terms of that provision, but also from s. 30(a)(iii), and to a lesser extent (iv) and (v). See also Field v. Field (N.S.W. Court of Appeal, 21 October 1981, unreported); the judgment of Clarke J.A. in Brunton v. D. O'Bryan & Co. Pty Ltd (N.S.W. Court of Appeal, 4 August 1988, unreported); and Ditchburn v. Seltsam (1989) 17 N.S.W.L.R. 697 at 706-7.
A more difficult question is when that fact came within the appellant's means of knowledge. Given that the existence of a causal relationship between the myelogram and the arachnoiditis could not have been known by or within the means of knowledge of the appellant in an absolute sense, as an observable fact could have been known, the question then is what is the necessary degree of satisfaction of the existence of that fact for it to have been within her means of knowledge. Questions of this kind have been addressed in this and other contexts.
Vines v. Djordjevitch (1955) 91 C.L.R. 512, for example, concerned the question of when the plaintiff knew that the identity of the motor car which caused her injuries could not be established. The court said at 522:-
"The word 'know' is used in the provision in an ordinary sense, without any intention that it should be analysed or refined upon. But of course there are gradations of knowledge or belief upon such a matter. The gradations extend from a slight inclination of
opinion to complete assurance. Here it seems to amount to an awareness or consciousness that no reasonable probability exists of ascertaining the identity of the car satisfactorily or with any certainty. Complete assurance is by no means necessary. When the plaintiff has come to think that the identity cannot be established that is enough.
If the expression 'think' must be refined upon, it may be said to mean that the steady preponderance of his opinion or belief is that it cannot be done."
In Field (supra) a case on the New South Wales analogue of the present provisions, Reynolds J.A., with whom the other members of the court agreed, applied that test to the questions whether a spinal lesion which the appellant had was caused by the accident in respect of which she sued and if so whether the pain and disability of which she complained was caused by that accident. His Honour said:-
"When the knowledge alleged depends upon the statements of others and in particular the statement of opinion of others, some test needs to be applied in order to answer the question whether it can fairly be said that he knew it because he was told it. The submission that the mere expression of an opinion that a fact exists means that the person to whom it is communicated knows that fact is untenable. It cannot rationally accommodate the case where diametrically opposed opinions are offered and accords a premium value to that opinion which is fortuitously first communicated.
It seems to me that at one end of the scale a statement may emanate from such a source and in such circumstances that the person to whom it is communicated can fairly be said to know the fact asserted in the statement. The example of the result of a search as to ownership of the motor vehicle, which I have cited earlier, would seem to fall into such a category. Similarly, I would think that an unqualified opinion by an appropriate medical specialist that there was a relationship between a physical disability and an accident could, in general, result in the plaintiff knowing that there was such a relationship. In these cases, the plaintiff knows one thing for certain, that the maker of the statement has asserted the fact but he does not, in the same sense, know the fact asserted."
See also The Broken Hill Pty Co. Ltd v. Waugh (1988) 14 N.S.W.L.R. 360 at 368-9; Ditchburn (supra) at 707, Clarke J.A. in Bailey v. Oswald (N.S.W. Court of Appeal, 25 May 1990, unreported); Davis v. Ministry of Defence [1985] T.L.R. 509; Wilkinson v. Ancliff [1986] 3 All E.R. 427; and Halford v. Brookes [1991] 1 W.L.R. 428 at 443.
A test less favourable to plaintiffs has been applied in the United States of America in the application of the "discovery rule" which is applied in federal tort actions and in many States to determine when the limitation period commences to run: that a cause of action does not accrue until the plaintiff knows or reasonably should know that he or she has suffered injury and that the defendant's conduct caused that injury.
Harrison v. United States, 708 F.2d 1023 at 1027 (5th Cir. 1983); Allen v. United States, 588 F.Supp. 247 at 344-347 (1984); Pitts v. Aerolite SPE Corp., 673 F.Supp. 1123 (D.Mass. 1987); Graves v. Church & Dwight Co. Inc., 541 A.2d 725 at 727- 8 (N.J. Super.A.D. 1988); Moll v. Abbott Laboratories, 192 Mich.App. 724 (1992).
In applying that rule in Anderson v. Garber, 160 Wis.2d 389, 446 N.W. 2d 221 at 224 (1991), the Court of Appeals of Wisconsin said that the limitation period would begin to run when the plaintiff "first received competent medical advice that her condition was probably caused by the tortfeasor's negligence".
I would apply the test stated in Vines to the resolution of this question; that is, the fact that the myelogram caused the appellant's arachnoiditis was within the means of knowledge of the appellant only when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have been that that was so. And as Reynolds J.A. pointed out in Field, that would not necessarily have been when a favourable opinion was first communicated to her particularly where, as in this case, there were for a time thereafter conflicting opinions.
In the month following the myelogram, that is in August 1972, Dr Eadie, a Brisbane neurologist, expressed the opinion that the appellant might be suffering from arachnoiditis. However he assigned no possible cause to this. The first opinion expressed that the appellant had arachnoiditis and that this was probably the result of the myelogram was expressed by Dr Boyce, a Cairns neurologist, in late 1983 or February 1984.
However in 1986 he explained or qualified this opinion by saying that the myelogram was a possible cause and possibly more than a possible cause, but that there were articles written suggesting other things that may have caused arachnoiditis in a case such as this; and that, unless you knew the exact details of the operation and that it was conducted "100% squeaky clean" you could not be sure.
In the meantime, the appellant had written to Dr Burton, an American expert, who replied in February 1985 offering to assist in any way he could and inviting the appellant's solicitor to contact him for that purpose. Dr Burton explained in his letter:-
"Please understand that the relationship between oil myelography and adhesive arachnoiditis is a very difficult one to demonstrate clearly because so many additional factors are involved."
In August 1985 Dr Yelland, a Brisbane neurologist, had expressed the view in a report to the appellant's solicitors that the appellant did not suffer from arachnoiditis but from lumbar canal stenosis. However I shall assume for the purpose of deciding this question that the existence of arachnoiditis was never in issue.
Over the next few years the appellant made extensive enquiries, both in Australia and overseas, in order to elicit evidence of the existence of a causal connection between myodil and arachnoiditis. In March and April 1988 she received communications from a Professor Jayson at the University of Manchester to the effect that research indicated myodil as one cause of the development of arachnoiditis and that the most severe types of arachnoiditis were found in patients who had previously had myelograms using an oil based material.
In April 1989 she received from Dr Burton a pre-print copy of a text written by him which stated that iophendylate was identified as being causally related to the production of arachnoiditis from the time of its introduction in the United States in 1944 and that, on the basis of animal studies in which iophendylate was identified as a causal agent for arachnoiditis, it was banned from clinical use in Sweden in 1948. She later presented this material to her solicitors.
By March 1990 Dr Boyce was prepared to say that on the balance of probabilities the most likely cause of her arachnoiditis was the myelogram either by causing the arachnoiditis or significantly contributing the exacerbation of an underlying process of arachnoiditis. He said that it was only recent research "in the last twelve months which has brought this to the forefront of medical attention" and it was this research which led him to state his belief more forcefully.
There can be no doubt as to the persistence of the appellant in her attempts to establish the necessary causation. I do not think it could be said that there are any steps which she ought reasonably to have taken which she did not. And I would conclude that, at least until she received the opinion expressed by Dr Burton in April 1989, the steady preponderance of opinion of a reasonable person in her position would not have been that her arachnoiditis was the consequence of the myelogram.
I turn now to the second and third facts which the appellant contended came within s. 31(2)(a). As to the second fact relied on, set out in paragraph (ii) above, it is true that the appellant did not know until February 1990 that it was the defendant's product which was injected into her spine. What does not appear from the evidence before the learned Chamber judge is when she could first have ascertained that fact. When she was told by Dr Boyce in 1984 that she had arachnoiditis caused by her myelogram in 1972, she also knew that the causative substance was either myodil or pantopaque; or, alternatively, she knew this by 1986 (she gave apparently inconsistent evidence of this). Her solicitor's letter to her of 22 January 1986 refers to myodil (as opposed to pantopaque) left in her spine after the myelogram. And she admitted in cross-examination that, in 1987, she was writing to the Health Department saying that pantopaque was not permitted to be supplied in 1972. There is no evidence that all reasonable steps had been taken by her after 1986, to ascertain which of myodil or pantopaque was injected into her spine, if she did not then know that fact, and who manufactured or distributed that product: s. 30(d). The very general assertions, in her affidavits of 3 July 1990 and 28 August 1990, inter alia that she "was in continuous correspondence from 1985 on in order to obtain the information" and that "she sought information over a period of time as to the likely source of the Myodil which was used in my Myelogram" do not satisfy this requirement. In the absence of such evidence the appellant failed to establish that the second numbered fact was not within her means of knowledge until on or after 23 March 1989.
The third matter which the appellant contended was a material fact of the required kind, set out in paragraph (iii) above, was that the use of myodil involved a risk of damage and, presumably, that this ought to have been known to the respondent in 1972 with the consequence that its manufacture or distribution of it was negligent. His Honour thought that this covered the same ground as that required to be established by s. 31(2)(b).
This was not correct in two respects. The first is that sub-s. (2)(a) is concerned with facts not within the means of knowledge of the appellant before 23 March 1989; whereas sub-s. (2)(b) is concerned with evidence existing at the time of the application. The second is that the statement in paragraph (iii) refers only to negligence in manufacture and distribution whereas the right of action is concerned also with failure to warn.
The only facts relevant to this ultimate question of negligence which it could be asserted should have been within the knowledge of the respondent in 1972 are those already referred to which were stated in Dr Burton's text. The appellant has shown that these facts were not within her means of knowledge prior to 23 March 1989. But they would not, in my view, have been sufficient from which to infer that the manufacture or distribution of myodil was negligent. It would need to appear also that, in 1972, there was some safer alternative or that, in the absence of a safer alternative, the risks involved did not justify its continued use. Neither of these appeared from the material before his Honour. The only alternative injection at that time appears to have been a process involving a water soluble dye which also caused the risk of arachnoiditis and, as well, a risk of other disabilities. And there was no evidence from the appellant of the perception in Australia or the United Kingdom at that time of the relative risks of the two injections or of how the risks of either compared with those of surgery which appeared to be the only other possibility. The evidence from the respondent was that iophendylate was thought to be less dangerous than water based dyes. And there was evidence, including from Dr Burton, of justification of its continued use for many years after that. I do not think that the material forwarded by the English solicitors contained any material fact not contained in Dr Burton's text.
I would therefore conclude that the appellant has shown that a material fact of a decisive character relating to the right of action was not within her means of knowledge until on or after 23 March 1989, namely that her arachnoiditis was the consequence of the myelogram in July 1972. Having so concluded, it is necessary to consider whether the appellant showed that there was evidence to establish the right of action.
In order to satisfy s. 31(2)(b) the appellant had to show that there was some evidence that in 1972 the respondent knew or ought to have known that the risk involved in the use of myodil necessitated its withdrawal from sale or a more specific warning than that which was given in the printed information supplied by the respondent with myodil. For reasons which I have already mentioned, the appellant has, I think, failed to satisfy the court that there is evidence that the risks should have resulted in its withdrawal from sale.
However, I am inclined to think that the appellant established a right of action based on the inadequacy of the warning, if that is its correct description, in the printed information which accompanied the myodil. That stated:
"Occasionally arachnoiditis has been reported but that type of reaction has not been associated with a specific disease or technique of investigation. The literature contains references to adhesions and fibrous exudate being found on operation in patients who had at some time undergone myelography with iophendylate. The sporadic nature of these reports, and sometimes the sparseness of information about the patient's condition prior to myelography, makes it difficult to evaluate the role of iophendylate.
However, these reports probably add weight to the case for removing as much myodil as possible at the time of investigation."
The appellant's counsel described this, not without justification, as a reassurance rather than a warning. Given the research which had taken place in Sweden and the banning of iophendylate from clinical use in that country in 1948, and the fact that, according to Dr Burton iophendylate was identified as being causally related to the production of arachnoiditis from the time of its introduction in the United States of America in 1944, I think that there is evidence that a warning about this or at least a statement of these facts should have been included in the printed material distributed with myodil.
I would therefore allow the appeal and grant the extension of time sought. I would remit the question of joinder of Glaxo Group Ltd and Glaxo Laboratories Ltd as additional defendants to the Chamber Judge.
IN THE COURT OF APPEAL
[1993] QCA 114
SUPREME COURT OF QUEENSLAND
C.A. No. 37 of 1992
BETWEEN:
MARY ELLEN WOOD
(Plaintiff) Applicant
AND:
GLAXO AUSTRALIA PTY. LTD.
(Defendant) Respondent
REASON FOR JUDGMENT - B.W. AMBROSE J.
Judgment delivered on 30/3/93
This is an application for leave to appeal against the refusal of an application to extend a period of limitation to expire one year after 23rd March 1989 pursuant to s. 31 of the Limitation Act 1974-1981.
On 23rd March 1990, the applicant issued a writ of summons against the respondent claiming for "damages and loss as a result of negligence and breach of duty on the part of" the respondent.
From the voluminous material used upon the application, it appears that in October 1970 the applicant suffered injuries in a motor vehicle accident which left her with pain in the lower back and legs.
In about July 1972 upon medical advice she underwent a myelogram in a hospital in Cairns which involved the injection of an oily dye called "myodil" into her spine. The object of this examination was to assist in determining whether the pain in her lower back and legs was associated with the condition of her spine.
After the myelogram, the applicant experienced an increase
in spinal pain.
In August 1972 the applicant consulted Dr. Eadie with respect to the pain in her back and he expressed the opinion that she might be suffering from a condition called "arachnoiditis". Thereafter she consulted various doctors and received treatment for and had operations on her back. Dr. Yelland performed an operation on her back in June 1977. He expressed the view in a report to her then solicitors in August 1985, that adhesive arachnoiditis was never the sole nor even a contributory cause of the applicant's back trouble which was attributable to a condition of lumbar canal stenosis detected in an A.C.T. scan taken in May 1984. Dr. Yelland confirmed the diagnosis made in May 1984 when he performed a laminectomy on the Applicant in September 1984. It would be unprofitable to investigate in further detail the very significant medical history of the applicant from the time of the myelogram performed upon her spine in 1972 until the last of several back operations was performed in 1984. Included in those operations were three in each of which a laminectomy was performed.
Suffice it to say that in the course of that medical history, it was suggested by one of the medical practitioners who examined and/or treated the applicant, that her back pain probably resulted from a condition of arachnoiditis (Dr. Boyce) and by another that it might have resulted from that condition (Dr. Eadie). Other doctors (including Dr. Yelland) took a different view.
It emerged in evidence that late in 1983 Dr. Boyce, one of the doctors who examined and/or treated the applicant for a painful back, learnt that Dr. Eadie had suggested arachnoiditis as possibly the cause of her back trouble. He gave evidence that he examined the applicant in February 1984 (or perhaps in December 1983) and then diagnosed arachnoiditis, taking the view that that condition had probably been caused by the myelogram in 1972. He made a written record to that effect and informed the applicant of his conclusion.
The solicitor for the applicant interviewed her and her husband in December 1985 when she gave him reports from Dr. Eadie, Dr. Yelland and Dr. Boyce relating to her back condition. He then discussed the matter with Dr. Boyce who said that although he was of the view that the applicant's back condition resulted from the myelogram performed upon her, it was possible that her back condition resulted from other causes and he was not prepared to state unequivocally that "the 'myodil' itself caused the arachnoiditis".
At that stage after discussing the matter with her solicitor and accepting his advice, the applicant decided not to institute proceedings against any person for injury allegedly caused to her as a consequence of the performance of the myelogram upon her in 1972. The institution of legal proceedings seems then to have been held in abeyance for some years.
The applicant however engaged in quite extensive correspondence with people in England and North America with a view to collecting expert opinion as to the connection, if any, between her back condition and the myelogram performed upon her spine in 1972.
It would not be correct to say that at this time it was the opinion of all experts who had examined the applicant, that her back symptoms in fact, did result from a condition of arachnoiditis. Indeed there was specialist medical opinion to the effect that she did not suffer from this condition.
The applicant however engaged in an examination of medical literature and medical opinion, both in Australia and overseas, with a view to linking any condition of arachnoiditis from which she did suffer with the injection of the oily dye into her spine to enable the 1972 myelogram to be undertaken. Dr. Boyce gave evidence that in the latter part of the 1970s there was some "anecdotal" evidence connecting the use of oily dye for the purpose of a myelogram with the development of a condition of arachnoiditis.
It emerged in the evidence that medical research and investigations in the late 1970s and early 1980s led to the growth of a body of medical opinion supporting the proposition that the injection of certain dyes into the spine was probably a cause of arachnoiditis in some people. This opinion was consistent with those expressed by Dr. Eadie and Dr. Boyce in 1972 and 1984 respectively.
The applicant commenced her action by writ of summons issued on 23rd March 1990. This step preceded the receipt of a further report from Dr. Boyce dated 26th March 1990 stating that in his opinion "on the balance of probabilities" the factor most likely to have contributed to the applicant's arachnoiditis was the oily dye injected into her spine when she had her myelogram performed in 1972. He also expressed the view that the oily dye either caused or significantly contributed to the exacerbation of an underlying process of arachnoiditis, the onset of which probably preceded the use of the oily dye in her myelogram. The doctor went on to explain that it had previously been more difficult to find support in medical literature for linking the use of oily dye upon a myelogram with the subsequent development of arachnoiditis, and that it was only as the result of recent research "in the last twelve months which has brought this to the forefront of medical attention". He said that the existence of this recent research made him more confident in expressing the view he first formed and expressed in 1984.
The applicant's former solicitors made enquiry as to the name of the oily dye used in the myelogram performed upon the applicant and on 24th July 1985 learnt that a substance described as "myodil/pantopaque" was the contrast agent most commonly used in 1972 and would probably have been the substance used for the applicant's myelogram. It was this information which led to the applicant's enquiries in Australia and overseas seeking medical opinion etc. on "the subject of adhesive arachnoiditis" and its connection with the substance "myodil/pantopaque". As the result of her enquires, the applicant learnt that the dye probably used in her myelogram contained the agent "iophendylate" which was distributed under the name "myodil" and "pantopaque" in Australia, although it was distributed only under the name "myodil" in the United Kingdom and only under the name "pantopaque" in the United States of America.
She also learnt that "myodil" and "pantopaque" were produced and sold by two different pharmaceutical companies, although it was probably the same substance sold under those two trade names.
Upon the evidence the applicant did not receive, until February 1990, precise evidence to the effect that it was "myodil" produced by the respondent, in this case, that had been sold in Australia in 1972 and that no substance under the name "pantopaque" had been sold in North Queensland at that time.
The applicant first consulted her present solicitors in 1985 when all the medical opinions and information she had received to that time were considered. She was advised by letter dated 22nd January 1986 from her solicitors that upon their evaluation of the evidence she had produced, they could not recommend action against the respondent. That letter reads as follows:
"We are now returning your file herewith.
We confirm that in our opinion your chances of succeeding in a damages action are not good. We cannot seriously recommend that you take action. We confirm that in our opinion you have received quite detailed Reports from both Dr Donald Watson and Dr John Yelland and have also had the advantage of discussing this matter with a very experienced Solicitor Mr Atkinson. One of the problems as you will notice is that in Dr Yelland's Report he considers that the evidence that there was only a small droplet of myodil left after the myelogram and that this very small quantity would not justify any attempt to remove it. He added, 'I would not consider it negligent if the Radiologist chose not to attempt to remove the dye or only to remove a small amount of it.' It would appear that most if not all myelograms performed in 1972 or thereabouts used myodil. there appears to be no evidence upon which we could allege that the Radiologist who used that dye was negligent or careless particularly bearing in mind that most if not almost all of the myodil had been removed after the myelogram. In the circumstances we have therefore considered the possibility of an action against the Manufacturer.
There would appear to be very considerable problems in taking such an action. One of the main problems of course is that we do not have a completely unqualified statement from a Specialist that says that the cause of your present disabilities and your vertebral canal stenosis was the effect of the dye.
In those circumstances therefore we cannot recommend taking any proceedings against the Manufacturer." (Underlining mine)
It should be kept in mind that at this stage, as indeed is the present case, there was some medical opinion to the effect that her back symptoms were not caused by a condition of adhesive arachnoiditis but on the contrary resulted from a condition of lumbar canal stenosis.
After receiving this advice from her solicitor, the applicant continued to inquire by correspondence with persons overseas and in Australia, interested in the connection, if any, between the spinal injection of "myodil" and the development of arachnoiditis, and she says that in 1989 she received information which "indicated that it appeared to have become a lot clearer that more likely than not" the substance "myodil" had caused a condition of adhesive arachnoiditis in her spine.
In April 1989, the applicant received from a Dr. Burton, in the United States, a preprint copy of a paper which upon the applicant's examination of it, "highlights the causal relationship between "iophendylate" and "adhesive arachnoiditis".
Apparently the applicant gave consideration to this information and ten months later on 22nd February 1990 she placed this further material before her solicitors who made enquiries of a firm of solicitors in the United Kingdom which on 19th February 1990 had apparently arranged for a press release under the title "Arachnoiditis - A New Cause of Action". This press release was placed before the chamber judge upon the applicant's application and some reliance was placed upon its content.
In this press release it is asserted, inter alia:
"We have recently been instructed on behalf of a number of men and women who are suffering from adhesive arachnoiditis which they allege to be result of having undergone myelograms on divers dates between 1976 and 1983. ... We have undertaken research on behalf of our clients as a result of which we have advised them that they have a strong case against Glaxo for negligence and that proceedings should be commenced against Glaxo and further or in the alternative against the doctors and hospital concerned."
A member of the applicant's present firm of solicitors was called to give evidence upon her application. He said that he first saw her and her husband on 18th December 1985. At that time she gave him "a certain amount of literature and medical reports indicating that she had seen other solicitors as well".
She gave him medical reports from four doctors. Of these four doctors it seems that only two expressed the view that she might or did in fact suffer from arachnoiditis. The applicant's solicitor conferred with Dr. Boyce in January 1986 who then expressed the opinion that:
"Even though there was a pretty strong finger pointing in the direction of this myelogram that she had had in 1972 that to prove it in court as a court case would be very difficult to succeed in an action against the manufacturer on a state of medical knowledge that he had then available."
It seems clear then that it was the difficulties perceived by the applicant's solicitor in persuading a court to accept and act upon the opinions of Drs. Boyce and Eadie which dissuaded him from then advising her to institute proceedings.
Not surprisingly the solicitor for the applicant was cross-examined closely on this point; he said that his discussion with Dr. Boyce indicated that Dr. Boyce would not at that time be prepared "to state unequivocally that he was satisfied that the myodil itself caused the arachnoiditis".
Apparently however Dr. Boyce informed the applicant's solicitor that "there was a significant amount of opinion that was pointing at the myelogram".
Detailing the discussion with Dr. Boyce, the solicitor
said:
"He indicated to me that it was a possible cause and possibly more than a possible cause but he said that at that time that there were other - medically there were various articles being written suggesting other things that may have caused this condition and that unless you knew the exact details of the operation and that the operation was conducted 100% squeaky clean and nothing went wrong and nothing got into the wound and there was no other infection or something like that you couldn't really be sure that myodil as a chemical as it were could destroy the membranes that it did destroy."
This was the discussion that took place between the applicant's solicitor and Dr. Boyce in January 1986.
Looking carefully at the content of this 1986 conversation to which the applicant's solicitor deposed, I would infer that Dr. Boyce was expressing an expert opinion that to succeed in proving that myodil had caused arachnoiditis in the applicant's spine, it would have to be proved that that condition was not in fact caused by other things - such as lack of cleanliness when the operation was performed or infection sustained in the course of or attributable to the operative and post-operative
procedures. The doubt raised was the prospect of the applicant's proving that myodil did cause her arachnoiditis by her ability to exclude lack of cleanliness and infection as other possible causes.
The evidence discloses that not all people whose spines had been injected with myodil did develop arachnoiditis and apparently some people who had not been injected with the substance did develop arachnoiditis.
After this discussion and after apparently it had been decided not to institute proceedings with respect to her back condition at that time, the applicant then engaged in various other enquiries and investigations and next came to see her solicitors in January 1990. On this occasion the applicant brought with her, to use her solicitor's words, "quite a large amount of material that Mrs. Wood had managed to gather between 1986 and when she saw me in early 1990." At that time the applicant's solicitor procured the "press release" from the London solicitors to which I have referred.
It seems clear on the material that both in 1986 and 1990 when the applicant consulted her solicitors, she sought advice with a view to taking legal action for negligence against any person against whom it might be established with respect to a condition of arachnoiditis caused by her myelogram in 1972 - whether those persons were the doctors that performed the operation or the hospital authorities, or the manufacturer of the dye used in the myelogram. About one year prior to March 1989, the applicant received a letter from Professor Jason of the University of Manchester in which it was stated that research into the effect of oil based myelography in which myodil is used indicated that it is one cause of the development of arachnoiditis. In April 1988, she received a further report from Professor Jason asserting, inter alia, that:
"The most severe types of arachnoiditis are found in patients who have previously had myelograms using an oil based material which is no longer in use. It also develops in some patients as a consequence of the procedure itself."
Again, Professor Jason makes it clear that arachnoiditis can develop as a consequence of the operative procedures involved in the giving of a myelogram quite apart from the use of an oil based dye.
The applicant's right of action which she seeks to pursue subject to an extension of the period of limitation under s. 31 of the Limitations of Actions Act 1974-1981 is one for damages for negligence resulting in her personal injury. That is the sort of action to which s. 31 of the Limitation Act applies.
Section 31(2) 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 purpose of the action brought by the applicant in that court the period of limitation is extended accordingly."
Section 31(2) of the Act must be considered in the light of the interpretations contained in s. 30. Section 30 provides inter alia that for the purpose of s. 31(2):
"(a) The material facts relating to a right of action include the following:
i) The fact of the occurrence of negligence ... 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 ... 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 ... "
(b) Material facts relating to a right of action are of a decisive character if but only if a reasonable man 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 his own interests and taking his circumstances into account to bring an action on the right of action.
(c) '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 as the case may require.
(d) A fact is not within the means of knowledge of a person at a particular time if but only if:
i) He did not at that time know the fact; and ii) So far as the fact is capable of being ascertained by him he has before that time taken all reasonable steps to ascertain that fact."
It is contended for the applicant that there are three "material facts of a decisive character relating to" her right of action within the meaning of s. 31(2)(a) of the Limitation Act which were not within her means of knowledge prior to one year before the institution of this action - that is, prior to 23rd March 1989. Those facts are said to be:
"i) The fact that her arachnoiditis is the consequence of the myelogram performed in or about July 1972.
ii) That the substance used in the myelogram was "myodil", the product of the respondent imported and distributed in Australia by the respondent.
iii) That at the time of the administration of the myelogram to the appellant the use of "myodil" for myelograms involved a risk of damage to the spines of those to whom it was administered and its manufacture and distribution for such use was negligent."
In my evaluation of the material relied upon by the applicant before the chamber judge and indeed again relied upon by her upon this application, it seems clear that as early as 1986 the back symptoms from which she suffered at that time had been diagnosed by two of the doctors from whom she had sought treatment, as resulting from arachnoiditis. One was of the view that this condition was probably due to the use of an oily dye injected into her spine for the performance of the myelogram in July 1972. Another doctor had denied the existence of this condition and diagnosed her symptoms as resulting from a condition of lumbar canal stenosis. At about that time, the applicant received information, as the result of her enquiries, that the oily dye used in the myelogram performed upon her contained a substance "iophendylate" which at the material time had been sold and distributed in Australia under the trade name "pantopaque" or alternatively "myodil".
In possession of that information the applicant consulted her present solicitor who advised her that on the material that she then had "it was impossible to isolate 'myodil' as the sole cause of 'her back condition'". As I read the latest report from Dr. Boyce given in march 1990, he is still unprepared to isolate myodil as the sole possible cause of her back condition.
From the applicant's material it appears that between January 1986 and January 1989 additional evidence has been gathered to support the conclusion first reached by Dr. Boyce in 1984, that the injection of "myodil" into her spine in 1972 was probably the cause of the development of a condition of arachnoiditis in her spine. This information appears to have been contained in a report given to the applicant by Dr. Boyce on 20th February 1984. Both Dr. Boyce and the applicant's solicitor referred in oral evidence to the content of the report which however does not appear in the record before us.
This report was placed before the applicant's solicitor on 18th December 1985. This diagnosis has been subsequently confirmed by Dr. Boyce in 1990, although there is no evidence that the other doctor who disagreed with that diagnosis has changed the opinion which he has already expressed. The applicant contends that this confirmatory report in 1990 amounts to additional evidence, which in itself, is "a material fact of a decisive character".
Another way of characterising the "new material" of which the applicant obtained knowledge in 1990 (after her present action had been commenced), is that it amounts merely to the procuring of additional information or "evidence" to that already at hand which she and/or her legal advisers have concluded will be more persuasive and therefore more likely to result in her succeeding in the action which she has now commenced, than would have been the case had she proceeded when her prospects of success in such an action were first considered by her present solicitors in January 1986 or had she proceeded at any time up to 23rd March 1989.
I am unpersuaded that it can be said that a fact of a decisive nature, not within the applicant's knowledge prior to March 1989, is "the fact that her arachnoiditis is probably the consequence of the myelogram performed upon her in or about July 1972". The proposition need only be stated to see that it is a contention as to the existence of an ultimate fact which the applicant would hope to establish by evidence in court.
The case is that at least one of four doctors whose reports were obtained by the applicant has expressed the view that the applicant does not even suffer from arachnoiditis. Dr. Eadie in 1972 expressed the view that she might be suffering from this condition and Dr. Boyce diagnosed her condition as arachnoiditis in 1984. He has adhered to that diagnosis but as the result of further readings and further scientific investigations into the effect of such dyes injected into the spine of patients to permit a myelogram to be performed, concludes that he is now able to speak more confidently about the connection between the spinal dye and the applicant's back condition than he was prepared to do in 1986. He is presently of the view that the applicant has better prospects now of establishing that fact in court than she had in 1985/1986.
In my view the willingness of a medical expert to speak more confidently in support of a diagnosis that he made in 1984 because of subsequent investigations, research work, etc. conducted on the connection between the injection of "myodil" and the development of adhesive arachnoiditis cannot be characterised as a "material fact of a decisive character" within s. 31(2)(a) of the Limitation Act.
While no doubt it will frequently be the case that evidence of a fact will be obtained at the same time as knowledge or belief in the existence of that fact is first obtained, that will not always be so. Just as frequently a fact will be known or believed to exist long before the existence of all the admissible evidence to be called to establish that fact in court is known.
In Re Sihvola [1979] Qd.R. 458 Wanstall C.J. observed:
"The issuing of a writ presupposes knowledge or at least belief by the plaintiff or his legal advisers that he can establish the cause of action alleged in his writ by proving the facts that are then within his knowledge. The antithesis of this proposition becomes the basic assumption of the scheme i.e. that he has not issued a writ because he lacked knowledge of some material fact on proof of which his case depended either entirely or for a worthwhile result. The scheme is designed to relieve such a plaintiff
from the consequence of a failure to issue a writ within the time which is shown to be due to ignorance of this kind."
In Sugden v. Crawford [1989] 1 Qd.R. 683 Connolly J. in delivering a judgment with which Shepherdson J. agreed adopted the observations of Wanstall C.J. in Taggart's case and said at p. 686:
"The principle which I have derived from Taggart's case goes essentially to the effect of the newly discovered fact on damages. Where on the other hand the decisive character of the newly discovered fact goes to the prospect of establishing liability similar but not identical concepts are involved.
Section 30(b)(i) focuses on the prospect of success and whether that can be described as reasonable whereas s. 30(b)(ii) calls for an enquiry whether the appellant ought in his own interests and taking his circumstances into account to bring the action. The basic assumption of the scheme is that if both these conditions were already satisfied without the new evidence its discovery will not warrant an extension of time. It follows that an order will be justified where there is such an enhancement of the prospect of success as for example would suffice to raise it from possibility to a real likelihood. Thus a prima facie case of actionable negligence may already exist but it may well seem to the applicant's legal advisers to be on balance too risky until the newly discovered fact emerges. The court extending time is required to see that there is evidence to establish the right of an action apart from the defence founded on the expiration of a period of limitation: s. 31(2)(b).
All that is necessary to satisfy this provision is what may in general terms be described as a prima facie case. This however is not at all the same thing as saying that there is a reasonable prospect of success resulting in an award of damages sufficient to justify the bringing of the action; or that the applicant ought in his own interests taking his circumstances into account hazard the risks of litigation and the time and expense involved."
In Sugden's case the court considered a case where the plaintiff suffered a back injury which was unidentified upon medical examination and which the doctor thought was of a type which would improve with the passage of time. After the expiration of the period of limitation the plaintiff was subjected to the "sophisticated technique of the C.T scan" which revealed a fracture of one of the lumbar vertebrae. The court held in that case that the discovery of the fracture by the C.T. scan after the expiration of the limitation period was a material fact of decisive character which justified an extension of time. However the observations of Connolly J. in that case must be read in the light of his observations in Berg
v. Kruger Enterprises (Division of Besser Qld Limited) Ltd.
[1990] 2 Qd.R. 301. In that case the Full Court considered whether upon the evidence an applicant had shown that a material fact of a decisive character was not within his means of knowledge when within the limitation period he knew certain facts and had he taken "the appropriate advice on those facts" would have regarded it as worthwhile to bring an action.
Connolly J. referred to the judgment of Wilson J. in Do Carmo v. Ford Excavations Pty. Ltd. (1984) 154 C.L.R. 234 at 244 and to the citation by Wilson J. in that judgment of part of the speech of Lord Pearson in Smith v. Central Asbestos Co. (1973) A.C. 518 at 542 where His Lordship observed:
"It seems to me the Parliament has drawn the line between ignorance of facts (material and decisive facts) and failing to draw the conclusions which a reasonable man with the aid of expert advice would have drawn from those facts as to the prospect of success in an action. If the plaintiff did not know one or more of the material and decisive facts his lateness in bringing the action is excused. If he knew all the material and decisive facts but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice his lateness in bringing the action is not excused."
At p. 305 of the report of Berg v. Kruger Enterprises, Connolly J. cited with approval the observation of Macrossan J. in Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd.R 325 where at p. 333 he observed:
"In cases like the present an applicant for extension discharges his onus not simply by showing that he has learnt 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. Workers' Compensation Board of Queensland [1983] 2 Qd.R. 19, 23, 24, and Doe Carmo v. Ford Excavations Pty. Ltd. (1984) 154 C.L.R. 234, 251 per Deane J."
Although the applicant placed some reliance on the observations of Connolly J. in Sugden v. Crawford (supra) at p. 686 those observations must be considered in the context in which they were delivered. The reference to "the new evidence" in that case clearly refers to evidence of a fracture in the applicant's vertebrae which had not previously been diagnosed or discovered, which the C.T. scan for the first time revealed.
While it is true that reference is made to "the discovery of new evidence", that reference in the context of the case really does no more than categorise the discovery of the existence of a cracked vertebrae not previously diagnosed as the emergence of "the newly discovered fact". Stated shortly, the "material fact" newly discovered in Sugden v. Crawford (supra) was the crack in the applicant's vertebrae of which neither he nor the medical practitioners examining and treating him were previously aware or previously believed to exist.
In my view there is nothing in Sugden v. Crawford (supra) or Berg v. Kruger Enterprises (supra) to support the bald proposition that the applicant who had been advised over a period of many years by medical practitioners that they believed she suffered from arachnoiditis, and by one that he believed it had probably been caused by injection of myodil into her spine in 1972, was able to postpone indefinitely the institution of proceedings to enforce her right of action until a time was reached when she and/or her legal advisers were persuaded that upon the state of medical opinion and medical knowledge then available she might be more confident in establishing essential facts material to her right of action because expert witnesses might then give evidence to support her case with more confidence having regard to the results of various medical investigations and reports conducted since 1972.
With respect to the second "material fact" for which the applicant contends, it is clear on the material that long before January 1989 the applicant knew that the substance "iophendylate" was marketed in Australia under two trade names, "myodil" and "pantopaque". Indeed Dr. Yelland gave this information in a report to her then solicitors in August 1986.
Her solicitors gave her this information. While it is true that it was not until 15th January 1990 that the applicant learnt that the substance under the trade name "pantopaque" was not at the material time sold in North Queensland, it is clear that she was aware that the substance which she believed was injected into her spine was distributed in Australia under the names, "myodil" and "pantopaque". It does not appear that she ever sought to have her solicitors inquire as to the likely identity of the distributor of the material that is said to have been used in her myelogram in July 1972. On the material it seems that she did not even ask her solicitor in 1986 to discover the probable identity of the distributor of the spinal dye said to have been used in her myelogram. She swears she discovered that identity finally in January and February 1990.
There is no reason to believe that information could not have
been procured at a much earlier date if it had been sought.
Indeed the material shows that in reply to a letter from the
applicant dated 9th January 1990, the respondent by letter
dated 5th February 1990 informed her that "myodil" had been
distributed by it in Australia at least from 1959. In my view
her then solicitor could certainly have given her "appropriate
advice" within the meaning of s. 30(c) and taken reasonable
steps to ascertain that fact so that it would have been within
her means of knowledge long before March 1989 as required under
s. 30(d) of the Act. In any event R.S.C. O. 3 r. 8 allows a
plaintiff unsure of whom of two parties should be made a party
to an action proposed by that plaintiff, to make both parties
defendants to proceedings instituted for relief.
The third "material fact of a decisive character" for which she contends is:
"That at the time of the administration of the myelogram to the applicant the use of 'myodil' for myelograms involved a risk of damage to the spines of those to whom it was administered and its manufacture and distribution for such use was negligent."
That does not seem to me on analysis to be "a material fact" of the sort contemplated by s. 31(2) of the Act. In essence this statement of a so-called "material fact" really amounts to no more than a bold assertion of mixed fact and law which is the very thing that the applicant would have to prove if she were to succeed in her action against the respondent.
It is clear from the material that this third so-called "material fact" involves the very matters considered by the applicant's solicitor which led him to advise against the institution of any action of the sort which she has now instituted as long ago as January 1986. This "fact" is really no more than a statement in argumentative form of the very conclusion which the applicant would have to persuade a court to reach to succeed in her action. On the material, this "fact" was appreciated by both the applicant and her then solicitor in January 1986, although it was thought that the available evidence was not sufficiently strong to risk litigation.
In my view the first and the third of the three "material facts of a decisive character" within the meaning of s. 31(2) of the Limitation Act for which the applicant contends, if properly characterised as "facts", are ultimate facts, the existence of which must be proved by establishing evidentiary facts.
I would adopt, with respect, the characterisation of "material facts" in the context of s. 30 of the Limitations Act suggested by Lord Pearson in Smith v. Central Asbestos Co. (supra) at pp. 543-4 and p. 545:
"Now what is the 'negligence, nuisance or breach of duty constituting that cause of action'? I think this phrase refers to the defendants' conduct, because injuries do not result from legal concepts but may result from wrongful acts or omissions. The acts or omissions must be wrongful in the sense of involving a wrong as against the plaintiff, if they are to have significance for the purposes of an action for damages. I do not think the plaintiff has to know what is the proper legal label to be attached to the defendants' wrongful conduct. He does have to know as matter of fact that the defendants' conduct was wrongful as against him and that it brought about his injuries. In using the word 'wrongful' I am not intending to imply that he must form or obtain a legal opinion that the defendants' conduct was tortious: I mean that he has to know as matters of fact that the defendants were at fault and his injuries were attributable to their fault. He can know the matters of fact as a jury would decide them in a trial by judge and jury. The jury would be directed to decide such matters on a commonsense, factual basis. They might be asked, for instance, whether in their view the defendants failed to take reasonable precautions for the safety of their employees, whether they required their employees to work in a dangerously polluted atmosphere or whether they failed to comply with safety regulations. The jury would be asked also whether, if the defendants' conduct was wrongful, it caused the plaintiff's injuries. In a case of dual or multiple causation, they would be directed to apportion the responsibility.
In my opinion, the phrase 'the material facts' in subsection (3) of section 7 can and should be given its natural meaning. It refers to matters of fact, not conclusions of law. The matters of fact are such as would be decided by a jury in a trial by judge and jury, and such as can be known by the injured person before he has taken legal advice."
Page 545:
"I think it should be made clear that the plaintiff does not know all the material facts unless he knows (as a matter of fact in the same manner as a jury would decide) that the defendants were at fault and that his injuries were attributable to their fault." (Underlining mine)
Assuming in the applicant's favour that evidence from Dr. Boyce that she has at material times suffered from a condition of arachnoiditis be preferred to other medical evidence that she has not suffered from such a condition, she has clearly had knowledge of or believed that "material" fact since 1984.
On the assumption that the opinion then expressed by Dr. Boyce that the applicant's condition of arachnoiditis probably ("more than possibly") resulted from the injection of an oil dye into her spine to facilitate the myelogram be correct, the applicant was clearly aware in 1984 of any "material fact" which may be deduced from that opinion. The activities of the applicant over the years in investigating and procuring evidence concerning the link between a condition of arachnoiditis from which she might suffer and the injection of myodil into her spine in 1972, demonstrate not so much her lack of knowledge of this link as her search for as much evidence as she could assemble to prove that link in court proceedings.
In my view the fact that subsequent to the expression by Dr. Boyce in 1984 of the opinion that the applicant's back condition was probably caused by the injection of myodil, further research has taken place which if accepted might make that opinion more persuasive, does not make such further information an additional "material fact" to that which came to the knowledge of the applicant when Dr. Boyce first expressed his opinion to her in 1984. If such were the case, the obtaining of additional evidence to support an alleged right of action would always amount to discovering an additional material fact which comes to the knowledge of the plaintiff only when it is obtained. Section 30(b) could, it seems to me, be applied only with difficulty in such a case to determine whether such a fact was "decisive".
The applicant did not argue that upon the evidence and in spite of the opinion of Dr. Boyce expressed in 1984, she would not have had a reasonable prospect of success sufficient to justify her bringing an action relying only upon the evidence in her possession prior to 23rd March 1989. Any such argument would have to be based upon ss. 30(b)(i) and (ii). The test under that section is objective. In this regard I refer to Smith v. Central Asbestos Co. (supra) at p. 544 per Lord Pearson.
In any event as I read the evidence of Dr. Boyce (both written and oral) and the expert advice upon which the applicant relies generally, the original reservations expressed by Dr. Boyce in 1986 still apply in spite of the increased knowledge in the medical profession concerning the link which sometimes exists between the use of myodil and the development of arachnoiditis which has been gained over the last few years.
The fact is that arachnoiditis can result from myelograms performed without the use of myodil from a variety of causes and myelograms in which myodil is used can be given with or without the consequent development of arachnoiditis.
Section 31(2)(a) does not refer to "material evidence" but rather to "material fact". The difference between a fact in issue and the evidence by which or from which that fact may be proved or inferred, must be kept in mind when considering the applicant's contentions in this case.
Section 31(2) clearly highlights this difference when it distinguishes between a material fact relating to a right of action in s. 31(2)a) and the evidence necessary to establish that right of action in s. 31(2)(b).
Much of the material placed before the chamber judge upon this application and much of the argument advanced upon it both below and before this court, was concerned with whether the quality of the evidence that might be available to the applicant was sufficient to establish her alleged right of action as required under s. 31(2)(b). Under s. 30(b)(ii) of course, a material fact is "decisive" only if the person seeking an extension "ought in his own interests and taking his circumstances into account" commence an action. The applicant's inability or lack of evidence to prove a material fact is not in itself the subject of relief under s. 31(2).
Under s. 31 she is given relief only if a material fact of a decisive character is not within her knowledge. If she had such knowledge at relevant times, she gets no relief under s. 31 merely because of a lack of available evidence to prove the fact of which she had knowledge.
Under s. 31(2)(b) the applicant must, of course, show that evidence exists, at the time she makes application for extension, to establish her right of action. That however is the only relevance of the existence of evidence to establish a right of action. The applicant may not get an extension under s. 31 on the ground merely that she had no knowledge of evidence to support her right of action much less that such evidence was not available until year before institution of her action. The Limitation of Actions Act selects lack of knowledge of material facts as the basis for extending the limitation prescribed by the Act, not the lack of knowledge of, or unavailability of evidence necessary to prove those facts known or believed to exist. In my view s. 30(b) of the Act may not be construed or applied so as to change the basis upon which the period may be extended from lack of knowledge of a fact to lack of evidence thought sufficient to prove a fact known or believed to exist.
Insofar as articles, reports on the outcomes of investigations, statistical analyses etc. relating to any causal connection between injection of myodil into the spinal column of persons undergoing a myelogram in the early 1970s, or for that matter at any other time, are in themselves "facts", I take the view that they have only a peripheral relevance to the applicant's alleged right of action.
No doubt to the extent that those "facts" are considered and relied upon by any expert called to give opinion evidence, they may be relied upon by the party calling him to establish his reliability or the weight that should be given to the opinion he is called to give in evidence. If the party calling that expert seeks to rely upon such "facts" it could do so only by having the expert adopt the relevant parts of such material to the extent that he is able or prepared to do so and make those parts so adopted part of his opinion. However insofar as the content of material to which the expert refers lends support to his opinion or permits that opinion to be considered in the light of other experts' conclusions, that other material will go only to the reliability of the opinion the expert expresses in court. Insofar as opposing counsel puts other expert conclusions to the expert giving evidence for the purpose of showing inconsistency etc., that other material so put will also go only to the reliability of the opinion actually given by the expert in court. For a discussion of the purposes for which materials, texts, etc., out of court to which an expert witness refers in the course of giving evidence may be used, I refer to Reg v. Abadom (1983) 1 W.L.R. 126 and in particular to pp. 128-131. At p. 131 it was observed by Kerr L.J. delivering the reasons of the court:
"We are here concerned with the cogency or otherwise of an opinion expressed by an expert in giving expert evidence. In that regard it seems to us that the process of taking account of information stemming from the work of others in the same field is an essential ingredient of the nature of expert evidence. So far as the question of principle is concerned we have already explained our reasons for this conclusion ...
Once the primary facts on which their opinion is based have been proved by admissible evidence they are entitled to draw on the work of others as part of the process of arriving at their conclusion. However where they have done so they should refer to this material in their evidence so that the cogency and probative value of their conclusion can be tested and evaluated by reference to it ...
But it does not seem to us in relation to the reliability of opinion evidence given by experts that they must necessarily limit themselves to drawing on material which has been published in some form. Part of their experience and expertise may well lie in their knowledge of unpublished material and in their evaluation of it. The only rule in this regard as it seems to us is that they should refer to such material in their evidence for the reasons stated above."
In my judgment the investigations, reports, articles, etc., which have come to the knowledge of Dr. Boyce between 1986 and 1990 will have relevance and be admissible only to support the expert opinion he first formed in 1984 which that doctor apparently now feels will be more persuasive in court than he felt in 1986. In my judgment, a fact, evidence of which is relevant and admissible only for this purpose, will seldom properly be characterised as "of a decisive character" under s. 30(b) even if it may be characterised as "a material fact" under s. 31(2)(a) unless it satisfies the requirements of s. 30(b)(ii) of the Limitation of Actions Act 1974-1981.
The essence of the applicant's case is that s. 31(2)(a) of the Limitation of Actions Act permitted her to postpone the institution of proceedings, to succeed in which she must establish a material fact or material facts, not merely until she had knowledge of such facts but until such time as she or her legal advisers were persuaded upon examination of all information and evidence then at hand that her prospects of success in establishing in court her right of action based upon those facts were better than they would have been had proceedings been instituted when those facts, first came within her knowledge more than twelve months before her application for extension of the limitation period was made. Keeping in mind the constraints of s. 30 of the Limitation of Actions Act, such a contention could only succeed if having regard to her state of knowledge and the evidence and advice at her disposal prior to 23rd March 1989, it could be said that in the circumstances it was reasonable for her to refrain from commencing action until her state of knowledge, available evidence and advice thereon, reached a level which upon objective evaluation would for the first time make it reasonable for her to commence the action. See Smith v. Central Asbestos Co. (supra) at p. 452.
In refusing the applicant's application the chamber judge considered in detail a great deal of evidence called by both the applicant and the respondent as to the existence of evidence which could support her case if an extension of time were granted. In doing so he referred to the principles stated in Dwan v. Farquhar [1988] 1 Qd.R. 234 and observed:
"... the applicant asks that I find that there is
evidence capable of supporting the drawing of such
inferences on trial [i.e. inferences of fact
necessary to support judgment for the plaintiff].
For the reasons amply explained in Dwan v. Farquhar I
am not prepared to draw those inferences nor to guess
that such were the facts and I am not persuaded that
the evidence exists which is capable of supporting
such inferences upon trial."
Upon the hearing of the application there was a wide ranging inquiry into expert knowledge and/or opinion about the properties and the usage of "iophendylate" in various parts of the world at various times from Scandinavia in 1948 to the United States of America in the mid-1980s. The object of the enquiry was to ascertain if there was available to the applicant evidence capable of proving that in July 1972 the respondent was negligent in supplying myodil for use in her myelogram.
Upon this application, it was contended that the learned Chamber Judge fell into error by determining what judgment should be given on that evidence rather than whether part of it was capable of supporting a finding in the applicant's favour.
It is clear that the application before the chamber judge was not confined to this issue (under s. 31(2)(b) and s. 30(b)(ii)) but was also contested on the basis that the requirements of s. 31(2)(a) and ss. 30(b), (c) and (d) had not been satisfied.
Upon the evidence and adopting the approach of Lord Pearson in Smith v. Central Asbestos Co. (supra) which was applied in De Carmo v. Ford Excavations (1983-4) 154 C.L.R. 234, the "material fact" upon which the applicant in the present case must rely under s. 31(2)(a), read with ss. 30(a)(i) and (iii) may be stated thus:
The myodil injected into the applicant's spine in 1972 was probably a cause of arachnoiditis in her spine.
To show that material fact to be "decisive" under s. 30(b) the applicant must show that prior to 23rd March 1989:
a) She did not know that material fact and it was not within her means of knowledge and she had prior to that time taken all reasonable steps within her capacity to ascertain that fact.
b) A reasonable person knowing that fact and having taken the advice of competent persons in the medical and legal professions would regard that fact as showing -
i)
she had a reasonable prospect of successfully bringing action against the respondent, and
ii) she ought in her own interests in the circumstances have brought the action she has now taken against the respondent.
In my judgment upon the facts of this application, it is
clear that long before 23rd March 1989 the applicant did in
fact know or believe the material fact as I have defined it.
She was advised of that fact by Dr. Boyce and his advice was
supported by material she obtained upon enquiries she made in
this regard. Her efforts to obtain expert advice in Australia
and overseas were not directed to give her knowledge or sustain
her belief in that fact but rather to gather and collate
material to be used as evidence to support the evidence she
obtained in 1984 linking any condition of arachnoiditis, from
which she might suffer, with the spinal injection of myodil she
received in 1972. I take the view that having regard to the
evidence already in her possession long before 23rd March 1989,
the applicant ought in the circumstances in her own interests
to have brought an action of the sort she did not in fact bring
before on 23rd March 1990.
The latest report of Dr. Boyce and the evidence he gave upon this application do not in fact suggest that the evidence now available to the applicant will be of much more help than that available in 1984 or 1986. In his report of 26th March 1990, Dr. Boyce observes:
"It would appear that over the period either since the accident or alternatively since the oily myelogram that the lady has developed severe adhesive arachnoiditis."(Underlining mine)
He continues:
"The question in Mrs. Woods' case is on the balance of probabilities which of the factors was most likely to have contributed to her arachnoiditis, and in that regard the most likely is the oily dye. Having said that she never would've had the oily dye had she not had her accident, and subsequently developed pain over a period of years during which time some degree of arachnoiditis probably would've occurred prior to the oily dye being concerted. In specific answer to your question therefore, I would have to say that I believe the oily dye either caused or significantly contributed to the exacerbating and underlying process of arachnoiditis which has developed and persisted in Mrs. Wood's case and lead to her being a sufferer of chronic pain and being permanently disabled. I can also state that it has been difficult to establish this as a fact, and indeed it is only more recent research in the last 12 months which has brought this to the forefront of medical attention." (Underlining mine)
The essence of the latest report is that in the view of Dr. Boyce the injection of myodil into the spinal column of the applicant "on the balance of probabilities" was the factor "most likely to have contributed to her arachnoiditis". The other "factors" which may have caused the condition (if in fact the applicant has that condition) are no doubt those discussed by the doctor and the applicant's solicitor in 1986 to which I have already referred. The basis upon which the opinion that of all possible causes of arachnoiditis in the case of the applicant, the use of myodil upon her myelogram is the most probable is unexplained upon the material.
In my view the increased confidence of Dr. Boyce in linking the exacerbation of arachnoiditis in the spine of the applicant with the injection of myodil into her spine in 1972 is incapable of characterisation in itself as a "material fact". In oral evidence, Dr. Boyce conceded that in 1984 he held the view that the applicant's arachnoiditis was probably caused by the use of myodil although there may have been other causes. By the time he gave evidence in 1990 he was, to use his own words, "somewhat more confident that the view expressed in 1984 might be correct".
Upon the material, in my judgment, the applicant failed to establish either lack of knowledge that, or the taking of all reasonable steps to ascertain that the myodil injected into her spine in 1972 was probably a cause of arachnoiditis in her spine (or at least a cause of an exacerbation of that spinal condition), and so failed to satisfy the requirements of s. 31(2)(a).
Upon the facts of this case it is unnecessary to consider the interesting question as to the stage when the possession of information relating to a fact amounts to knowledge of that fact or when belief in or intellectual persuasion as to the existence of a fact - whether or not that belief is determined ultimately to be well founded - amounts to knowledge of that fact. Upon the evidence in this case the inference in my view is irresistible that long before 23rd March 1989 the applicant believed that she suffered from a condition of arachnoiditis which was caused by the injection of myodil into her spine in 1972, and the belief was based upon the information she was given by Dr. Eadie and Dr. Boyce and other information she obtained prior to 23rd March 1989 linking the development of arachnoiditis with spinal injection of myodil. Her dedicated effort to obtain expert opinion on this matter was not directed to her own knowledge or belief but rather to the proof of that matter in court.
Apart from Dr. Boyce feeling more confident in expressing his opinion in 1990 than he did in expressing the same opinion in 1984, upon the evidence the applicant appears to be in no stronger position now to prove the issues she must prove to succeed against the respondent than she was in 1984-1985.
It is unnecessary to embark upon a detailed consideration of the evidence called upon the application to determine whether or not the finding which the learned chamber judge made leading to his refusal is supportable.
It was contended that leave to appeal was necessary in
this case because notice of appeal was served out of time.
Upon the assumption that leave is necessary, upon the facts of
this case I would grant leave to appeal, dismiss the appeal,
and order that the applicant pay the respondent's costs of the
appeal to be taxed.
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