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  • Unreported Judgment

Masters v Daoud

 

[2020] QDC 38

DISTRICT COURT OF QUEENSLAND

CITATION:

Masters v Daoud [2020] QDC 38

PARTIES:

SHERYL MASTERS
(Applicant)

v

MARK DAOUD
(Respondent)

FILE NO/S:

2336 of 2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2020

JUDGE:

Rinaudo DCJ

ORDER:

  1. Application allowed
  1. Time for commencing proceedings extended pursuant to s 31 of the Limitations of Actions Act 1974 until 30 August 2019
  1. Costs of the application be costs in the cause on the standard basis

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – Advice from a medical practitioner as to original surgeon’s negligence provided only after limitation period had expired

Limitation of Actions Act 1974 (Qld), s 30, s 31

Personal Injuries Proceedings Act 2002 (Qld), s 43

Ervin v Brisbane North Regional Health Authority & Anor [1994] QCA 424, followed

Healy v Femdale Pty Ltd [1993] QCA 210, cited

HWC  v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited

Moriarty v Sunbeam Corp Limited [1988] 2 Qd R 325, cited

Quinn v State of Queensland (No. 2) [2016] QDC 156, followed

State of Queensland v Stevenson (2006) 226 CLR 197, cited

Sugden v Crawford [1989] 1 Qd R 683, cited

Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, cited

COUNSEL:

J McClymont for the applicant

J FitzGerald for the respondent

SOLICITORS:

Kare Lawyers for the applicant

Avant Law for the respondent

The application

  1. [1]
    By originating application the applicant seeks the following orders:
  1. The applicant be granted leave to commence proceedings pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA);
  1. The proceedings be stayed until the application as complied with ch 2 pt I of the PIPA;
  1. The limitation period for commencing proceedings be extended pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (the Act) until 30 August 2019;
  1. The costs of the applicant be the applicant’s costs in the cause.
  1. [2]
    By a consent order of the Deputy Registrar on 29 July 2019, the applicant was granted leave pursuant to s 43(1) of the PIPA to commence proceedings in this court against the respondent, despite non-compliance with the requirements of ch 2 pt I of the PIPA. The proceedings were stayed until the applicant complied with ch 2 pt I of the PIPA or the proceedings were discontinued or otherwise ended.
  1. [3]
    The application for an order that the limitation period for commencing proceedings be extended pursuant to s 31 of the Act until 30 August 2019 was adjourned and was heard before me.

History

  1. [4]
    In August 2013, the applicant was referred to the respondent for treatment of high grade ductal carcinoma in situ, a form of breast cancer. 
  1. [5]
    On 15 August 2013, the respondent performed a hook wire excision of the right breast.
  1. [6]
    On 23 August 2013, the applicant consulted the respondent who is said to have advised the applicant that she also had a lobular carcinoma in situ and recommended that she undergo mastectomy of the right breast.  She was advised that it was inadvisable to undergo reconstruction of the right breast during the same procedure or to preserve her nipple, and that the need for mastectomy was urgent as her life was at risk.
  1. [7]
    The applicant accepted the respondent’s advice and on 27 August 2013 the procedure was carried out.
  1. [8]
    In about October 2013, a friend of the applicant was also diagnosed with ductal carcinoma in situ, and the applicant recommended she consult the respondent. The applicant became aware that the friend had consulted the respondent, who recommended mastectomy without immediate reconstruction or nipple preservation, but that her friend had also sought other specialist opinions to the effect that she could have immediate breast reconstruction.
  1. [9]
    The applicant became concerned as to whether she had received optimal treatment from the respondent.
  1. [10]
    In 2014, the applicant consulted two plastic surgeons about reconstruction of her breast, Dr Chris Pike and Dr Teresa Nano. These doctors did not advise her that the respondent’s medical advice had been incorrect, but the applicant formed the view that they did not agree with that advice.
  1. [11]
    In August 2014, the applicant underwent bilateral mastectomy and reconstruction.
  1. [12]
    On 5 May 2015, the applicant lodged a complaint with the Office of the Health Ombudsman (OHO). To the formal complaint form she attached a copy of a letter, which she had previously sent on 27 March 2015 to the Medical Board of Queensland setting out her concerns.  In this letter she says:[1]

“I would like to make a formal complaint regarding Dr Mark Daoud with respect to the treatment I received in August of 2013 when I was diagnosed with right breast ductal carcinoma in situ at the Wesley Breast Clinic.”

  1. [13]
    She goes on to describe the events and treatment which occurred and advises that she had a mastectomy on 27 August 2013.[2] She states that:[3]

“Soon after this a friend of mine had a very similar diagnosis with extensive ductal carcinoma in situ of her left breast and had complete different treatment to myself including immediate nipple sparing reconstruction and I have been quite upset regarding my management.”

  1. [14]
    She further states that:[4]

“In view of the actual results I could have had breast conserving surgery with a wider excision of the breast while he explained to me that I had multifocal disease present.

… I was never given the option of a reconstruction and when I asked about an immediate reconstruction which is a well-recognised option especially in the presence of ductal carcinoma in situ I was immediately declined this and railroaded into a right mastectomy.”

  1. [15]
    She continues, stating that:[5]

“Since this treatment I have had feelings of sadness regarding the loss of my breast and I have also had had multiple options regarding plastic surgery reconstruction options and found out that I could have had a better reconstruction if I had had my reconstruction immediately and this has left me with more scarring on my chest wall than I could have had had I been given other options. 

Dr Mark Daoud told me I had multifocal disease which I did not.  Regarding the risk that lobular carcinoma in situ carries he made me feel that this was a really urgent risk of developing further cancer and I think there is not an understanding from his point of view of the pathology that was involved.  I did not have an invasive cancer.”

  1. [16]
    It is noted from the applicant’s submissions that she was diligent in seeking updates from the OHO about the progress of her complaint.[6]  She was notified on 3 September 2015 that there was a delay because the expert from whom the OHO would normally seek expert advice had a conflict of interest.  She followed up on 14 October 2015 and was told her complaint was being sent to the Australian Health Practitioner Regulation Agency (AHPRA).
  1. [17]
    On 26 November 2015 she was told by AHPRA to be patient as these things take time to consider. Further updates were requested on 11 May 2016 and 10 November 2016 and the possibility of being able to obtain an independent opinion was canvassed. She was told on 13 October 2017 that an independent specialist practitioner had been engaged to provide an opinion.
  1. [18]
    On 27 February 2018, the applicant again contacted AHPRA who advised that they had received the report and would put the relevant material before the Medical Board (the Board) for a decision to be made.
  1. [19]
    The applicant was advised on 27 June 2018 that a report had been prepared for consideration by the Board, with an outcome hopefully to be advised following the Board’s meeting on 18 July 2018.
  1. [20]
    The applicant again contact AHPRA on 3 August 2018 and was advised the Board was considering their decision and she would be notified as soon as the decision was received.
  1. [21]
    The applicant was notified of the outcome of the investigation by AHPRA on 30 August 2018.
  1. [22]
    AHPRA advised the application that it had decided to take no further action in relation to her case. However, the regulator provided the applicant a summary of the advice of Professor Ian Bennett which stated that:[7]
  1. (a)
    The respondent did not appreciate the difference between LCIS and DCIS, and therefore had wrongly categorised the finding of LCIS as being a new focus of DCIS indicating multi-focal cancer;
  1. (b)
    Surgical intervention did not require any degree of urgency, and a delay of three or four weeks for surgery would have no consequence for the applicant’s prognosis; 
  1. (c)
    Treatment by re-excision and radiation (breast conserving surgery) would have been the most appropriate treatment options. This would have provided a 97 to 98 per cent success rate, with mastectomy offering 98 per cent success rate;
  1. (d)
    In multi-focal DCIS, mastectomy “very favourably lends itself to an immediate reconstruction”, with immediate reconstruction being “very commonly performed in every day practice”.
  1. (e)
    Nipple preservation is “very much a negotiable matter between the patient and the surgeon”;
  1. (f)
    The respondent had, in the opinion of Professor Bennett, “provided a restricted perspective of the potential treatment options available.”
  1. [23]
    The AHRPA notice also outlined the respondent’s submissions to AHPRA, provided on three occasions between 29 May 2015 and 10 January 2018, in which he stated:[8]
  1. (a)
    He had discussed all treatment options with the plaintiff;
  1. (b)
    The “psychological status of women when diagnosed with breast cancer understandably, is not usually in a position to decide about breast construction options, therefore the majority of breast cancer patients that [he] manage [sic] prefer to have a delayed reconstruction.”
  1. (c)
    He does not offer nipple sparing mastectomy to his patients;
  1. (d)
    He denies that the applicant requested sparing of her nipple or immediate reconstruction;
  1. (e)
    He understood the difference between LCIS and DCIS, and his letter to the GP was a typographical error when it referred to a new focus of “DCIS”. 
  1. [24]
    It is submitted that when the applicant received this letter and the summary of Professor Bennett’s opinion, she became aware that:[9]
  1. (a)
    Another specialist medical practitioner had expressed criticism of the respondent’s advice to her and treatment of her;
  1. (b)
    She would have had an equally favourable prognosis with breast sparing surgery; and
  1. (c)
    She could have undergone immediate breast reconstruction at the time of mastectomy with preservation of her nipple. 

She promptly sought legal advice upon receipt of this letter. 

The Law

  1. [25]
    The limitation period for bringing an action expired on 23 August 2016. Section 30 of the Act provides:

30 Interpretation

  1. (1)
    For the purposes of this section and sections 31, 32, 33 and 34—
  1. (a)
    the material facts relating to a right of action include the following—
  1. (i)
    the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
  1. (ii)
    the identity of the person against whom the right of action lies;
  1. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
  1. (iv)
    the nature and extent of the personal injury so caused;
  1. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
  1. (b)
    material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
  1. (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
  1. (ii)
    that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
  1. (c)
    a fact is not within the means of knowledge of a person at a particular time if, but only if—
  1. (i)
    the person does not know the fact at that time; and
  1. (ii)
    as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.
  1. (2)
    In this section—

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”

  1. [26]
    Section 31 of the Act provides:

31 Ordinary actions

  1. (1)
    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.
  1. (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—
  1. (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
  1. (b)
    that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

  1. (3)
    This section applies to an action whether or not the period of limitation for the action has expired—
  1. (a)
    before the commencement of this Act; or
  1. (b)
    before an application is made under this section in respect of the right of action.”
  1. [27]
    For the applicant to obtain an extension of the limitation period the applicant must show:[10]
  1. (a)
    That the applicant became aware of a “material fact” within a year prior to the relevant date (in this case, the relevant date is 30 July 2018);
  1. (b)
    That the material fact was of a “decisive character”,
  1. (c)
    That the material fact was not within the applicant’s knowledge or means of knowledge any earlier;
  1. (d)
    That there is evidence to establish the right of action other than the limitations defence; and
  1. (e)
    That the discretion ought to be exercised in the applicant’s favour, to which issue a question of prejudice is relevant. 

The applicant’s submissions

  1. [28]
    The applicant alleges she first became aware of a material fact of a decisive character on 30 August 2018, when she was advised of the substance of Professor Bennett’s opinion to AHPRA.[11]  It is submitted that on that date, the applicant became aware that an independent medical expert had considered the standard of treatment rendered by the respondent and found it deficient in several important aspects.[12] The content of Professor Bennett’s opinion as to the misdiagnosis and incorrect treatment of the applicant is submitted to be a “material fact” within the meaning of s 30(1)(a)(i) of the Act, namely, that the respondent had been negligent in his treatment of the applicant.[13]
  1. [29]
    The High Court in the decision of State of Queensland v Stephenson discussed the meaning of the phrase “material fact of a decisive character”.[14]  The majority held:

“It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the 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 these facts as showing’ the features described in sub-pars (i) and (ii) of s 30(1)(b).

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)).”[15]

  1. [30]
    It is submitted that although the applicant was suspicious that she had not received correct advice and treatment from the respondent, and had questioned her treating doctors about that treatment, the material fact of a decisive character was not within the applicant’s knowledge or means of knowledge until she received the letter from AHPRA conveying Professor Bennett’s opinion.
  1. [31]
    I note in this regard the reference to the decision of Ervin v Brisbane North Regional Health Authority & Anor [1994] QCA 424 where an opinion from a medical practitioner that surgery had been performed incompetently was found to be a material fact of a decisive character.  Pincus JA observed:[16]

“What she did not know … was whether any qualified specialist was prepared to commit himself or herself to an opinion that the operation was done negligently and incompetently; she knew that Dr Sonnabend was not prepared to do so.”

  1. [32]
    I also note the reference to the decision of HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 where Keane JA found:[17]

“… it is not the policy of the courts in the application of s.31 … to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.”

  1. [33]
    It is submitted that although the applicant raised queries with two surgeons, neither had expressed explicit criticism of the respondent.[18] The applicant reasonably believed that it was appropriate to refer her concerns to the Health Ombudsman whose responsibility it is to maintain public confidence in the management of complaints relating to the provision of health services and establish a transparent, accountable and fair system for effectively and expeditiously dealing with complaints.[19] 
  1. [34]
    It is further submitted that though there was a considerable delay in the resolution of her complaint (which was passed by the Health Ombudsman to AHPRA) that was not the applicant’s fault.[20]  The files of OHO and AHPRA demonstrate the applicant was diligent in seeking progress of her complaints, and even with the resources and investigatory powers of those organisations, obtaining an independent specialist opinion from an appropriately qualified specialist without a conflict of interest took some considerable time.[21]
  1. [35]
    It was submitted that, in the circumstances, it should be found that the facts discovered by the applicant upon receipt of the substance of Professor Bennett’s opinion in August 2018 was not within her knowledge or means of knowledge any earlier.[22]

The respondent’s submissions

  1. [36]
    The respondent accepts that the medical opinion of Professor Bennett may in some cases be material.[23] However, it is submitted that the fact identified by the applicant must not only be material, but also decisive in character. In this regard, it is noted that the test was described in Moriarty v Sunbeam Corp Limited [1988] 2 Qd R 325 as follows:[24]

“In cases like the present, an applicant for extension discharges [her] onus not simply by showing that [she] has learnt some new fact which bears upon the nature or extent of [her] injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. [She] must show that without the newly learnt fact or facts [she] would not, even with the benefit of appropriate advice, have previously appreciated that [she] had a worthwhile action to pursue and should in [her] own interests pursue it.”

  1. [37]
    The respondent submits that “the [a]pplicant had a body of evidence prior to the relevant date about which a reasonable person armed with those facts would have taken appropriate medical and legal advice prior to the relevant date.”[25] It is noted that such an argument was put in Sugden v Crawford [1989] 1 Qd 683, to which it was said:[26]

“…The argument runs that the [applicant] has at all relevant times had in [her] possession facts which would have persuaded a reasonable [person], taking appropriate advice, that an action against the [respondent] would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of the action; and that the [applicant] ought, in [her] own interests and taking [her] circumstances into account, to have brought that action during the period of limitation …

Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s. 30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable [person], appropriately advised, would have brought the action on the facts already in [her] possession and the newly discovered facts merely go to an enlargement of [her] prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action…”

  1. [38]
    In this case, it is submitted that the facts and circumstances known to the applicant before the relevant date included that:[27]
  1. (a)
    In August 2013 –
  1. (i)
    she had undergone a mastectomy causing the removal of breast tissue and scarring which caused her disfigurement and anxiety which affected her appetite, her sleep, and her ability to obtain even part-time employment;
  1. (ii)
    she was not given the option of an immediate reconstruction surgery and/or nipple preservation;
  1. (b)
    by October/ November 2013 –
  1. (i)
    there were alternate treatments for her diagnosis which included nipple preservation and immediate reconstruction surgery;
  1. (ii)
    she had been told “things” by breast care nurses which caused her to question the advice given by the respondent;
  1. (c)
    by March 2014 –
  1. (i)
    the applicant had “the impression from two breast surgeons” that they did not agree with the advice given by the respondent and there were alternate forms of treatment rather than an a mastectomy but did nothing to seek further expert medical opinion or obtain legal advice;
  1. (d)
    by at least 27 March 2015 –
  1. (i)
    she had been misdiagnosed as having a multifocal ductal carcinoma in situ when she in fact had a lobular carcinoma that could have been treated with more conservative means;
  1. (ii)
    even if she had been suffering from ductal carcinoma in situ she need not have rushed to treatment;
  1. (iii)
    she ought to have undergone an MRI of her other breast prior to surgery;
  1. (iv)
    she ought to have been given more time to make a decision regarding her treatment options;
  1. (v)
    she ought to have been given the option of immediate reconstruction surgery;
  1. (vi)
    she had multiple medical opinions that she could have had a better reconstruction if she had had reconstruction surgery at the time of her initial mastectomy;
  1. (vii)
    she had undergone a mastectomy causing the removal of breast tissue and scarring which caused her disfigurement and anxiety which affected her appetite, her sleep, and her ability to obtain even part-time employment;
  1. (viii)
    she was not given the option of immediate reconstructive surgery and/or nipple preservation.
  1. [39]
    It is submitted that the applicant knew before 30 August 2018 that she had been misdiagnosed and treated,[28] and took no steps to obtain appropriate advice.[29] 
  1. [40]
    It is submitted that, “[i]n the present case, the AHPRA [d]ecision was not decisive since the [a]pplicant was aware, prior to the AHPRA [d]ecision:
  1. (a)
    of facts and circumstances that would cause a reasonable person to seek advice from a legal practitioner; and
  1. (b)
    armed with those facts and that advice, or otherwise, would consider that:
  1. (i)
    those facts showed that an action of the kind detailed in a [p]roceeding would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of that action; and
  1. (ii)
    that [a]pplicant should, in her own interests, bring that action.”[30]
  1. [41]
    It is submitted that the limitation period should not be extended as sections 30(b)(i) and (ii) of the Act had already been satisfied before the relevant date.[31] The respondent further submits with respect to the means of knowledge, that the test to be applied is an objective one. Reference was made to Healy v Femdale Pty Ltd [1993] QCA 210 where the Court of Appeal described the test as follows:

“The question whether an injured person has taken all reasonable steps to ascertain the seriousness 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 inquiry to protect ones health and legal rights …”

  1. [42]
    Reference was also made to Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 where it was held that:[32]

“… the body of evidence which a plaintiff a 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…

…if being at that point [namely the point where the plaintiff has the limitation period running against them] 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.”

  1. [43]
    It was submitted that the facts known the applicant before the relevant date were such that the court should determine that the applicant did not take all reasonable steps to protect her health and legal rights.[33]  As in the case of Hargans v Kemenes & Anor [2011] QCA 251 questions regarding pursuing legal action had arisen for the applicant before the relevant date; however, she took no steps to seek legal advice or to obtain expert medical opinion for five years.[34]
  1. [44]
    The respondent submits that after considering all of the facts known to the applicant, particularly in 2014 and 2015, the court should form the view that the applicant was aware of sufficient facts which were material and decisive in nature which would cause a reasonable person to take appropriate advice and to have commenced an action in relation to a claim before the relevant date.[35] It is submitted that, accordingly, the application should be dismissed.[36]

The oral hearing

  1. [45]
    The applicant was cross-examined with respect to her consultation with other doctors following her operation, and any advice they may have given her about the treatment provided by Dr Daoud. She gave evidence that she had consulted a number of doctors:

“They’re all specialists I think we just confirmed. And they are all reconstructive surgeons? --- All of them.  Chris Pyke is a breast and endocrine surgeon as well. And the same with Teresa Nano.[37]

And so all of those practitioners all had experience and offered their services in relation to, particularly to your case, breast reconstruction surgery? --- Correct.[38]

All right.  Now, when you went to see each of those doctors you discussed with them, didn’t you, the concerns that you had about being rushed into the mastectomy? --- No.[39]

So you didn’t mention to them that you were unhappy that you had to go through - - -?---Only two of them, I did.  The rest were just straight-out reconstruction.[40]

Sorry, could you repeat the start of your answer? --- There were only two surgeons that I spoke about my treatment prior.  The rest were just to do with reconstruction.[41]

All right.  And what were the names of the two that you spoke to? ---Chris Pyke and Teresa Nano.[42]

You spoke to them about how something didn’t feel right about the surgery?---My main concern was why wasn’t it offered – nipple-sparing and skin-sparing mastectomy – because ---[43]

All right. So you got the impression, though, from what they did tell you, although you can’t remember the details as such, that you shouldn’t have been refused immediate reconstruction and nipple preservation?---Correct.[44]

That you shouldn’t have been rushed into the mastectomy?---Yes.[45]

That you – and in fact that it was wrong to rush you into the mastectomy?---They said they – I would have had more time.[46]

And they told you that in fact Dr Daoud got it wrong in his diagnosis, didn’t they?---No.[47]

Right. But, regardless of all of that, you got the impression that they didn’t agree with the cause of action that Dr Daoud took?---Yes.[48]

And the advice that he gave you?---Yes.[49]

…All right. Well, in fact I suggest that you did discuss those things with Dr Nano, that you did discuss with her about how upset you were with Dr Daoud in the years 2015, 2016 and 2017.  What do you say to that proposition?---No, I don’t recall. She would have known I was upset because sometimes I would be in tears in her office.[50]

All right?---But it wasn’t discussed at length.[51]

But you suggest she would have known you were upset?---Oh yes, she would have known, yes.[52]

And you discussed with her about your feelings that you wanted to do something about what had happened to you?---Yes.[53]

… 

And you chatted with her about that, about, “I’m going to send this letter.  I’m going to take action against him”?---Yes.  I didn’t want him – my main concern there when I wanted to send the letter was I didn’t want him to do what he did to me to other women, because he said he had done hundreds of mastectomies.  And I thought, well, if he’s done this to me and just straight out done the mastectomy without offering any other alternative surgeries, I wanted him to stop doing it to other women. That was my concern.[54]

… 

…Dr Nano was correct in her record here, isn’t she, that you said to her you’re thinking of going ahead with suing?---I don’t recall you using the word suing”.[55]

All right.  So you don’t accept that that’s an accurate reflection?---Well, if I – yeah, I don’t recall actually saying that.  I said I was going to seek legal advice.[56]

All right.  And you say you said you were going to seek legal advice about suing Dr Daoud?---I don’t recall actually using the word “suing”.[57]

That’s what you meant, wasn’t it?---Well, legal advice to see where I go about being misdiagnosed and - - -

All right?---Mmm.[58]

Well, I put to you that in fact you had had a discussion with Dr Nano before that point in time about taking legal advice in relation to Dr Daoud?---No. I don’t believe that.  She knew I wrote the letter to the Health Ombudsman.  She said that was the best course to go through.”[59]

  1. [46]
    In relation to the AHPRA application form and her intention to claim compensation, and any other advice she may have been given regarding her entitlement to sue Dr Daoud, the applicant was asked:

“And, in this form, you, at the top of page, ticked all of the boxes.  When asked the question, “What would you like to happen to resolve your complaint?” you put an X in each box including the box that said compensation.  That’s right, isn’t it?---Correct.[60]

And you were aware, though, weren’t you, that you couldn’t receive compensation from the Health Ombudsman?---No, that’s right.  I was angry and I didn’t just want to tick one thing; I wanted to tick all of them so he would be investigated.[61]

All right.  Shortly after you put that complaint into the Health Ombudsman, you received a call from Belle Moffatt---? ---Yes.[62]

--- didn’t you, from the Health Ombudsman’s Office?--- Yes. She was my case manager.[63]

And she reiterated to you that the Health Ombudsman doesn’t pay compensation or award compensation for claims?---I don’t recall her saying that.[64]

All right.  She also said to you that, if you wanted compensation, you’d have to take legal action against Dr Daoud?---I don’t recall that, no.[65]

All right.  And in fact she told you you could take legal action against Dr Daoud?--- No.  They never ever said that.  Neither did AHPRA.[66]

All right.  So I am taking from your evidence just then you’re saying that no-one ever said that to you?--- No.  I did ask with AHPRA when I got their final letter, when he’d been investigated, and I asked whether legal action could be taken and I can use this letter.  And they said that they can’t comment on that.  That’s up to me to decide whether I take that avenue or not. But they can’t tell me yes or no.[67]

I put to you, Ms Masters, that in fact this is a note of a telephone call received from you on or about 3 September – it’s dated 3 September 2018?---Mmm.[68]

The note records:

Sheryl stated that she is aware that Dr Daoud has been in trouble before and that he is not allowed to operate at Greenslopes Hospital.  She noted that a case manager had previously advised her that she could take legal action against Dr Daoud.  I advised Sheryl that she is free to seek legal advice.  However, I cannot provide her with legal advice as to whether she would be successful with a claim against Dr Daoud.

If you - - -?---Yes.[69]

---accept that I have read that correctly - - -?---Yes.[70]

- - - and I expect that I would have been taken to task about it if I had not – I put to you that in fact your recollection is wrong and that your evidence you just gave is incorrect, and that in fact you had been told by a case manager that she could take legal action against Dr Daoud?---Okay.  I don’t specifically recall who actually said that. Though.[71]

You accept it’s possible - - -?---Possible.[72]

- - - that that’s correct?---Correct. Yes.[73]

And you received it (letter from AHPRA) on or about that date, 26 November 2015; that’s correct, isn’t it?---I think so, yes.[74]

And you read and understood the letter at the time, didn’t you?--- Yes.[75]

And you’d accept, would you not, that it’s made pretty clear that in that letter that, just like the OHO, AHPRA doesn’t pay compensation?---Yes.”[76]

  1. [47]
    In re-examination, the applicant was asked:

“Could you tell his Honour, please, what was the purpose of you seeking to see those specialists?---My first priority was a reconstruction.  And then it was also to find out, my treatment – was it the correct treatment from Daoud.[77] 

And did any of those specialists give you a definitive answer to the second part of what you’ve just described?---No.[78] 

Were you seeking compensation from those bodies?---At that point, no.  My main concern was I didn’t want him to keep going saying he was a breast and endocrine surgeon when he wasn’t a breast and endocrine surgeon. And I didn’t want him to – what I have had to go through, other women have to go through; I wanted to stop him.[79] 

Now, you’ve been asked some questions about your findings of your own research, internet research and asking friends and breast care nurses and so on, and you indicate your understanding was that you had been misdiagnosed, that there were other treatment options available to you, and that they would have given you a better outcome?---Yes.[80]

Until you receive the final letter from AHPRA - - -?---Yes.[81]

- - - summarising the opinion of an independent specialist about those matters, had any specialist medical practitioner ever told you that the things you had discovered through your research were true, or false?---No.[82]

  1. [48]
    I am satisfied the applicant was a truthful and reliable witness.

Summary of dates

15 August 2013  Respondent performs excision.

23 August 2013 Respondent recommends mastectomy without reconstruction or nipple preservation

27 August 2013 Applicant undergoes mastectomy.

Early 2014 Applicant seeks medical advice about reconstruction from two surgeons.  Neither of whom told her that the respondent’s medical advice was incorrect.

5 May 2015 Applicant lodges complaint with the OHO.

26 October 2015 OHO refers complaint to the AHPRA;

23 August 2016 Limitation period expires.

30 July 2018 “Relevant date” i.e. one year before proceedings issued.

30 August 2018 Applicant receives decision of AHPRA including summary of independent assessment of the respondent’s health services by Professor Ian Bennett.

14 September 2018 Applicant sought legal advice.

30 July 2019 Proceedings instituted by the applicant, pursuant to grant of leave by consent under s 43(1) of the PIPA.

Discussion and decision

  1. [49]
    It is not in dispute that the respondent operated on the applicant on 27 August 2013 when he performed a mastectomy without reconstruction or nipple preservation.
  1. [50]
    By letter dated 30 August 2018 the respondent received advice from AHPRA that a number of her claims against the respondent were substantiated. This was based on the independent assessment of the respondent’s health services by Professor Ian Bennett.
  1. [51]
    As a consequence of the information provided by Professor Bennett, the applicant sought legal advice and commenced proceedings against the respondent. The proceedings are out of time as the limitation period expired on 15 August 2016. An extension of the time for the bringing the claim has been sought by the applicant. For the court to grant the application the applicant must show 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 (the relevant date).
  1. [52]
    The respondent contends that the applicant had sufficient knowledge and information before the limitation period expired to enable her to obtain legal advice and institute proceedings prior to the expiration of the limitation period. Whilst it is conceded by the respondent that the advice of Professor Bennett might be material, it is argued that it must also be of decisive character.
  1. [53]
    The applicant says that not long after her operation a friend of her received a similar diagnosis as her, and was given options which the applicant had not been given by the respondent. This caused her some concern, and she sought advice from a number of doctors about reconstructive surgery.
  1. [54]
    It would appear she confided in two of these doctors, in particular Dr Chris Pyke and Dr Teresa Nano. It is clear from her evidence that each of them expressed concern about the treatment that had been provided to her by the respondent. However, there is no evidence either of them told the applicant that in their opinion the treatment by the respondent was negligent and actionable. Dr Nano informed the applicant that the best course of action was to refer the matter to the Medical Board.
  1. [55]
    The respondent contends that the applicant knew before the limitation expired that she could sue, and in fact had been advised of this. In cross-examination it was suggested that she did intend to sue. The applicant denied that she was ever told she could sue Dr Daoud. However, whether she was or not is immaterial, as she was clearly never told on what basis she could sue, that is that Dr Daoud had been negligent in his treatment of her.
  1. [56]
    Notwithstanding this, there is no evidence that she ever sought legal advice, and no evidence that she was motivated by a reason other than her concern to ensure that the respondent did not operate on other women. She did not pursue any avenue of compensation for herself, opting instead to make a referral to the Office of Health Ombudsman and AHPRA. The applicant acknowledged in cross-examination that she had ticked the box for compensation because “[she] was angry and did not want to tick just one thing; [she] wanted to tick all of them so he would be investigated.”[83]
  1. [57]
    She appears to have been diligent in pursuing first the OHO and then subsequently AHPRA. AHPRA had some difficulty in obtaining an independent medical opinion as to the treatment provided to the applicant by the respondent. Ultimately, only after the limitation period had expired was such report forthcoming to the applicant.
  1. [58]
    The applicant herself says that she had not been advised that she would have a successful claim should she commence proceedings against the respondent. It was only after she had received the response from AHPRA that this became clear and she made enquiries about it. She immediately sought legal advice at that time. Proceedings were instituted after an application was made pursuant to s 43 of the PIPA. 
  1. [59]
    I note that at 30 July 2019, similar circumstances existed as those in the decision of Quinn v State of Queensland (No. 2) [2016] QDC 156 (Quinn).  In that case, the applicant was diagnosed with bowel cancer and underwent surgery at the Rockhampton Hospital on 15 and 17 November 2011.  The surgery was performed by Dr Alkidady, an employee of the hospital. The applicant alleged that the doctor had negligently performed the operation on her.  That view was supported by a report from Professor Morris on 10 May 2015.  The limitation period had long since passed.  The applicant contended that the report from Professor Morris constituted a material fact of a decisive character, and that up until then, she did not know she had a cause of action against the respondent worth pursuing.  In that case, the applicant had sought legal advice, but the solicitors did not take action before the limitation period expired. 
  1. [60]
    Reid DCJ noted at paragraph 37:[84]

“There can in my view, be little doubt that competent solicitors would have taken steps prior to 15 November 2014 to protect the applicant’s interests.  To do so was not difficult.  An application under s 43 of PIPA would have done so.  So too would an application under s 59 of  PIPA but to do so would have required a complying Part 1 Notice of Claim to have to be given before 15 November.  In the absence of any medical report supporting the claim this could have been somewhat problematic but it is unnecessary to consider that issue further. 

This issue was raised in this case by Ms McClymont, counsel for the applicant. 

  1. [61]
    His Honour said further at paragraphs 38 to 39:[85]

“In my view, the fact that competent solicitors might or should have protected the applicant’s interests does, however, not determine the matter. 

….

The question to be ultimately resolved is whether a material fact of a decisive character relating to the right of action was within the means of knowledge of the applicant until she received the report of Professor Morris.”

  1. [62]
    His Honour went on to consider this proposition and referred to the decision of the Court of Appeal in Ervin v Brisbane North Regional Health Authority & Anor [1994] QCA 424 (267/93) (Ervin) delivered on 20 October 1994, which he considered to be of significant assistance in the resolution of the matter.[86]  In that case, the applicant submitted that it was only when she received a report of Dr Robuck on 20 February 1992, almost seven years post-surgery, did she become aware of the following facts:
  1. (a)
    guidance instruments were available for the proper placing of components involved in the knee construction;
  1. (b)
    proper replacement is critical to proper functioning;
  1. (c)
    femoral fixation pins should have been used;
  1. (d)
    the knee replacement was performed incompletely.[87]
  1. [63]
    In that case, Pincus JA said:[88]

“…without having a written favourable opinion from a suitable medical witness…one cannot say that the appellant, taking her circumstances into account, ought to have brought an action before 11 February 1992.”

  1. [64]
    His Honour continued:[89]

“What the appellant did was to make some inquiries of Dr Sonnabend in 1987 and to inquire further of him in 1989.  After being told by Dr Sonnabend that her knee symptoms were the result of the 1985 operation, she engaged solicitors.  Subsequently … she relied on her solicitors, both to deal with Sonnabend – unsuccessfully … and, subsequently to try and get a suitable opinion from another specialist, Dr Roebuck.  It seems to me that it was a reasonable course to engage solicitors to undertake these tasks; it will have been noted that she took this step promptly after Dr Sonnabend expressed the opinion that her knee trouble was the result of the operation.  Thereafter, the solicitors did not manage to move the claim along quickly, but it is not shown that the stage was ever reached at which, acting reasonably, the appellant ought to have sought other legal advice, or that in any other respect she failed to take all reasonable steps.”

  1. [65]
    Davies JA noted in respect of the report of Dr Sonnabend:[90]

“Unexplained, the more likely interpretation is that Dr Sonnabend thought that the operation was performed negligently.  But it is possible he was saying no more than that there was an error in its performance.”

His Honour continued:[91]

“It follows from this, in my view, that the appellant did not then have, within her knowledge or means of knowledge, the fact that Dr Sugars was negligent.  Indeed, the only option which she had received was to the contrary; that there had been an error in performing the operation, but that it had not been a negligent one. It also necessarily follows that the fact did not come within her means of knowledge of the appellant until she received Dr Roebuck’s report on 25 February 1992.”

  1. [66]
    In such circumstances, the appeal was allowed by the majority.[92]
  1. [67]
    Although the decision of Quinn is different insofar as it involved solicitors who failed to take proceedings in time, I am persuaded by the reasoning of Reid DCJ and the majority in the decision of Ervin,[93] that in this case, the material fact of a decisive nature relating to the right of action was not within the means of knowledge of the applicant until the receipt of the report from Professor Bennett. 
  1. [68]
    It is clear that the applicant spoke to both Dr Chris Pyke and Dr Teresa Nano about her treatment by the respondent.  However, there is no evidence or suggestion that either of them gave her a considered opinion that the respondent may have conducted his treatment of her negligently.  She did discuss issues with Dr Nano over a period of time; however, once again, it could not be said that her knowledge was such prior to the receipt of the decision of AHPRA (including the advice of Professor Bennett) that she knew the operation he performed on her was performed negligently. 
  1. [69]
    Accordingly, I am satisfied that the applicant became aware of a “material fact” within a year prior to the relevant date, that the material fact was of a “decisive character”, and that the material fact was not within the applicant’s knowledge or means of knowledge any earlier.

Evidence to establish a right of action

  1. [70]
    In accordance with s 30(2)(b), I am satisfied on the basis of the opinion stated by Professor Bennett that there is evidence to establish the right of action, apart from a defence founded on the expiration of a period of limitation.

Prejudice

  1. [71]
    Given the history of the complaint to both the Health Ombudsman and AHPRA, and the significant input of both the applicant and the respondent in respect of those complaints, and the material, documents and other material available, it does not appear that there is any prejudice to the respondent in respect of proceedings. Whilst Ms FitzGerald argued in oral submissions that the “passage of time dulls people’s memories [and] causes evidence to not be as reliable… as it might otherwise have been”, in this case, the events are well documented, both from the perspective of the applicant and the respondent. In the circumstances, there is no reason to suppose a fair trial cannot take place.
  1. [72]
    Accordingly, I allow the application and extend the time for commencing proceedings pursuant to s 31 of the Act until 30 August 2019.

Costs

  1. [73]
    Submissions were made at the conclusion of the hearing as to costs.
  1. [74]
    Ms McClymont, for the applicant, submitted that there is no basis in principle for the applicant to be ordered to pay the respondent’s costs.[94] She further submitted that if it is ultimately found the respondent was negligent, then the costs of this application should be treated as part of her standard costs in the cause.[95]
  1. [75]
    Ms FitzGerald, for the respondent, argued that the hearing was necessary in order to test the evidence of the applicant, in particular, her knowledge as to whether she was apprised of a material fact of a decisive character.[96] Some evidence in cross-examination had not been covered in the three affidavits filed on behalf of the applicant.[97] It was submitted that the respondent should have the costs of the application on the standard basis regardless of whether the applicant succeeds.[98]
  1. [76]
    I accept that the respondent was clearly entitled to raise the defence, and put the applicant to the test as to the timing of her knowledge of a material fact of decisive character. However, having regard to the reasons for allowing the application, it appears to me, that in all the circumstances, it is appropriate that costs be costs in the cause on the standard basis. I so order.

Footnotes

[1]  Letter dated 27 March 2015, page 4 of exhibit “SM2” to the affidavit of Sheryl Lee Masters.

[2]  Ibid.

[3]  Ibid.

[4]  Ibid.

[5]  Ibid.

[6]  Applicant’s submissions [10].

[7]  Ibid at [20].

[8]  Ibid at [21].

[9]  Ibid at [27]-[29].

[10]  Ibid at [26].

[11]  Ibid at [27].

[12]  Ibid at [28].

[13]  Ibid at [31].

[14]  (2006) 226 CLR 197; (2006) 227 ALR 17.

[15]  Ibid at [29]-[30] per Gummow, Hayne and Crennan JJ.

[16]Ervin v Brisbane North Regional Health Authority & Anor [1994] QCA 424.

[17]  Applicant’s submissions [40]; HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 at [44].

[18]  Applicant’s submissions [41].

[19]  Ibid at [43]; Health Ombudsman Act 2013 (Qld), s 3.

[20]  Applicant’s submissions [44].

[21]  Ibid at [45].

[22]  Ibid at [46].

[23]  Respondent’s submissions [22].

[24]  Moriarty v Sunbeam Corp Limited [1988] 2 Qd R 325, 333.

[25]  Respondent’s submissions [24].

[26]  Ibid at [24]; Sugden v Crawford [1989] 1 Qd R 683.

[27]  Respondent’s submissions [25].

[28]  Ibid at [26].

[29]  Ibid at [27].

[30]  Ibid at [28].

[31]  Ibid at [29].

[32]Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 437.

[33]  Respondent’s submissions, [32].

[34]Hargans v Kemenes & Anor [2011] QCA 251, [23].

[35]  Respondent’s submissions [33].

[36]  Ibid at [33].

[37]  Transcript of proceedings 1-8 ll 4-6.

[38]  Ibid 1-8 ll 8-9.

[39]  Ibid 1-8 ll 11-13.

[40]  Ibid 1-8 ll 15-16.

[41]  Ibid 1-8 ll 18-19.

[42]  Ibid 1-8 ll 21-22.

[43]  Ibid 1-8 ll 27-29.

[44]  Ibid 1-9 ll 40-42.

[45]  Ibid 1-9 l 44.

[46]  Ibid 1-9 ll 46-47.

[47]  Ibid 1-10 10-11.

[48]  Ibid 1-10 ll 13-14.

[49]  Ibid 1-10 l 16.

[50]  Ibid 1-11 ll 46-47, 1-12 ll 1-3.

[51]  Ibid 1-12 l 5.

[52]  Ibid 1-12 ll 7-8.

[53]  Ibid 1-12 ll 10-11.

[54]  Ibid 1-12 ll 21-27.

[55]  Ibid 1-14 ll 18-20.

[56]  Ibid 1-14 ll 22-23.

[57]  Ibid 1-14 ll 25-26.

[58]  Ibid 1-14 ll 28-31.

[59]  Ibid 1-14 ll 41-44.

[60]  Ibid 1-16 ll 25-28.

[61]  Ibid 1-16 ll 30-32.

[62]  Ibid 1-17 ll 23-24.

[63]  Ibid 1-17 ll 26-27.

[64]  Ibid 1-17 ll 29-30.

[65]  Ibid 1-17 ll 32-33.

[66]  Ibid 1-17 ll 35-36.

[67]  Ibid 1-17 ll 38-42.

[68]  Ibid 1-18 ll 23-25.

[69]  Ibid 1-18 ll 37-46.

[70]  Ibid 1-19 l 1.

[71]  Ibid 1-19 ll 3-7.

[72]  Ibid 1-19 l 14.

[73]  Ibid 1-19 l 11.

[74]  Ibid 1-19 ll 29-30.

[75]  Ibid 1-19 ll 31-32.

[76]  Ibid 1-19 ll 34-35.

[77]  Ibid 1-20 ll 29-31.

[78]  Ibid 1-21 ll 33-34.

[79]  Ibid 1-20 ll 39-43.

[80]  Ibid 1-20 ll 45-47, 1-21 ll 1-2.

[81]  Ibid 1-21 l 4.

[82]  Ibid 1-21 ll 6-8.

[83]  Ibid 1-16 ll 31-32.

[84]  Quinn v State of Queensland (No. 2) [2016] QDC 156 at [37].

[85]  Ibid at [38]-[39].

[86]  Ibid at [49].

[87]Ervin v Brisbane North Regional Health Authority & Anor [1994] QCA 424.

[88]  Ibid.

[89]  Ibid.

[90]  Ibid.

[91]  Ibid.

[92]  Ibid.

[93]  Ibid.

[94]  Transcript of proceeding 1-39 ll 1-2.

[95]  Ibid 1-39 ll 3-5.

[96]  Ibid 1-39 ll 19-23

[97]  Ibid 1-39 ll 18-19.

[98]  Ibid 1-39 ll 28-30.

Close

Editorial Notes

  • Published Case Name:

    Masters v Daoud

  • Shortened Case Name:

    Masters v Daoud

  • MNC:

    [2020] QDC 38

  • Court:

    QDC

  • Judge(s):

    Rinaudo DCJ

  • Date:

    20 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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