- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Walker v Tucker  QSC 141
STEVEN FRANCIS WALKER
BS No 7658 of 2018
Supreme Court at Brisbane
3 June 2019
6 December 2018; further submissions received 13 December 2018 and 17 December 2018
The order of the Court is that:
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where the applicant presented at the respondent’s clinic with symptoms including back pain and paraesthesia of both legs – where the applicant was referred by the respondent for a CT scan revealing a soft tissue density on the applicant’s spine – where it is a point of contention whether the respondent told the applicant to go to the Princess Alexandra Hospital emergency department – where the respondent provided the applicant with a written referral to the Princess Alexandra Hospital emergency department – where the respondent did not call an ambulance to transport the applicant to the Princess Alexandra Hospital – where the applicant took private transport from the clinic to his home in Ipswich and then to the Ipswich Hospital before being transferred by ambulance to the Princess Alexandra Hospital where he underwent an MRI and subsequently surgery – where the applicant suffered spinal injuries – where the relevant limitation period in respect of an action against the respondent expired on or about 11 October 2016 – where a Dr Lynch on the instructions of the applicant’s solicitors provided a report as to the respondent’s treatment of the applicant in October 2014 opining that the respondent had acted to the standard of a reasonable and prudent general practitioner – where after receiving instructions from the applicant further to those with which he had previously been provided Dr Lynch provided a changed opinion that the respondent had not acted to that standard in not calling an ambulance for the applicant on 18 July 2017 – where the applicant became aware of the changed opinion of Dr Lynch on 3 August 2017 – where the applicant issued proceedings against the respondent on 18 July 2018 – whether the changed opinion of Dr Lynch constitutes a material fact of a decisive character such that the applicant’s prospects of success justified bringing an action against the respondent
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – REASONABLE STEPS TAKEN TO ASCERTAIN FACTS – where a Dr Downes-Brydon engaged by the applicant’s solicitor raised the question of whether the respondent should have called an ambulance in January 2017 but subsequently clarified her view was that it would be difficult to sustain an argument that the respondent should have called an ambulance – where the applicant’s solicitor informed the applicant in March 2017 of Dr Downes-Brydon’s view – where the applicant then instructed he was content not to proceed against the respondent – where in May 2017 a Ms Sharp engaged by the applicant’s solicitor raised the question of whether the respondent should have called an ambulance and that a patient may not want an ambulance called due to the cost thereof – where Dr Lynch was provided with instructions further to those with which he had previously been provided prior to providing his changed opinion on 18 July 2017 – where the applicant was not made aware of the changed opinion of Dr Lynch until 3 August 2017 – whether the material fact of the changed opinion of Dr Lynch was not within the applicant’s means of knowledge prior to 18 July 2017
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – EVIDENCE TO ESTABLISH RIGHT OF ACTION – where the respondent contends the opinions of Dr Lynch are inadmissible – where the respondent contends it has adduced evidence refuting breach and causation and the applicant has adduced no evidence establishing breach and causation -- whether there is evidence to establish a right of action against the respondent
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – PRINCIPLES UPON WHICH DISCRETION EXERCISED - where there was delay in instituting proceedings after the expiry of the limitation period – where there are extensive medical records and contemporaneously produced statements – where the respondent provided a statement to the applicant’s solicitors regarding the subject consultation with the applicant for the purpose of related proceedings – where the respondent was not at the time of providing the statement informed by the applicant’s solicitors that he was potentially the subject of a claim by the applicant and did not seek advice prior to providing it – whether there can be a fair trial of the matter such that the Court’s discretion should be exercised in favour of the extension
Limitation of Actions Act 1974 (Qld), s 30, s 31
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied
Carlowe v Frigmobile Pty Ltd  QCA 527, cited
Davison v Queensland (2006) 226 CLR 234, considered
Dwan v Farquhar  1 Qd R 234, followed
Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd  QCA 112, cited
Healy v Femdale Pty Ltd  QCA 210, applied
Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (in liq) & Anor  QCA 352, applied
HWC v The Corporation of the Synod of the Diocese of Brisbane  QCA 168, cited
Limpus v The State of Queensland  2 Qd R 161, followed
NF v State of Queensland  QCA 110, applied
Pizer v Ansett Australia Ltd  QCA 298, applied
Prince Alfred College Inc v ADC (2016) 258 CLR 134, applied
The State of Queensland v Stephenson (2006) 226 CLR 197, followed
Wolverson v Todman  QCA 74; (2015) 2 Qd R 106, distinguished
Wood v Glaxo Australia Pty Ltd  2 Qd R 431, followed
M E Eliadis with A Katsikalis for the applicant
D B Fraser QC with D J Schneidewin for the respondent
Shine Lawyers for the applicant
Meridian Lawyers for the respondent
On 11 October 2013, Mr Walker saw Dr Tucker for the first time. Mr Walker was displaying symptoms including back pain and paraesthesia of both legs. Dr Tucker immediately referred him for a CT scan. That scan revealed that Mr Walker had a soft tissue density with possible appearances of a soft tissue oedema or a nerve sheath tumour in the area of his thoracic spine. Dr Tucker wrote a referral for the Princess Alexandra Hospital (“PA Hospital”) emergency department. It is a point of contention whether Dr Tucker told Mr Walker to go to the PA emergency department. Mr Walker was driven by his partner back to their home and subsequently by a friend to the emergency department of the Ipswich Hospital. He subsequently was transferred by ambulance to the PA hospital, had an MRI and was operated on later that evening. It is alleged that he was left with spinal injuries. Proceedings were issued by Mr Walker in May 2016 against Dr Mogg, the general practitioner he had seen on previous occasions, and the Ipswich Hospital, alleging that he had suffered personal injuries arising out of his spinal injuries as a result of alleged negligence by each of them. Dr Tucker was not a party to those proceedings. Mr Walker’s solicitor obtained a report from Dr Lynch in October 2014, who opined that Dr Tucker had acted as reasonable and prudent general practitioner. He did not consider the failure by Dr Tucker to call an ambulance to take Mr Walker from his surgery to the PA Hospital was inappropriate when it was specifically raised by Mr Walker’s solicitor.
Mr Walker’s solicitor subsequently informed Dr Tucker that he was not a potential claimant and a copy of his records was requested. Subsequently, questions were raised by Dr Downes-Brydon and Ms Sharp, when providing reports in respect of Dr Mogg and the Ipswich Hospital, about the failure by Dr Tucker to call an ambulance. A further report was obtained from Dr Lynch in July 2017 where he changed his opinion and stated he considered that Dr Tucker had not acted to the standard of a reasonable and prudent general practitioner in not calling an ambulance for Mr Walker to transport him to the PA Hospital. Mr Walker was informed of Dr Lynch’s changed opinion on 3 August 2017. Proceedings were filed against Dr Tucker by Mr Walker on 18 July 2018.
The limitation period for bringing an action for personal injuries against Dr Tucker expired on 11 October 2016. This application seeks an extension of time until 3 August 2018 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”), on the basis that Mr Walker only became aware of a material fact of a decisive character on 3 August 2017, Dr Lynch’s changed opinion being the material fact of a decisive character in the case of negligence against Dr Tucker relied upon by Mr Walker.
The application is vigorously opposed by Dr Tucker. In order to establish that an entitlement to an extension under s 31 of the Act Mr Walker must show:
That Dr Lynch’s changed opinion constituted a material fact;
That the material fact was of a decisive character such that his prospects of success justified bringing an action against Dr Tucker;
That the material fact of a decisive character was not within Mr Walker’s means of knowledge prior to 18 July 2017;
That there is evidence to establish a right of action against Dr Tucker; and
That there can be a fair trial of the matter, such that the Court’s discretion should be exercised in favour of the extension.
All of the above matters are in contention. There were also a number of evidential issues raised by the parties.
Section 31 of the Act provides:
“31 Ordinary Actions
This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
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—
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
that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
This section applies to an action whether or not the period of limitation for the action has expired—
before the commencement of this Act; or
before an application is made under this section in respect of the right of action.”
Section 30 of the Act defines the expressions “material facts relating to a right of action”, “of a decisive character” and “means of knowledge” as follows:
For the purposes of this section and sections 31, 32, 33 and 34—
the material facts relating to a right of action include the following—
the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
the identity of the person against whom the right of action lies;
the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
the nature and extent of the personal injury so caused;
the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
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
that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
a fact is not within the means of knowledge of a person at a particular time if, but only if—
the person does not know the fact at that time; and
as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.
In this section—
“appropriate advice”, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”
The High Court held in The State of Queensland v Stephenson that the phrase “material fact of a decisive character relating to the right of action” is to be interpreted as a composite phrase.
In Stephenson, the majority of the High Court stated that:
“The better view is that the means of knowledge (in the sense given by para (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have “a decisive character”. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say… that in a sense none of the material facts relating to an applicant’s right of action is of a decisive character until a reasonable person ‘knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing’ the features described in sub-paras (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.
The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interests (as in s 30(1)(b)).”
There are, according to the majority, two criteria to be considered in relation to s 31(2)(a). The first criterion looks at whether there are material facts relating to a right of action to which s 30(1)(a) is relevant. The second criterion to be considered, in determining whether a material fact is “decisive”, looks to the response of an actor. The Court is to consider the response of a reasonable person. In looking at this criterion, s 30(1)(b) is relevant. Section 30(1)(c) is relevant to determining what is within the means of knowledge of the applicant. What must not have been within the means of knowledge of the applicant until the relevant date is a material fact of a decisive character.
A material fact of a decisive character under s 30(1)(b) of the Act was said by P Lyons J in Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (in liq) & Anor to be a fact that first “would be regarded as showing that an action would, but for a defence based on the Limitation Act, have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of the action”, and secondly would along with other facts known to the potential claimant “be regarded as showing that the potential claimant should, in the person’s own interest and taking that person’s circumstances into account, bring an action on the right of action”. His Honour further noted that “[e]ach condition is to be regarded from the point of view of a reasonable person; and that person is taken to be a person who has taken ‘the appropriate advice on those facts’”.
In determining whether a material fact of a decisive character was not within the means of knowledge of a person at a particular time, the person must not have then known the fact, and so far as the fact was able to be found out by the person, the person must have taken all reasonable steps to find that fact out. Whether the steps taken are reasonable must be judged from the position of the person themselves. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably expected from the actual person in the circumstances of the applicant. The test is one which has both subjective and objective elements. In Pizer v Ansett Australia Ltd, which was referred to by Keane JA with approval in HWC v The Corporation of the Synod of the Diocese of Brisbane, Thomas JA referred to earlier observations of the Court in Healy v Femdale Pty Ltd as follows:
“The question whether such a person has taken all reasonable steps to ascertain the nature and extent of the injury
‘… depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability of effect upon her working capacity’.
There is no requirement, actual or notional, to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so. The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had.”
The evidence of Mr Walker
Ms Jarman has acted on behalf of Mr Walker since February 2014. She set out the history of the medical reports obtained. In particular:
Professor Dan, a neurologist, provided a report on 21 October 2014 stating that, amongst other things, Mr Walker’s paraplegia may have been avoided if treatment had been given between 7 and 8pm on 11 October 2013;
Dr Lynch in his report of 29 October 2014 expressed the opinion that the GP to whom Mr Walker had presented on 10 October 2013, Dr Mogg, had failed to act as a reasonably competent GP in her consultation with him or in her examination and subsequent treatment of him. However, he found that Dr Tucker’s consultation was of the standard of a reasonable and prudent general practitioner and his management was appropriate. On 17 October 2014 in a telephone conversation, Dr Lynch expressed the view to Ms Harman that he did not think Dr Tucker ought to have called an ambulance and had acted appropriately in the circumstances;
Associate Professor Raftos provided a report on 10 November 2014 in relation to the treatment of Mr Walker at the Ipswich Hospital, which he considered was deficient in a number of respects. In particular, he considered that Mr Walker should have been assessed and transferred by ambulance to the PA Hospital, which had a neurosurgical facility, by 15.30 at the latest; and
Dr Downes-Brydon in a report dated 10 February 2017, while providing an opinion as to Dr Mogg’s treatment of Mr Walker, stated that it would have been interesting to consider what the management would have been by Dr Tucker if he had not had access to onsite imaging. She further stated that a patient presenting with progressive back pain and sudden onset of neurological symptoms and signs is a situation of medical emergency which could justify immediate emergency ambulance transfer to a hospital with appropriate facilities to deal with neurological presentations. Her report, however, was confined to providing opinions on whether Dr Mogg, the GP who had previously seen Mr Walker, had acted to the standard reasonably expected from a competent GP.
Ms Jarman in a file note of 27 January 2017 recorded Dr Downes-Brydon stating that she would not have allowed a patient with paraesthesia to drive himself to hospital and raising whether Dr Tucker was a potential defendant, to which Ms Jarman noted that she would have to carry out further investigations. A second file note of the same day recorded that Dr Downes-Brydon stated, when told by Ms Jarman that Mr Walker’s partner had been waiting for him in the carpark, that while her preference was for a patient to go to hospital in an ambulance, it could be quicker for a patient to be driven. Dr Downes-Brydon was not so concerned by Mr Walker leaving the surgery if he had someone to drive him. She stated that she would have offered to call an ambulance and told Mr Walker to go to the hospital urgently.
Ms Jarman in a letter of instruction to Dr Downes-Brydon of 31 January 2017 stated that Mr Walker understood he should get to an emergency department as soon as possible and he therefore attended Ipswich Hospital, which was the closest to him.
Ms Jarman recorded speaking to Mr Walker on 3 March 2017 and informing him of Dr Downes-Brydon’s comments with respect to an ambulance. Ms Jarman’s record of that conversation referred to Mr Walker stating he recalls that Dr Lynch was unsupportive of the proposition that Dr Tucker should have called an ambulance. According to the note, Ms Jarman appears to have informed Mr Walker that Dr Downes-Brydon in a telephone conference had stated that, given Mr Walker had his own transport, it would be difficult to sustain an argument that Dr Tucker should have called an ambulance. Ms Jarman’s note recorded that Mr Walker was happy not to proceed against Dr Tucker.
Ms Jarman also sought an opinion from a triage nurse Ms Sharp in relation to conduct of staff at the emergency department of the Ipswich Emergency Hospital. Ms Sharp, a triage nurse, in a telephone conversation with Ms Jarman queried why Dr Tucker had not called an ambulance to transport Mr Walker to the PA Hospital and mentioned that a patient may not want to be transported due to the cost of calling an ambulance. Ms Jarman in a file note of the same day recorded Ms Sharp stating that Dr Tucker should have called an ambulance, even if his partner could drive him and he was told to go urgently.
On 17 July 2017, Dr Lynch was provided with further instructions. Those instructions included that Mr Walker instructed at that time that Dr Tucker had told him to go to an emergency department and that he and Dr Tucker had discussed his mode of transport, with Mr Walker informing Dr Tucker that his partner had driven him to the appointment and was waiting for him. Mr Walker instructed that the referral letter was given in a plain envelope and he did not read it. Mr Walker further instructed that he did not recall all of the matters that the second defendant (Ipswich Hospital) had pleaded were told to Mr Walker by Dr Tucker in its defence, namely that he had concerning signs, that the CT scan showed he had a swelling on his spine and that he needed to go to the PA Hospital directly because it had neurosurgeons onsite who could deal with his problem. He further instructed that he was shocked at hearing he had a growth or tumour on his spine and did not tell his partner because he was processing the information. It was not until they were at home that he told his partner that Dr Tucker said he had a growth on his spine and needed to go to the emergency department. His partner then contacted a friend to take him to the emergency department, and the friend took him to Ipswich Hospital, which was the closest hospital. Dr Lynch was also provided with instructions in relation to the circumstances in which patients have to pay for ambulance services in Queensland.
On 19 July 2017, Dr Lynch provided a further report. He stated that as a consequence of receiving further information and additional assumptions he considered he had to comment on a number of aspects. He changed his former opinion and stated that:
“It is my opinion that, because of the significance of the diagnosis and the duration of the symptoms in the specific circumstances of Mr Walker with his shock and inability to comprehend the potential seriousness of the condition and the need for attendance at a specific Accident and Emergency Department, Dr Tucker ought to have advised, recommended and ordered an ambulance to take Mr Walker directly to the Princess Alexandra Hospital. This would have prevented a man with an abnormal spine, on a CT scan, from walking out the front door of the medical clinic to then be driven around the suburbs, in private transport, whilst he attempted to process and come to grips with and understand those parts of the consultation that he heard and remembered. Calling an ambulance is what a reasonable and prudent general practitioner would have done and Dr Tucker, had he acted to the standard of a reasonable and prudent general practitioner acting to the standard of his peers at the time the service was provided, ought to have done.
My opinion has changed because I have now been provided with different facts and different assumptions.
Specifically the access to ambulance transport in Queensland and the information as to how Dr Tucker provided the information to the patient and Mr Walker’s subsequent travels around the community, in a shocked state, whilst attempting to process the information that he, alone, had been provided.
It is further my opinion that Dr Tucker ought to have involved Mr Walker’s partner in the discussion of such a serious condition to ensure that Mr Walker comprehended the complexity of his problem and its need for treatment “as an urgency”.
It was negligent of Dr Tucker to allow Mr Walker to travel around the community to various sites when the easy and appropriate access to free emergency ambulance transport was available. Dr Tucker simply had to make a telephone call to order an ambulance. This would have ensured Mr Walker was immediately and urgently transported to the appropriate environment of the Princess Alexandra Accident and Emergency Department with a preceding telephone call by Dr Tucker.”
On 27 July 2017, Dr Lynch provided a further report restating his changed opinion.
On 27 July 2017, Mr Walker’s solicitors wrote to Dr Tucker requesting copies of any statements Dr Tucker had provided to the solicitors for Ipswich Hospital, some 10 months after the Hospital’s solicitors had refused to provide any such statements, claiming privilege. Dr Tucker was not advised that Dr Lynch had provided an opinion stating that he considered that Dr Tucker had not acted as a reasonable and competent GP in not calling an ambulance. Nor was Dr Tucker told that, contrary to what Mr Walker’s solicitors had previously said, subject to instructions, a claim may be made against him.
On 2 August 2017, Dr Tucker provided Mr Walker’s solicitors with a copy of the statement he had provided to the solicitors for the second defendant.
On 3 August 2017, Ms Jarman attended Mr Walker by phone and informed him of Dr Lynch’s reports of 19 and 27 July 2017. Mr Walker instructed Ms Jarman to proceed with a claim against Dr Tucker. An initial notice of claim was served on Dr Tucker on the same day.
Dr Tucker’s lawyers obtained a report from Dr Bartels, who disagreed with the opinion of Dr Lynch that Dr Tucker had not acted in the manner of a reasonable and competent GP. Dr Bartels opined that calling an ambulance was not warranted. Dr Tucker’s lawyers also obtained a report from Dr Rothwell, a consultant emergency physician, who considered that it was reasonable of Dr Tucker to recommend private transport. He also expressed the view that it is unlikely that a diagnosis would have been made by the PA Hospital before 7:40pm if Mr Walker had gone directly to the PA Hospital or had been transferred to the PA Hospital earlier.
Dr Lynch provided a further report on 29 May 2018 in response to a report from Dr Bartels confirming his opinion. He stated it was not based on the question of the cost of calling an ambulance and would have been the same whether Mr Walker was eligible for free ambulance service transport or not. He stated “Ambulance transport was the appropriate method that Dr Tucker ought to have instituted in order to minimise the…‘delay in the diagnosis or instigation or [sic] appropriate antimicrobial treatment’”. In a further report dated 26 October 2018, Dr Lynch stated he considered Mr Walker should have been transported by ambulance given his symptoms, signs, abnormal CT and differential diagnoses. In that regard, Dr Tucker’s counsel submit that Dr Lynch has reached an opinion which is contradictory to his first report based on nothing other than the medical records with which he was briefed at the time of his first report.
Dr Tucker provided an affidavit in response to this application in which stated he had maintained some independent recollection of the relevant events on 11 October 2013 but his recollection of specific words and comments had faded over time. He stated, however, that he had a clear recollection of Mr Walker’s physical presentation and the general effect of the matters discussed and words spoken during the consultation. In particular, he considered that he had described the CT scan as showing that Mr Walker had a swelling on his spine, not a growth, and that he would have verbally explained the referral and made it clear that Mr Walker had to go to the PA Hospital to undergo the necessary neurosurgical review. He considered that Mr Walker understood what he was told. He is also certain that he provided the referral in a sealed window envelope, consistent with his usual practice. He also stated that he considered that Mr Walker could safely travel to hospital by private transport and it was not appropriate to request an ambulance in the circumstances.
Dr Tucker further stated that if he had been told that he was potentially going to be subject to a claim by Mr Walker, he would have sought advice or assistance, and would not have provided his statement to Shine Lawyers until he obtained the advice.
Dr Tucker also provided a report by Dr Simpson, a clinico-legal adviser to the Medical Indemnity Protection Society. He stated that if advice had been sought, he would have advised Dr Tucker not to provide a statement to the solicitors for the Ipswich Hospital or to then provide his statement to the applicant.
On 9 November 2018, Mr Walker provided a further affidavit in response to Dr Tucker. It disputed a number of matters in Dr Tucker’s affidavit as to what was discussed and what Mr Walker was told. Associate Professor Raftos also provided a report in response to Dr Tucker’s affidavit, stating that he considered that Dr Tucker should have called an ambulance to transport Mr Walker to the PA Hospital. Dr Lynch also provided a further report having regard to Dr Tucker’s affidavit, in which he maintained his opinion that Dr Tucker should have called an ambulance.
Dr Lynch did not provide an affidavit and was not made available for cross-examination, despite requests from Dr Tucker’s solicitors to make him available. Ms Jarman and Mr Walker were both cross-examined on behalf of Dr Tucker. The applicant did not cross-examine any of the respondent’s witnesses.
Dr Tucker has provided evidence and reports have been provided by Dr Bartels and Dr Rothwell disputing breach and causation.
Submissions of the parties: material fact of a decisive character
Mr Walker submits that Dr Lynch’s opinion in his report of 19 July 2017 was a material fact in the case of negligence against Dr Tucker for failing to call an ambulance.
It is submitted on behalf of Mr Walker that, before learning that Dr Lynch had changed his opinion and that Dr Lynch considered that Dr Tucker had fallen below the standard of a reasonable and competent GP, Mr Walker, like any reasonable person in his position, would not and should not have sued. Mr Walker contends that it only became reasonable to do so when the material fact of a decisive character, namely Dr Lynch’s changed opinion, came within his means of knowledge on 3 August 2018. Mr Walker’s counsel also submit that it was not a matter within his means of knowledge prior to that date. They state this position is supported by the fact that prior to being provided with the report by Dr Lynch Mr Walker could not have complied with the requirements of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”).
Dr Tucker contends that the critical date is 18 July 2017, as the proceedings were not issued until 18 July 2018. He contends that there is no material fact arising out of Dr Lynch’s opinion because his changed opinion was unsupported by a factual basis and is inadmissible, Mr Walker having adduced no evidence at the time of the subject consultation that Mr Walker demonstrated evidence of infection or any other “seriously ill state”. Dr Tucker submits that at the time, the clinical records showed that Mr Walker was afebrile and the CT report did not state there was any evidence of an infection as the source of the swelling. He contends that Dr Lynch’s opinion of 26 October 2018 changes the basis of his opinion again, yet draws on nothing other than the medical records with which he had been briefed at the time of his original medical report, in 2014. Dr Tucker contends that as a result of the progressive opinions of Dr Lynch in 2018, his opinion of 19 July 2017 is valueless and inadmissible because it is not based on reality. He contends therefore that there is no material fact to found the application for an extension of the limitation period.
Dr Tucker’s counsel contend that in any event Mr Walker cannot establish that the alleged material fact of a decisive character was not within his means of knowledge prior to the critical date. In particular, they contend that close scrutiny of the applicant’s letter of instruction to Dr Lynch of 17 July 2017 shows the applicant must have understood the purpose of obtaining Dr Lynch’s report directed to Dr Tucker’s management by, at the latest, 17 July 2017.
Mr Walker submits that while Dr Downes–Brydon had raised whether Dr Tucker should have called an ambulance, she had clarified in a conversation with Ms Jarman that the argument would be difficult to sustain if he had his own means of transport. In those circumstances, Mr Walker contends that no reasonable person in his position would have taken further steps to discover the material fact, given Dr Lynch’s opinion at that time was that there was no breach of the relevant standard by Dr Tucker, and Dr Downes-Brydon’s tentative opinion did not raise a reasonable prospect of success, which was supported by Ms Jarman in her discussions with Mr Walker.
Section 30(1)(a)(i) defines a material fact relating to a right of action as including the fact of the occurrence of negligence on which the right of action is founded.
Dr Lynch’s report of 19 July 2017 opining that Dr Tucker had been negligent could constitute a material fact relating to a right of action against Dr Tucker. In Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd, McMurdo J considered that an opinion, given in that case by a medical specialist, was a material fact relating to a right of action.
Dr Tucker, however, contends that the changed opinion of Dr Lynch is inadmissible and there is no material fact upon which Mr Walker can rely.
I do not consider that it has been established for the purpose of this application that Dr Lynch’s opinions of 2017 and 2018 are inadmissible and therefore that there is no evidence of the material fact. While criticisms of Dr Lynch’s change in opinion may be fairly made by Dr Tucker, I do not consider the reports are inadmissible. There is some support for Dr Lynch’s changed opinion in the evidence of Mr Walker, albeit not described in the same terms as Dr Lynch. Mr Walker stated he was in a lot of pain when he saw Dr Tucker and he went into a state of shock and did not fully comprehend what was said to him. The submission of Dr Tucker that there was no evidence that Mr Walker was not taking advice from Dr Tucker is not borne out, given that Mr Walker was getting advice from Dr Tucker as to his condition and how it was to be addressed. It is open to reasonably infer from the factual circumstances of the consultation and further steps to be taken, that advice would extend to the management of getting treatment. There is sufficient reasoning in the report based on medical expertise to explain the changed opinion even if it may be regarded as tenuous. As to the swearing of the issue of negligence by Dr Lynch, that is of course a matter for the Court and would be a matter of no weight.
As to Dr Lynch’s report of 29 May 2018, I do not find the report is inadmissible. The absence of a fever does not necessarily mean of itself that Mr Walker was not seriously ill, which is a matter upon which Dr Lynch’s opinion relied. There are clearly facts from which one may infer he was an unwell man and potentially seriously ill, given he was presenting with paraesthesia of both legs and back pain. Those matters will be the subject of no doubt considerable cross-examination at trial to determine whether the difference in terminology is a matter of semantics or substance, and whether Mr Walker could properly be described as having presented as being seriously ill or in a state of shock which affected his level of comprehension, in order to determine whether the opinion is supported by a proper factual basis. Dr Lynch’s opinion is not devoid of any factual support from Mr Walker’s evidence so as to render it inadmissible. Similarly, while Dr Lynch’s chain of reasoning as to why his opinion has changed may on its face be regarded as questionable in terms of what Dr Tucker should have done, it is not so devoid of reasoning as to render it inadmissible. The question of weight that may attach to his opinions at trial is a different matter or hopeless.
Similarly, I do not find the opinion in Dr Lynch’s report of 26 October 2018 is inadmissible.
I find that Dr Lynch’s opinion of 19 July 2017 was a material fact relating to a right of action.
In Mr Walker’s case the provision of Dr Lynch’s changed opinion was decisive and was, in the circumstances, a material fact of a decisive character. Until that point in time he did not have evidence supporting a right of action against Dr Tucker that had reasonable prospects of success. Dr Downes-Brydon raising the question of why an ambulance was not called and her subsequent clarification was insufficient to raise a material fact of a decisive character. Given her subsequent clarification in the telephone conversation with Ms Jarman which I accept was given, it was little more than an opinion by a medical practitioner saying she would have approached the matter differently and was not an opinion that Dr Tucker had failed to reach the requisite standard of care and was therefore negligent. Dr Lynch had given a clear opinion in 2014 that Dr Tucker was not negligent and had confirmed his opinion when asked by Ms Jarman whether that was the case in relation to the failure to call an ambulance. A reasonable person who took appropriate advice on the facts known to Mr Walker prior to receiving Dr Lynch’s report with the changed opinion would not have regarded those facts as showing that he had a right of action with reasonable prospects of an award of damages sufficient to justify bringing an action. While, as Dr Tucker’s counsel submit, a medical opinion supporting a breach of duty is not necessary to bring proceedings, in these circumstances, without such an opinion a reasonable person taking appropriate advice would not have regarded those facts as showing that the action had any reasonable prospects of success, given Mr Walker had previously been given a contrary opinion.
While the circumstances were somewhat different from the present case, Mr Walker’s case does receive some support from the decision of the Court of Appeal in Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd, which held that the medical opinion given in that case that the plaintiff had a serious and permanent injury was a material fact of a decisive character. Their Honours found this to be the case notwithstanding that the plaintiff had believed that his back pain was caused by the accident prior to receiving the medical opinion. Justice McMurdo at  to  stated that:
“ In terms of s 30, the question is whether a reasonable person in his position, having taken appropriate advice, would have thought that an action brought by him, but unsupported by opinion evidence, would have a reasonable prospect of success and of resulting in a worthwhile award of damages, such that he ought to bring that action. The appellant argues that appropriate advice from a solicitor would have been that the respondent had a worthwhile cause of action which he should pursue and, indeed, that specialist opinion was not only unnecessary but “could not add anything of worth to the case”.
 It is possible that this right of action, and in particular the existence of a serious and permanent back condition caused by the 1995 accident, could be proved at a trial with on the assistance of opinion evidence. But the question is whether a reasonable man in the respondent’s position would have thought that he should sue without it. That depends upon what advice to him would have been appropriate. That advice would have been given not in a circumstance where there had been no expressed medical opinion, but where there had been opinions which were in some cases adverse to his cause and in others were equivocal. The medical opinion in 1995 was that he would be able to return to work on full duties (as he did) and that he would have no permanent disability. The medical opinion he obtained in 2003 was at best inconclusive; in particular the general practitioner who saw him on 24 April 2003 was unable to explain the pain of which he was complaining. And the appropriate advice would have had regard to his work history. He had worked for nearly six years in a full time position as a storeman. He did not leave there because of any back problem and it was only after some months of unemployment that he said that he was beginning to experience any significant symptoms. As I have mentioned, he had not seen a doctor or taken any medication for years. Absent any opinion evidence which supported what he was saying, it could hardly be said that he had a promising case. Appropriate advice would have been that he would be unlikely to prove more than a temporary injury from the accident, from which there was no significant effect by the end of 1995 and which would not result in a worthwhile award of damages. He would not have been appropriately advised that he could prove that he was unable to work in 1996. By then, he had been working without restriction for months, as he did for any years subsequently.”
Until Dr Lynch provided his changed opinion, Mr Walker had been positively advised that his opinion was that Dr Tucker had acted as a reasonable and prudent general practitioner.
Dr Tucker’s counsel made oral submissions that Dr Downes-Brydon’s report was itself a material fact of a decisive character, or that it brought within Mr Walker’s knowledge the material fact later contained in Dr Lynch’s report. I do not find either of those matters to be substantiated on the facts.
Ms Jarman, Mr Walker’s solicitor, gave evidence and was also cross-examined. Her evidence was that she did not consider based on Dr Downes–Brydon’s report and her oral opinions that a claim against Dr Tucker on the basis of a failure to arrange transport would have reasonable prospects of success.
She states that she also considered that she was not able to give Dr Tucker a notice of claim that complied with the PIPA because she did not have a written report from a medical specialist stating that in the specialist’s opinion there was a failure on the part of Dr Tucker to meet the appropriate standard of care in providing medical services to Mr Walker. I address the significance of that matter below.
“…If Steve had been driven to the appointment and someone was waiting for him in the car, Dr D-B would not be so concerned about him leaving the surgery by his own transport….Her preference would be for a patient to go to hospital by ambulance but recognised that in some circumstances, it is quicker for a patient to go in their own car than wait for the ambulance. She would have told Steve to go to hospital as a matter of urgency and offered to call the ambulance. If the patient was insistent on going in his own transport she would ask again about the ambulance but would be happy for him to go in his family member’s car.”
Dr Downes-Brydon’s report of 10 February 2017 stated that:
“…a patient with progressive back pain and the sudden onset of neurological symptoms and signs is a situation of medical emergency and could very well justify immediate emergency ambulance transfer of the patient to a Hospital Emergency Department…”
Ms Jarman’s file note of 3 March 2017 states:
“I will send him the report of Dr Downes-Brydon and discussed her comments regarding Dr Tucker. Steve recalled that we had looked into whether he should have called an ambulance and Dr Lynch had been unsupportive. Dr Brydon had raised criticisms that Dr Tucker didn’t call an ambulance but in telephone conference had said that given Steve had his own transport, this argument would be difficult to sustain. Steve was happy not to proceed against Dr Tucker…”
I accept that Ms Jarman did have conversations to the effect described in the file notes with Dr Downes-Brydon and Mr Walker.
It is submitted on behalf of Mr Walker that Dr Downes-Brydon’s report must be seen in the context of what was discussed with Ms Jarman. Ms Jarman’s evidence was that as a result of her conversation with Dr Downes-Brydon, in which Dr Downes-Brydon stated that it would be difficult to sustain an argument that Dr Tucker was negligent in failing to call an ambulance given he had private transport, and Dr Lynch’s original opinion, she did not consider that Mr Walker had reasonable prospects of success sufficient to justify bringing an action.
While questions had been raised by Dr Downes-Brydon given the clarification she gave to Ms Jarman and the terms of the written report, properly characterised her comments about Dr Tucker and the question of calling an ambulance was only an expression of personal, practice not one based on the practice of general practitioners, and a reasonable person having received appropriate advice would not have regarded the concatenation of facts as showing a reasonable prospect of success.
I consider that a reasonable person in Mr Walker’s position, who had received the original opinion from Dr Lynch that Dr Tucker had not been negligent and who was advised that Dr Downes-Brydon considered that it would be difficult to sustain an argument that the failure to call an ambulance was negligent would not have considered that he had reasonable prospects of success and should issue proceedings in his own interests.
To the extent that Dr Tucker’s counsel submit that the Court should find that Dr Downes-Brydon’s report was itself a material fact of a decisive character regardless of the further report of Dr Lynch, I reject that submission.
The further question that must be considered is whether the matters raised by Dr Downes-Brydon properly raised matters which should have caused Mr Walker to take reasonable steps to discover the material fact the subject of Dr Lynch’s changed opinion at an earlier point in time. In that regard, the counsel for the defendant submitted that Ms Jarman had intended by giving further instructions to Dr Lynch to obtain an opinion in order to bring proceedings against Dr Tucker arising out of the matters raised by Dr Downes-Brydon and that Mr Walker knew that that was the purpose and intention of the letter of instructions. In any event, it contends that as a result of Dr Downes-Brydon’s opinion reasonable steps should have been taken by Mr Walker which were not taken and the material fact was within his knowledge prior to 18 July 2017.
I do not find that Mr Walker failed to take reasonable steps to ascertain the material fact prior to 18 July 2017. Mr Walker briefed solicitors promptly after the events in October 2013. Proceedings were subsequently issued against Dr Mogg and the Ipswich Hospital. A report was sought from Dr Lynch as to whether Dr Tucker had breached his duty in his care of Mr Walker and Dr Lynch found that he had not. Dr Lynch specifically stated he did not consider Dr Tucker had failed to discharge his duty by not calling an ambulance. Proceedings against Dr Mogg and the Ipswich Hospital were issued following the carrying out of relevant steps required by the PIPA in 2016. In January 2017, Dr Downes-Brydon raised the question of whether Dr Tucker should have called an ambulance and expressed the view that she would have in the circumstances. I accept that, upon clarification, she had, however, stated the argument would be difficult to sustain and this had been relayed to Mr Walker. Dr Downes-Brydon was not asked by Mr Walker’s solicitors to express any view as to Dr Tucker’s treatment, nor did she state in her report of February 2017 that Dr Tucker was negligent. I accept that Mr Walker was advised of the discussions with Dr Downes-Brydon in January 2017 in relation to the calling of the evidence and instructed that he was happy not to proceed against Dr Tucker.
He did not fail to take reasonable steps in not instructing his solicitors to obtain a further opinion from Dr Lynch at that time in March 2017. In May 2017, Ms Sharp raised the question of why Dr Tucker had not called an ambulance to transport Mr Walker and noted some patients would not want an ambulance called because of the cost. Ms Jarman subsequently determined that the further issues relating to the calling of an ambulance raised by Dr Downes–Brydon and Ms Sharp should be raised with Dr Lynch on 12 July 2017. Ms Sharp raised a further fact in relation to the cost of ambulance transport that may have affected Dr Lynch’s opinion.
Reasonable steps were taken to obtain a further opinion from Dr Lynch to see whether his opinion changed in light of the further information from Ms Sharp in addition to the matters raised by Dr Downes-Brydon. Prior to the changed opinion of Dr Lynch it is unlikely he would have received any advice that he should sue Dr Tucker or that he had reasonable prospects of success, given the views expressed originally by Dr Lynch and then by Dr Downes-Brydon and given Ms Sharp’s lack of expertise to express an opinion of the conduct of a GP.
I find that Ms Jarman’s evidence was candid and do not accept that she had sought to avoid disclosing matters material to this application. I do not infer from the fact Ms Jarman did not disclose the note of her conversation of her discussion with Mr Walker until after she had provided the first affidavit that she did not discuss the views of Dr Downes-Brydon with Mr Walker, or that she did not receive instructions not to proceed against Dr Tucker at that time. It was not put to her in cross-examination that she had not received those instructions. She rejected the suggestion that she had received subsequent instructions from Mr Walker to investigate the claim against Dr Tucker and stated that she had sought to clarify Dr Lynch’s opinion in light of further information, particularly about ambulance services which she had been alerted to by Ms Sharp. She stated that she sought the updated information from Dr Lynch because she wanted to ensure that he had all of the correct information and remained of his opinion. While she accepted that the information in the letter of instruction to Dr Lynch was more extensive than that contained in a statutory declaration provided by her client she stated she had had a number of conversations with Mr Walker over the course of the claim and she had not found any file notes of a conversation with Mr Walker prior to July 2017. She rejected the suggestion that by 12 July 2017, when she had a discussion with counsel regarding issues relating to Dr Tucker, that she was contemplating suing Dr Tucker. She stated she was contemplating sending further documents to Dr Lynch to consider whether he had adequately addressed everything in his previous reports. She stated that the letter to Dr Lynch raised issues with respect to Dr Mogg as well as Dr Tucker. She denied that she knew that Dr Lynch would change his opinion after speaking to him with Mr Walker’s counsel on 12 July 2017. She further clarified the exchange that had occurred in re-examination.
Mr Walker was cross-examined particularly as to the provision of instructions by him. In particular, he accepted that the letter of instruction to Dr Lynch dated 17 July 2017 contained greater detail than his statutory declaration of 25 June 2015, given in response to a letter from Corrs Chambers Westgarth dated 20 March 2015. He could not recall when he gave the further details to his solicitor that were contained in the letter of 17 July 2017, noting that he had spoken to his solicitor a number of times. Mr Walker in cross-examination could recall discussing Dr Lynch’s first opinion with Ms Jarman and whether an ambulance was called, but did not recall having discussions with Ms Jarman in relation to advice received from Dr Downes-Brydon, although he accepted he could have. He could recall giving instructions to Ms Jarman not to issue proceedings against Dr Tucker in March 2017. He accepted in cross-examination that he was advised in March 2017 that there was an expert who was critical of Dr Tucker for not calling an ambulance and that he had given instructions to his solicitor to investigate making a claim against Dr Tucker. It is not clear, however, reviewing his cross-examination that he was referring to Dr Downes-Brydon’s opinion that it was the critical opinion. When asked whether Dr Downes- Brydon was one of the doctors who was being canvassed at the time he could not recall her name. His evidence was, however, that he did not recall receiving the report of Dr Downes-Brydon but said he may have, and that he did not recall whether he had read the report. He then proceeded to agree that information was provided by him for the letter of instruction between when he received the report of Dr Downes-Brydon and the 17th of July 2017.
In his first affidavit, Mr Walker stated that it was not until he received Dr Lynch’s reports and spoke to Ms Jarman that he became aware that Dr Tucker had acted negligently in not calling an ambulance. That statement was not the subject of cross-examination.
I find both Ms Jarman and Mr Walker were honest in the evidence they gave. Given Mr Walker’s confusion, however I accept the evidence of Ms Jarman is more accurate as to the sequence of what occurred after receiving Dr Downes-Brydon’s report up until sending instructions to Dr Lynch on 17 July 2017. Her evidence was consistent with a contemporaneous file note of her conversation with Mr Walker on 3 March 2017 following her discussions with Dr Downes-Brydon and the receipt of her report of 10 February 2017. Further, while there was some further detail contained in the letter of instructions to Dr Lynch of July 2017, it was generally consistent with the information provided in Mr Walker’s statutory declaration. Further, Dr Downes-Brydon’s report could not be fairly described as critical of Dr Tucker. It is more likely he was confused with the changed opinion of Dr Lynch and Dr Downes-Brydon. Ms Jarman also referred to obtaining further instructions from Mr Walker to respond to the defence of the Ipswich hospital.
I accept that Ms Jarman was seeking to clarify Dr Lynch’s opinion by providing further information when instructing Dr Lynch in July 2017. Her letter of instruction which asked him to state why he had changed his opinion contemplated that a change of opinion might be the outcome of further queries, however, I do not find that she knew prior to 17 July 2017 that his opinion would change. It is clear that her letter of instruction contained more detail than had previously been provided to Dr Lynch or was in Mr Walker’s statutory declaration. I consider that further detail was provided to ensure that all matters that could be relevant to Dr Lynch’s opinion were raised, given the matters that Dr Downes-Brydon and Ms Sharp had raised with Ms Jarman. I accept Ms Jarman’s evidence that the catalyst for doing so was particularly the matters raised by Ms Sharp highlighting the differences between States as to payment for ambulance transport but it extended to canvass the issue of calling an ambulance. The factual instructions, however, were directed to the conduct of Dr Tucker. Notably, the letter of instruction also raised issues in relation to Dr Mogg’s conduct rather than being limited to Dr Tucker’s conduct. Ms Jarman stated that she had obtained information from her client over the course of the claim, including for the statutory declaration he made and in response to the defence of the Ipswich Hospital, but accepted that she may have clarified matters with him prior to sending instructions to Dr Lynch. She had a clear recollection of being told much of the detail in the letter of instruction of 12 July 2017 over the course of the proceedings. I find that to be the case. She may have obtained some further detail from Mr Walker prior to sending the letter but not to a significant degree, which is supported by the evidence of Mr Walker. Mr Walker supported the fact that he had multiple conversations with Ms Jarman throughout the history of the proceedings. He assumed he had given instructions for the letter of 17 July 2017, but did not recall whether he had in fact done so. He recalled giving details contained in the letter but stated that he had spoken to his solicitor in detail many times. His concession that he gave much of the detail in the last half to two thirds of the front page of the letter of 17 July 2017 is not in fact borne out by the matters outlined on that page as a number of those matters were in his previous statutory declaration. I do not find that Mr Walker understood the intention and purpose of obtaining Dr Lynch’s report by the time of the instructions of 17 July 2017 was in order to bring proceedings against Dr Tucker. Ms Jarman’s file note of 3 August 2017 is consistent with him not being told of the purpose in obtaining a further report from Dr Lynch prior to 19 July 2018, and further supports her evidence as to what occurred.
I accept that Ms Jarman did not know prior to 17 July 2017 that Dr Lynch was going to change his opinion. I do not find that Mr Walker had given instructions to Ms Jarman before Dr Lynch’s report of 19 July 2017 to investigate a claim against Dr Tucker, although he may have provided some further information to Dr Lynch.
While the question of whether an ambulance should have been called had been a matter which was raised with Dr Lynch in 2014 and subsequently was raised by Dr Downes-Brydon and Ms Sharp, I find that it was not until 19 July 2017 that the material fact that an expert considered opining that Dr Tucker had been negligent in not calling an ambulance to the PA Hospital came within Mr Walker’s means of knowledge. That material fact did not come within his actual knowledge until 3 August 2017.
In my opinion, a reasonable person knowing what Mr Walker did know by the critical date and with appropriate advice on those facts would not have regarded them as showing that he had a reasonable prospect of success at obtaining an award of damages sufficient to justify the bringing of the action, such that he ought to have sued in his own interests. However, in light of Dr Lynch’s changed opinion, the appropriate advice would have been that there was a cause of action worth pursuing. Dr Lynch’s changed opinion therefore was a material fact of a decisive character.
Dr Tucker’s counsel rely on the decision of Wolverson v Todman in support of their contention that the material fact was within Mr Walker’s means of knowledge. That case is distinguishable from the present. Instructions were given to Dr Lynch to consider the matter further within a reasonable time from Ms Sharp raising the matter in May 2017. The appellant in Wolverson was informed by her solicitor of what was needed to ascertain the connection between a surgery and the alleviation of symptoms. The appellant knew that an expert opinion was required from a radiologist and did not take the steps reasonably expected to obtain it, but rather waited for the outcome of the original MRI scans such that the reports were obtained some 17 months after they could reasonably be expected to be obtained, in circumstances where the Court found that deferring the obtaining of the opinions was not reasonable. The same cannot be said of Mr Walker.
It was submitted on behalf of Mr Walker that Dr Downes-Brydon’s report could not constitute a material fact of a decisive character because it would not have been a report which could have been served with a Part 1 notice of claim under the PIPA. That argument is misconceived. The requirements of the PIPA do not inform the threshold of whether a fact is of a “decisive character”. The question of whether a report could satisfy the requirements of the PIPA is not relevant to the question to be determined under s 31 of the Act. It is not the same statutory test. In any event, notice could have been given under the PIPA without a report.
Right of action
The applicant does not, in order to establish a right of action, have to produce the actual evidence to be adduced at trial or evidence in an admissible form. Hearsay evidence may be used. The evidence must, however, be sufficient for the Court not to be required to “imagine circumstances or put together a case which is not justified by evidence or apparent evidence”.
Dr Tucker’s counsel contend that Mr Walker has failed to provide evidence supporting a prima facie negligence action against Dr Tucker.
Dr Tucker submits that there is no evidence of breach given Dr Lynch’s contrary opinions in 2014 and 2018. Dr Tucker’s counsel contend that Dr Lynch’s opinions, in circumstances where he disavowed his reliance on ambulance transport being free as a reason for his change of opinion, are two entirely contrary opinions premised on the same facts and therefore Mr Walker cannot establish any substantive case of breach of duty on the part of Dr Tucker. However, Dr Lynch’s changed opinion did not only rely on ambulance transport being free, but also referred to Mr Walker’s state of mind at the time he saw Dr Tucker as providing a further reason that an ambulance should have been called, as well as the serious nature of his illness. It is not correct to contend, as is contended on behalf of Dr Tucker, that the opinions provided in 2014 and the opinion of 26 October 2018 rely upon precisely the same material facts. No instructions were provided to Dr Lynch as to Mr Walker’s state of mind in 2014. Mr Walker also provided affidavit evidence in relation to this application that the discussion with Dr Tucker was emotionally charged, he was in a lot of pain and wanted the pain to stop and he felt like his brain was overloaded, which is open to characterisation as being in a state of shock.
There is no doubt that Mr Walker may have considerable challenges in convincing a Court to adopt the changed opinion of Dr Lynch, however, if his changed opinion is accepted, it establishes a prima facie case of breach. Further, Professor Raftos’ report dated 26 October 2018 also supports Dr Lynch’s opinion that Dr Tucker should have called an ambulance.
Dr Tucker also contends that there is no admissible evidence to establish that any breach of duty on the part of Dr Tucker was causative of Mr Walker’s loss. In this regard, Dr Tucker relies on the report of Dr Rothwell. Dr Rothwell provided his opinion on various hypotheses as to when treatment would have been given, including that he did not think it was likely that the applicant would have the results and could have been operated on before 7:40PM. That report relied on various assumptions as to when Mr Walker would have been seen, the priority he would have been given, the time an MRI would have occurred and the time subsequent treatment would have taken place. Dr Tucker in particular relies on the fact that there was no cross examination of Dr Rothwell. Dr Rothwell’s report estimated what he considered would have taken place at the PA Hospital based on his experience as a Director of Emergency and Trauma at RBWH, Greenslopes Private Hospital and Uniting Health Care. While Dr Rothwell is clearly very experienced, his opinion was not based on experience at the PA Hospital specifically, nor any other factual evidence as to the PA’s operations. It was therefore based on assumption. In particular, Dr Rothwell stated that it would have been appropriate for Mr Walker to undergo an MRI scan and the time at which it would be undertaken at the PA Hospital would depend on their workload. However, he considered it was unlikely that the MRI would have been performed before 7:40PM, notwithstanding his estimate that Mr Walker would have been assessed at 5:30PM. In his assessment, Mr Walker’s condition would not have been regarded as being time critical until he displayed significant neurological deterioration at about 7:40PM, that being the time at which he was assessed at Ipswich Hospital. In that regard, I note that Professor Raftos expressed the view that Mr Walker should have been triaged to Category 2, not Category 3 as Dr Rothwell opined.
In terms of causation, Mr Walker relies on the report of Professor Dan, which opined that the latest point at which treatment would have avoided paraplegia was if it had been administered between 7 and 8pm on 11 October 2013. The evidence of the damage caused by the injuries has also been the subject of evidence. Mr Walker’s evidence was that Dr Tucker’s practice was about a 10 minute drive from his home. There is also evidence that it took an ambulance approximately 33 minutes from the time it left the Ipswich Hospital to arrive at the PA Hospital, where the ambulance came approximately a half an hour after being called. Based on the evidence that Mr Walker left Dr Tucker’s surgery at approximately midday, if an ambulance would have taken an hour and fifteen minutes to take Mr Walker from Dr Tucker’s surgery to the PA Hospital, Mr Walker would have arrived at the hospital between 1:15PM and 2:00PM. That is given some support by Dr Tucker’s evidence that he believed he rang the hospital at 1:09PM to see whether Mr Walker had arrived.
Upon arriving at the PA Hospital, the evidence shows that Mr Walker was assessed, had an MRI and was operated on approximately three hours and 29 minutes after his arrival at the PA Hospital. While Mr Walker’s presentation at the PA Hospital was after his condition appeared to have deteriorated, there is, given Dr Tucker’s referral requested the plaintiff to be seen urgently, Professor Raftos’ opinion as to how he should have been triaged, Professor Dan’s opinion, and the time it took for Mr Walker to be assessed upon his arrival at the PA Hospital, evidence from which it may be reasonably inferred that Mr Walker would have had surgery prior to 8pm if he had arrived between 1:15PM and2:00PM, even accepting there may have been some delay because his symptoms were less severe. There is evidence which, if uncontradicted, could establish a prima facie case of causation.
The submission that there was no evidence as to causation in relation to Mr Walker’s case is incorrect. Nor does Dr Rothwell’s report render the case as to causation hopeless. Dr Rothwell’s report itself relies on a number of assumptions which will have to be established by a factual basis which presently is not in evidence.
In my view, Mr Walker has established a prima facie case of the right of action.
Dr Tucker also provided a report of Dr Bartels which opined that Dr Tucker had acted as a reasonable and prudent general practitioner in the circumstances.
Counsel for Mr Walker contend that the opinions of Dr Bartels and Dr Rothwell should be ruled inadmissible because an application under s 31 does not require the plaintiff to call evidence to rebut evidence of the defendant. In that regard, they rely on the approach of Macrossan CJ in Wood v Glaxo Australia Pty Ltd and, in particular, his Honour’s stated that:
“…it is probably accurate enough to say that the 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.”
Counsel for Mr Walker did however accept that the strength of Mr Walker’s case is relevant to the exercise of the Court’s discretion. The opinions of Dr Rothwell and Dr Bartels are therefore admissible on that basis.
Dr Tucker’s counsel contends that Wood v Glaxo Australia Pty Ltd is no longer good law, in light of the High Court’s statement in Davison v Queensland. That statement, however, is an acknowledgement by the majority of a submission of the appellant that s 31(2) applications often involve the filing of extensive affidavit material on questions of duty, breach, causation and quantum and cross-examination on the affidavits, which can affect the question of whether there is a right of action. It does not state how that material affects the relevant questions nor does it state that a different test must be met to establish a right of action under s 31(2)(b) of the Act. In that regard, I note that Gotterson JA in Wolverson v Todman did not raise any question about the requirement to establish a right of action at the level required by the test in Glaxo and indeed followed it. Holmes JA agreed with his Honour’s reasons. Given my findings above, it is however not necessary for me to finally determine the question for the purposes of this decision. The fact that as outlined above there was evidence as to breach and causation before the Court supporting the case of Mr Walker, the failure to cross-examine Dr Rothwell and Dr Bartels in those circumstances, and the fact the nature of the application under s 31 of the Act is not tantamount to a trial do not lead to a conclusion that the evidence as to breach and causation provided by Dr Tucker was unchallenged.
That said, the establishing of the preconditions in s 31(2) of the Act does not give rise to a presumptive entitlement to the exercise of the Court’s discretion, which is a matter which is considered separately below.
Should the Court’s discretion be exercised in favour of granting an extension?
If the preconditions for the extension were satisfied by the applicant, the applicant must then show that there can be a fair trial. As the High Court has recognised, a presumptive prejudice arises as a result of the delay in instituting proceedings after the expiry of the limitation period. There is, however, an evidential onus on the respondent to show actual prejudice of which it is aware such that it can no longer fairly defend the proceedings. The relevant question is whether the delay has made the chances of a fair trial unlikely. To the extent that Dr Tucker submitted that the strength of the plaintiff’s case is relevant to the exercise of discretion that was conceded by Mr Walker’s legal team, but on the proviso that an application under s 31 of the Limitation of Actions Act does not require a plaintiff to prove its case at trial. That accords with accepted principle in relation to applications such as these.
Mr Walker submits that the delay in the present case has not made the chances of a fair trial unlikely and that the discretion should be exercised in favour of the granting of the application. In particular, Mr Walker contends that the relevant evidence was preserved by the prompt taking down of statements and there are extensive medical records, which mean a fair trial can be conducted despite proceedings being commenced outside the normal period of limitation. Mr Walker also submits that his case is largely based on details and opinions that cannot be eroded by time, such as the objective fact of Dr Tucker’s failure to call an ambulance or his failure to ensure that Mr Walker arrived at the correct hospital on time.
Mr Walker also contends causation arguments turn on matters that have no connection to peoples’ memories or other factors that could have diminished by the time that has passed.
Dr Tucker’s counsel, however, contend that if the claim is permitted to proceed Dr Tucker will suffer prejudice arising from the general effects of delay, including the inability to recall conversations which are suggested to be of importance, in circumstances where Mr Walker advances a case based on the subtleties of impressions and expressions used many years ago. Dr Tucker’s counsel also contend that Dr Tucker will suffer prejudice other than that arising from the general effects of delay, by virtue of the circumstances in which the solicitor acting for Mr Walker procured a privileged statement from Dr Tucker, which deprived him of the opportunity to obtain appropriate advice before providing the privileged material to Mr Walker’s solicitors.
In that regard, it is uncontentious that Dr Tucker was sent correspondence by Ms Jarman on 27 July 2017, who requested that he provide her with any statements he had provided to solicitors acting on behalf of the Ipswich Hospital or, if he would not provide those statements, that he state whether he considered paragraphs 9(d)(i)-(iii) of the defence provided on behalf of the Ipswich Hospital accurately reflected his consultation with the client. Dr Tucker provided the statements that he provided to the solicitors for Ipswich Hospital. He states he would not have done so, however, without seeking advice or assistance from his medical defence organisation or legal representative if he had known he would potentially be the subject of a claim by Mr Walker. He stated that he similarly would not have provided a statement regarding the nature and extent of the subject consultation with Mr Walker to the solicitors acting on behalf of the Ipswich Hospital if he had known that he was potentially the subject of a claim by Mr Walker.
“In considering the exercise of the discretion under s 48(3) of the Limitations Act, two fundamental propositions established by this Court’s decision in Brisbane South Regional Health Authority v Taylor must be borne in mind. First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision. In Brisbane South Regional Health Authority v Taylor, McHugh J said:
‘The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’.”
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension.” (internal references omitted)
Dr Tucker contends that the provision of the statement by Dr Tucker to Mr Walker’s solicitors is additional prejudice suffered by Dr Tucker relevant to the exercise of the Court’s discretion. In particular, Dr Tucker states that it is relevant to the administration and interests of justice and relies on Prince Alfred College Inc.
The majority in Prince Alfred College Inc stated that it was an error of principle for the Courts below not to regard the arrangements made by the respondent with the school as significant. In that case, the applicant decided after obtaining legal advice not to sue the respondent, the school, and accepted its offer to pay his medical and legal fees to that date and his son’s school fees for the next three years. He commenced proceedings in relation to abuse by a teacher against the school some 11 years after acceptance of the school’s offer and over 40 years after the events the subject of the proceedings had occurred. A number of persons who may have been witnesses had died or were unable to give evidence and the psychologist whom the applicant had first consulted in 1996 had destroyed his notes. The majority stated that “[w]here an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest”. Their Honours noted that the oppression arising from bringing an action so long after the events which gave rise to the action have passed is aggravated where a party conveys the impression that he or she will not bring the proceedings on certain terms, and then, when those terms are met, changes his or her mind.
In the present case, Mr Walker had made a deliberate decision not to commence proceedings against Dr Tucker based on the medical opinions received at the time and had communicated the fact that no such claim would be made in 2015.
I accept Dr Tucker has suffered some prejudice arising from the fact that Dr Tucker was given an assurance that he would not be the subject of a claim and, in reliance on that assurance, provided a witness statement that he had previously provided to the solicitors for the Ipswich Hospital without seeking advice is of some relevance, as it shows that Dr Tucker took steps potentially to his detriment, by not seeking advice prior to doing so.
Having given the matter careful consideration, I do not, however, find it has caused significant prejudice to Dr Tucker precluding a fair trial. While Mr Walker was not entitled to a copy of the statement, Dr Lynch had given a statement to the solicitors for the Ipswich Hospital and it had been in part pleaded in the defence of Mr Walker’s proceedings by the Ipswich Hospital. He also provided an affidavit in these proceedings. The statement addresses matters of fact. While Mr Walker states that he would not have provided the statement previously provided to the solicitors for Ipswich Hospital without the assurance from Mr Walker’s solicitors, there is no evidence such an assurance was given by Ipswich Hospital that it would not join him. The statements were not provided to any of Mr Walker’s experts for the purposes of them providing an opinion relevant to this application. To the extent there is any loss of privilege that may arise, that privilege lies in the hands of the Ipswich Hospital and not Dr Tucker. I do not consider that the statements disclosed by Dr Tucker create any significant prejudice to Dr Tucker, although it may give rise to the identification of possible prior inconsistent statements. Dr Tucker has however sworn an affidavit in this application deposing in detail as to what occurred in his consultation with Mr Walker.
Dr Tucker has urged the Court to make a finding against Ms Jarman that, in procuring the statement, she acted in breach of the Australian Solicitors’ Conduct Rules 2012 (Qld). In my view, such a finding is not necessary nor relevant for the determination of these proceedings.
I accept that questions may legitimately be raised about the fact that the solicitor for Mr Walker made the request of Dr Tucker to obtain his statement after she had received the opinions of Dr Lynch, and without putting him on notice that she could no longer assure him that no claim would be made against him. However, any finding as to whether that conduct constitutes a breach of the Australian Solicitors’ Conduct Rules 2012 (Qld), which would pertain to Mr Walker’s solicitor and not to Mr Walker, is not, in my view, relevant to the determination of whether the discretion should be exercised in favour of the extension of time being granted.
The matters which indicate that Dr Tucker can have a fair trial are the fact that the medical records are still in existence and that he has been able to obtain some expert reports, the authors of which did not identify any difficulty with providing an opinion due to incomplete records. His recollection of events on the day of the consultation with Mr Walker, although no doubt affected by delay, is still reasonable and not significantly impaired by the passing of time. I do not consider any prejudice suffered from the fact that the impressions of Mr Walker’s presentation are no longer as clear as they were is significant. He was also aware to some extent of the proceedings which are on foot between Mr Walker and Dr Mogg and the Ipswich Hospital and had recorded some of those events in a preliminary statement to the Ipswich Hospital.
The matters which indicate that Dr Tucker could not have a fair trial are the presumptive effect of the delay on the evidence, with almost six years having passed since the events in question, and that there is some evidence that Mr Walker and his recollections have faded in some respects, although the evidence does not suggest that is significant and would impede a fair trial. As set out above there is also the prejudice he has suffered by the fact that he was assured that no proceedings would be brought against him. However other than the provision of the statements to Mr Walker outlined above I do not consider that prejudice is significant in terms of Mr Walker being able to conduct a fair trial. The delay in Prince Alfred College Inc, was far greater than the present case and there was significant evidence that had been lost. That is not the case here. Further there is good reason for the change in Mr Walker’s position, namely that Dr Lynch and subsequently Professor Raftos have opined that Dr Tucker was negligent contrary to the original opinions given when Dr Tucker was informed he was not a potential defendant.
Dr Tucker has provided evidence showing he has a strong defence to the proposed claim against him by Mr Walker. That supports the fact a fair trial can be conducted. The evidence provided on behalf of Mr Walker, while it has weaknesses as identified above, is not such as to satisfy me that a fair trial cannot be conducted and that the Court’s discretion should be exercised against granting the extension. The fact that a case as presented in an application such as the present is a weak one has some relevance to the exercise of the discretion, but it must be borne in mind that the authorities with respect to s 31 of the Act do not require that a plaintiff present all evidence that they would present at trial or even present the evidence in an admissible form. I am satisfied that the applicant has shown that there can be a fair trial.
I am satisfied that the preconditions in s 31(2) have been satisfied. I am further satisfied that the applicant has established that a fair trial can occur and that the Court’s discretion should be exercised in favour of the application. Accordingly, I will make the order to extend time under s 31(2) of the Limitation of Actions Act 1974 (Qld).
I order that the period of limitation for the applicant’s claim for damages for personal injuries against the respondent be extended until 3 August 2018, pursuant to section 31(2) of the Limitations of Actions Act 1974.
I will relist the matter for the parties to make submissions as to any further directions that may be required in relation to the determination of the remaining orders sought in the application filed 7 September 2018, including costs, at a time to be agreed with the parties.
 There is a dispute as to whether it was provided to Mr Walker in a clear faced or plain envelope.
 (2006) 226 CLR 197.
 At - per Gummow, Hayne and Crennan JJ.
 The State of Queensland v Stephenson (2006) 226 CLR 197 at .
 The State of Queensland v Stephenson (2006) 226 CLR 197 at .
  QCA 352, with whom Fraser JA agreed.
  QCA 352 at .
  QCA 352 at .
 NF v State of Queensland  QCA 110.
 Carlowe v Frigmobile Pty Ltd  QCA 527 at  per Thomas JA and Atkinson J.
  QCA 298.
  QCA 168 at .
  QCA 210 at .
 Affidavit of Jarman CFI 3 .
  QCA 112 at .
 The defendant’s objections based on Makita (Australia) Pty Ltd v Sprowles  NSWCA 305 at –.
 Objection 5.
 Objection 6.
  QCA 112.
  QCA 112 at  per Holmes J and at - per McMurdo J.
 Affidavit of Jarman CFI 3, -.
 Affidavit of Jarman CFI 3, .
 Exhibits KJ47 and KJ48 to the Affidavit of Jarman filed by leave 6 December 2018.
 Exhibit KJ49 to the Affidavit of Jarman filed by leave 6 December 2018.
 Exhibit KJ18 to the Affidavit of Jarman CF1 4, p 189. It also queried what the position would have been if an ambulance had been called earlier.
 Objection was taken to the sentence “Having regard… may have altered the plaintiff’s outcome.” The statement is not an admissible opinion as to causation but is relevant to the chain of inquiry and steps taken.
 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 258.
 T1-79/30-46; T1-80/19-21 and 40-45.
 T1-82/40-43, by only as to the last half of the first page of instructions.
 Exhibit KJ49 to the Affidavit of Jarman filed by leave 6 December 2018 at p 3.
 Exhibit DJD-01 to the Affidavit of Davison CFI 12.
 T1-72/43-44; T1-73/6-8.
 See Exhibit 2.
  QCA 74; (2015) 2 Qd R 106.
 At - per Holmes JA and at - per Gotterson JA.
 At  per Gotterson JA.
 Section 9A of the PIPA, although a complying report had to then be provided with Part 1 of the Notice of Claim.
 Dwan v Farquhar  1 Qd R 234 at 239 per Thomas J.
 Exhibit KJ8 to the Affidavit of Jarman CFI 3.
 Affidavit of Walker CFI 5, .
 Affidavit of Jarman CFI 3, .
 Affidavit of Dr Tucker CFI 10, .
 Affidavit of Jarman, . The reference to four hours and four minutes included the travelling time from Ipswich to the PA Hospital. Objection to Ms Jarman’s affidavit estimating the time based on google maps. The objection is correct but in any event it was not a matter to which the Court had regard.
  2 Qd R 431 at 434-435.
 (2006) 226 CLR 234 at 245, .
 Gummow, Hayne, Heydon and Crennan JJ.
  QCA 74, .
 At .
 Prince Alfred College Inc v ADC (2018) 258 CLR 134, .
 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555 per McHugh J.
 Limpus v The State of Queensland  2 Qd R 161 at 169,  per Jerrard JA.
 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550 per Toohey and Gummow JJ and at 555 per McHugh J; NF v State of Queensland  QCA 110 at  per Keane JA.
 In this regard, the authorities relied upon by the defendant as to the relative strength of the plaintiff’s case and its relevance to the discretion have not been adopted in this context. They have been decided in a different context and conflict in some respects to accepted authority such as Wood v Glaxo Australia Pty Ltd  2 Qd R 431.
 (2016) 258 CLR 134.
 At - per French CJ, Kiefel, Bell, Keane and Nettle JJ.
 At  per French CJ, Kiefel, Bell, Keane and Nettle JJ.
 At .
 At .
 PTA v Leighton Contractors  WASCA 51, .
 There being no evidence that Mr Walker was aware of his solicitor’s approach to Dr Tucker.
 Objection was made to  of Ms Jarman’s affidavit. As an experienced solicitor who had the conduct of the matter, she was qualified to express the opinion. It is again to the extent they are matters of opinion. They are not matters to which I have given any significant weight.
 Notwithstanding that the PIPA now requires onerous pre-proceedings processes to be carried out: Kovacic v Local Government WorkCare  QSC 256. It is not in my view a matter that should weigh against a plaintiff if those processes have not been carried out prior to the making of an application under s 31 of the Act.
- Published Case Name:
Walker v Tucker
- Shortened Case Name:
Walker v Tucker
 QSC 141
03 Jun 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 141||03 Jun 2019||Application for an extension of time pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) granted: Brown J.|