Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode
  • Unreported Judgment

Smith v Reader

 

[2020] QSC 48

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Reader [2020] QSC 48

PARTIES:

BEVERLEY ANNE SMITH

(applicant)

v

STUART READER

(respondent)

FILE NO/S:

BS No 10995 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2019

JUDGE:

Ryan J

ORDER:

The application is dismissed.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where the applicant alleges that the respondent’s treatment of her was negligent and caused her to become blind – where the applicant filed her claim after the expiration of the relevant three year limitation period – where the applicant relies on receipt of a specialist report, or more particularly, the inference of the respondent’s negligence which she alleges may be drawn from it, as a material fact of a decisive character – where, as at the critical date, the applicant’s lay opinion about the cause of her blindness provided an inadequate foundation for a cause of action – where the specialist report was a material fact of a decisive character – where the applicant cannot succeed if she has unreasonably delayed in obtaining the necessary advice or information – where relevant steps to progress the action were separated by months – where it was not unreasonable for the applicant, in her personal circumstances, to wait as long as she did, and as passively as she did, for her lawyers to obtain a report – where it therefore appears that the material fact of a decisive character contained in the specialist report was not within the applicant’s means of knowledge before she received the report

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – EVIDENCE TO ESTABLISH RIGHT OF ACTION – where the applicant alleges that the respondent’s treatment of her was negligent and caused her to become blind – where the applicant filed her claim after the expiration of the relevant three year limitation period – where the applicant relies on the specialist report as providing evidence of the respondent’s breach of duty, and as providing evidence that the respondent’s breach caused the applicant’s personal injury – where the specialist report relied upon by the applicant does not (taken with other evidence) establish a prima facie cause of action in negligence – whether the wording “it appears to the court that there is evidence to establish the right of action” entitles the court to look elsewhere – where the language of the section is plain and entitles the court to consider all of the evidence before it to determine whether “it appears” that there is evidence to establish the cause of action – where on all of the evidence, it does not appear to the court that the applicant can point to evidence to establish the right of action

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

Personal Injuries Proceedings Act 2002 (Qld)

Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256, cited

Berg v Kruger Enterprises [1990] 2 Qd R 301, considered

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, explained

Dick v University of Queensland [2000] 2 Qd R 476, applied

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, applied

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

Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112, explained

Healy v Femdale [1993] QCA 210, explained

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

NF v State of Queensland [2005] QCA 110, cited

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

Walker v Tucker [2019] QSC 141, cited

Wolverson v Todman [2016] 2 Qd R 106, cited

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

COUNSEL:

J P Morris for the applicant

M T Hickey for the respondent 

LAWYERS:

Monaco Solicitors for the applicant

Minter Ellison for the respondent 

Contents

Introduction

The respondent’s treatment of the applicant in 2012

Associate Professor Lee’s treatment of the applicant

The history of the personal injuries claim

Dr Cohn’s report (applicant’s expert)

The decision to proceed with the claim

The applicant’s original statement of claim

Carriage of the matter after the statement of claim was filed

Dr Vote’s report (respondent’s expert)

The compulsory conference

Dr Cohn’s supplementary report

The amended statement of claim

The legislation and the law

Rationale and discretion

Material fact of a decisive character

Not previously within the means of knowledge of the applicant

Evidence to establish a right of action

Submissions – Material Fact of a Decisive Character

Applicant’s submissions

Respondent’s submissions

Was Dr Cohn’s opinion decisive?

Was Dr Cohn’s report a material fact as per section 30(1)(a)(i) or (iii)?

Submissions – Whether the material and decisive fact was within the means of knowledge of applicant before receipt of Dr Cohn’s report

Applicant’s submissions

Respondent’s submissions

Was the material fact of a decisive character within the applicant’s means of knowledge before 24 October 2015 (the critical date)?

Submissions – Evidence to establish a right of action

Applicant’s submissions

Respondent’s submissions

Is there evidence to establish the right of action?

Whether “it appeared” from evidence apart from Dr Cohn’s report that the applicant had a right of action

The discretion

The fairness of any trial

The interests of justice

Conclusion

Introduction

  1. [1]
    The applicant is 80 years old.  She suffers from chronic glaucoma which was diagnosed when she was 40.  Until late 2012, her condition was managed with medication and six-monthly visits to an ophthalmologist.  In January 2012, aged 72, she was independent and able to drive.  She “knew herself” that “eventually” she could go blind because of her glaucoma but she thought that “proper treatment” would delay its onset. 
  2. [2]
    The respondent became the applicant’s ophthalmologist on 18 January 2012.  The applicant alleges that his treatment of her in 2012 was negligent and caused her to become blind.  
  3. [3]
    Under the Limitation of Actions Act 1974 (Qld) (‘LAA’), the applicant had three years to bring a medical negligence claim against the respondent.  The relevant three-year period expired, at the latest, on 17 October 2015.  The applicant filed her claim on 24 October 2016.
  4. [4]
    In defence of the claim, the respondent pleads that the applicant’s action is statute barred because it was commenced more than three years after her cause of action arose. 
  5. [5]
    The court’s discretion to extend the limitation period arises if it appears to the court that a material fact of a decisive character was not within the applicant’s means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and there is evidence to establish the right of action.  If those matters are established, the court may extend the limitation period by one year from the date upon which the applicant had the means of knowledge of the fact.  An applicant for an extension of the limitation period bears the evidential and persuasive onus.
  6. [6]
    Rather than seeking an extension until the date on which she filed proceedings, the applicant applies for an extension of the limitation period until 15 September 2017.  That date is one year after the receipt by her lawyers of the report of a specialist ophthalmologist about the respondent’s treatment of her.  The applicant says that it was not until that report was received that she understood that she had a claim against the respondent in negligence.  She relies upon the receipt of that report, or more particularly, the inference of the respondent’s negligence which, she says, may be drawn from it, as “a material fact of a decisive character”.
  7. [7]
    I consider that the “critical date”, as that expression is used in these cases, is 24 October 2015 – a year before the applicant filed proceedings.  On that basis, to succeed in this application, the applicant must establish (among other things) that the material fact of a decisive character was not within her means of knowledge before 24 October 2015.  She submits that it was not within her knowledge, or means of knowledge, until 15 September 2016.
  8. [8]
    The respondent submits that the period of limitation ought not to be extended, primarily because –
  • the applicant’s delay in commencing proceedings, after delivery of the initial notice, was inexplicable and unreasonable;
  • the expert’s report added nothing to the applicant’s state of knowledge at the time her claim became statute barred – it was not therefore “decisive”; and
  • the expert’s report did not establish that the respondent had been negligent in his treatment of her – there was therefore no evidence to establish her right of action.
  1. [9]
    On that last point, the respondent’s management of the applicant’s intraocular pressure (IOP) is particularly relevant to her claim.  Elevated eye pressure may damage the optic nerve and cause a loss of sight.  Steroid eye drops may increase or elevate IOP.  Although it was not stated expressly in the evidence, I infer that the applicant had an elevated IOP because of her glaucoma, and a critical aspect of her treatment was managing her IOP.
  2. [10]
    On 7 August 2012, the applicant presented to the respondent with a viral eye infection.  The respondent prescribed steroid eye drops to treat that infection, aware of the risk that the drops might increase the applicant’s IOP. 
  3. [11]
    The steroid drops did increase the applicant’s IOP.  The respondent became aware of the increase on 21 August 2012.  There is a factual dispute about whether the respondent instructed the applicant to cease the use of steroid eye drops on 21 August 2012 (and she failed to comply with that instruction) or whether he failed to give her that instruction.
  4. [12]
    Matters critical to the determination of this application include –
  • whether the report of the applicant’s specialist ophthalmologist amounts to a material fact of a decisive character because of the ambivalence of the opinions expressed in it; and
  • the question of causation (in the context of the question whether there is evidence to establish the right of action), which is complicated by –
    • the fact of the applicant’s longstanding glaucoma; and
    • the fact that, according to the applicant’s specialist ophthalmologist, left untreated by steroids, the viral eye infection itself would have permanently impeded the applicant’s already vulnerable vision.

The respondent’s treatment of the applicant in 2012

  1. [13]
    I make the following preliminary observation.  The respondent’s notes of his treatment of the applicant were not tendered.  This overview of the respondent’s treatment of the applicant has been taken primarily from the applicant’s original statement of claim.  The statements of claim (original and amended) and the defence contain assertions about the applicant’s IOP (in millimetres of mercury) on certain dates, apparently taken from the respondent’s notes.  In the case of almost every date, the parties assert different IOP measurements.  Those differences had no bearing on my ultimate decision.  However, in the body paragraphs of this part of my reasons, I have referred to the IOP measurements as asserted by the applicant in the original statement of claim.  Footnotes to the paragraphs contain the respondent’s assertions about the applicant’s IOP on the same date.
  2. [14]
    At the applicant’s first appointment with the respondent, on 18 January 2012, he took a history from her and examined her eyes.  Of her IOP he noted “IOP stable today, keep below 15”.  He prescribed her “usual” glaucoma medication (Ganfort and Alphagan) and made no significant change to the management prescribed by her previous ophthalmologists.
  3. [15]
    The applicant saw the respondent next on 9 July 2012, in the company of her daughter, Wendy McCafferty, complaining of deterioration in her field of vision, sore and itchy eyes, and a feeling that there was a film over her eyes.  The respondent measured her IOP and found it to be “ok”.  He prescribed Ganfort and Alphagan (as before) and added a sample of Systane Ultra (a lubricating eye-drop).
  4. [16]
    On 6 August 2012, the applicant complained to her General Practitioner of red and itchy eyes and was referred urgently to the respondent.
  5. [17]
    The applicant saw the respondent the next day, 7 August 2012.  He measured her IOP (22mmHG (left); 21mmHG (right))[1] and told her that he thought she had a viral infection (adenoviral keratoconjunctivitis).  He prescribed steroid eye drops, Prednefrin Forte (10 ml 4 times daily for two weeks), with review in two weeks.
  6. [18]
    In affidavit evidence, the applicant and her daughter said that the respondent told the applicant that the steroids would likely send her intraocular pressure “right up” but that it was important to get rid of the virus and he would “then”, or “later”, concentrate on getting the pressure back down.  They each said that the respondent did not mention a risk of blindness.
  7. [19]
    The applicant administered the steroid eye drops between 7 and 21 August 2012.
  8. [20]
    She returned to see the respondent on 21 August 2012.  Her symptoms had not eased, her vision was worse and at times she felt off-balance.  Her IOP was 24mmHG (left) and 28mmHG (right).[2]
  9. [21]
    According to the respondent, he added the lubricating eye-drop, Systane, to the applicant’s regime but told her to cease the Prednefrin Forte.  He scheduled a follow-up appointment with the applicant in two months’ time.
  10. [22]
    According to the applicant, the respondent advised her to use Systane “alongside” the Prednefrin Forte.  According to the applicant’s daughter, the respondent instructed the applicant to use Systane and to continue with her other medications.  She was “certain” that the respondent did not instruct the applicant to cease the steroid drops: Had such an instruction been given to the applicant, the applicant’s daughter would have ensured that it was followed. 
  11. [23]
    On 27 September 2012, the applicant visited the respondent (an urgent, unscheduled visit).  Her vision had further deteriorated.  She was unable to read or see the television.  Her IOP was 27mmHG (left) and 35mmHG (right).[3] 
  12. [24]
    According to the applicant, the respondent told her that there had been optic nerve damage, reducing visual acuity in her right eye.  According to the statement of claim – though it is inconsistent with the affidavit evidence – he told her to stop using the steroid eye drops and advised her to use Ganfort, Alphagan, Systane and Diamox (a tablet).[4] 
  13. [25]
    The applicant’s daughter said that this was the first visit at which the respondent told the applicant to cease the Prednefrin Forte.  She added, “There was certainly no comment or (sic) made by Dr Reader that we had continued to administer the Prednefrin Forte when he had told us to stop or any questioning as to why we had continued to administer the Prednefrin Forte”.  
  14. [26]
    On 9 October 2012, the applicant (and her daughter) noticed the redness of her skin around her nose, upper lip and eyes.  She made an urgent appointment to see the respondent the next day.
  15. [27]
    At the appointment on 10 October 2012, the respondent measured the applicant’s IOP.  It was 32mmHG (left) and 42mmHG (right).[5]
  16. [28]
    He advised her to continue with Ganfort, Alphagan and Diamox.  He also prescribed Chlorsig eye drops, with review in a week.
  17. [29]
    At review on 17 October 2012, the respondent measured the applicant’s IOP.  According to the applicant, he said “we” need to get it down.  He added another medication, Azopt eye drops, to her regime, with review in a week. 
  18. [30]
    The applicant’s condition worsened.  On 30 October 2012, the date of her next appointment with the respondent, she was experiencing a stinging and gritty sensation in her eyes.  Her sight had deteriorated and she struggled to distinguish between day and night.  The applicant and her daughter spoke to each other about the respondent’s treatments not bringing about any improvement in the applicant’s condition.  According to the applicant’s daughter, they did not appreciate that the applicant had sustained permanent damage or that her condition was irreversible. 
  19. [31]
    At the 30 October 2012 appointment, the respondent measured the applicant’s IOP.  It was 23mmHG (left) and 32mmHG (right).[6]  He observed that the applicant had inflamed corneas.  He prescribed FML (eye drops).  The applicant asked the respondent for a referral to someone else.  The respondent referred the applicant to Associate Professor Graham Lee, who saw her that same day.  Associate Professor Lee specialises in glaucoma cases.

Associate Professor Lee’s treatment of the applicant

  1. [32]
    According to the applicant, Associate Professor Lee told the applicant that she had suffered “an allergic reaction” to the medication she had been using.  He told the applicant that there was nothing the respondent could have done differently.  He recommended that she use Travatan and Azarga medications, in addition to Diamox, three times a day.[7]  He later performed laser surgery on her eyes.
  2. [33]
    With treatment, including laser surgery, Associate Professor Lee was able to bring the applicant’s intraocular pressure under control, but he could not improve her sight. 
  3. [34]
    By 25 June 2013, the applicant was unable to perceive light in her right eye and was blind in both eyes.  She is now entirely reliant on her daughter for her personal and domestic care.
  4. [35]
    On the strength of Associate Professor Lee’s statement, that there was nothing that the respondent could have done differently, the applicant took the issue of her treatment by the respondent no further at that time.

The history of the personal injuries claim

  1. [36]
    In July 2015, the applicant and her daughter attended upon lawyers, Koolik and Associates, for the applicant to execute a power of attorney.  They saw Nick Koolik, who asked about the applicant’s blindness.  They told him how it had happened and that they had been told by Associate Professor Lee that it was “unavoidable”. 
  2. [37]
    Mr Koolik told the applicant and her daughter that they should not necessarily accept what they’d been told by Associate Professor Lee or the respondent because they were involved in the applicant’s treatment.  He advised them to obtain independent advice.  He also told them that his firm did not undertake medical negligence matters and suggested Lime Lawyers.  The applicant’s daughter could not “really recall” whether Mr Koolik told them that time limits attached to claims for damages for personal injury. 
  3. [38]
    The applicant’s daughter went to Lime Lawyers in August 2015.  They told her they did not undertake medical negligence work and referred her to Kasarne Burgan of Monaco Solicitors.  Lime Lawyers did though draft a request for documents, which Ms McCafferty signed on 22 July 2015.[8]
  4. [39]
    According to the affidavit evidence, on 14 or 16 September 2015, the applicant spoke to Ms Burgan who gave her advice about the steps to be taken to determine if the applicant had a claim against the respondent, including the need to obtain relevant medical records and an expert’s report.
  5. [40]
    By the time of the hearing before me, the applicant struggled to remember what she had been told by her lawyers. 
  6. [41]
    Ms McCafferty said that she “presumed” that Ms Burgan spoke to them about the strict time limits which applied to medical negligence claims but she was not “one hundred per cent sure of the exact conversation”.  She did not recall anyone from Monaco Solicitors telling her that the time limit for the bringing of her mother’s claim had either expired or was coming close to falling due.
  7. [42]
    On 2 October 2015, Monaco Solicitors sent an initial notice to the respondent in accordance with section 9A of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’).  The information contained in that notice (which was in letter form) included the following (my emphasis) –
  1. (e)
    The medical service alleged to have given rise to the personal injury and description of the alleged personal injury suffered: 

 In or about January 2012 the Claimant was referred to Dr Reader by her optometrist Simon Little for the management of her glaucoma.  On 9 July 2012 the Claimant presented to Dr Reader with complaints of sore and itchy eyes.  She also reported the presence of a film over her eyes.  Dr Reader prescribed Systane Ultra eye drops.

 The Claimant returned to Dr Reader on 7 August 2012 after using Systane Ultra from which she obtained no relief.  The Claimant complained of ongoing soreness and blurred vision caused by the film that had developed across her eye (sic).  Dr Reader diagnosed adenoviral kertoconjunctivitis and prescribed Prednefrin Forte Eye Drops.

 The Claimant awoke with sticky eyes on 10 October 2012 and consulted Dr Reader on even date.  Dr Reader diagnosed bilateral conjunctivitis and noted that intraocular pressure of both eyes was elevated.  Dr Reader recommended that the Claimant commence Chlorsig eye drops.  She returned to Dr Reader on 17 October 2012 as she continued to experience stinging of the eyes.  Upon examination Dr Reader advised that the Claimant continue to administer Chlorsig for another week in addition to commencing Azopt eye drops.

 The Claimant’s condition subsequently worsened such that she was unable to perceive light out of her right eye.  She returned to Dr Reader on 30 October 2012 for an urgent review.  On examination her intraocular eye pressure was found to be 23mmHg and 32mmHG for the left and right eyes respectively.  Dr Reader prescribed FML qid to be administered to both eyes and referred her to Associate Professor Graham Lee for further opinion regarding intraocular pressure control and corneal disease.

 The Claimant instructs that her vision in her right eye has now completely deteriorated causing her to become blind in that eye.  Due to the failure to adequately treat her glaucoma, the Claimant has been left with permanent blindness of the right eye and ongoing disabilities as a result.  

  1. [43]
    The applicant’s daughter was always present when her mother instructed her lawyers.  She agreed that the paragraph in bold immediately above was consistent with her recollection of the instructions which she (on her mother’s behalf) or her mother gave her lawyers.  She agreed that her view and her mother’s view at that time was that “due to Dr Reader’s failure to adequately treat [the applicant’s] glaucoma, she had been left with permanent blindness”.
  2. [44]
    On 2 October 2015, the day she sent the initial notice, Ms Burgan sent a preliminary costs agreement to the applicant.[9]  At the same time, Ms Burgan confirmed, in writing, the information which she had already provided to the applicant about the limitation period for a claim in medical negligence.  Her advice to the applicant read (my emphasis) –

We also confirm the writer’s advice to you regarding the limitation period applying to your claim.  The law in Queensland requires that if you are to bring proceedings in relation to this incident, you must ensure that those proceedings are commenced in court within three years of the date of injury or from when the cause of action becomes recognisable.  Accordingly, please advise the precise date upon which you lost vision within your right eye.  In the meantime, we note we have provided Dr Stuart Reader of Northpoint Eyecare notice of your claim.[10]

  1. [45]
    Ms Burgan also gave the applicant advice about the need to obtain the opinion of an independent expert (my emphasis) –

We will assist in completing a notice of claim, notifying the other side that we are acting, and once we receive a signed costs agreement, we will commence work on the claim [and] provide notice to the hospital or surgeon on your behalf.

The first step is to obtain expert medical opinion in support of your claim.  As part of this process, we’ll need to consult with medical specialists in order to ascertain that your case has reasonable prospects of success.

  1. [46]
    It was conceded by the applicant’s current lawyer (Anthony Porthouse) that the section 9A notice had been sent on the applicant’s instructions and that there would have been, on 2 October 2015, a “sufficient factual basis” for the statements contained in it. 
  2. [47]
    On 20 November 2015, Monaco Solicitors requested treatment records from Dr Wendy McKay (the applicant’s general practitioner), Dr Peter Cranstoun (one of the applicant’s former treating ophthalmologists) and Associate Professor Lee.  They received those records in December 2015. 

Dr Cohn’s report (applicant’s expert)

  1. [48]
    On 19 January 2016, the applicant’s lawyers decided to take steps to obtain expert opinion evidence from Dr Geoffrey Cohn about the respondent’s treatment of the applicant.  Dr Cohn had been identified as the lawyer’s preferred expert before that date.
  2. [49]
    On 15 March 2016, the applicant’s lawyers, by letter, asked Geoffrey Cohn OAM (M.B., B. Ch., FRANZCO, FRACS) to provide an expert report addressing liability in accordance with section 9A(9) of PIPA.  That letter set out in detail relevant facts drawn from the medical records and the applicant’s history.  It concluded as follows –

We would like you to consider, given Ms Smith’s long standing history of glaucoma, whether the administration of Prednefrin Forte or any other medications by Dr Reader constituted a departure from proper practice.  Further, we would also like your opinion as to whether the administration of Prednefrin Forte or any other medications by Dr Reader contributed to accelerating Ms Smith’s glaucoma, resulting in blindness in the right eye.

  1. [50]
    The applicant’s lawyer enclosed with that letter the clinical records of the respondent, Associate Professor Graham Lee and the applicant’s general practitioner.  It concluded with the following sentence, “We will forward you a list of questions under the cover of a separate letter”. 
  2. [51]
    In early April 2016, Maria Aravena assumed carriage of the applicant’s matter, taking over from Ms Burgan.
  3. [52]
    In late July 2016, Cameron Burge assumed carriage of the applicant’s matter, taking over from Ms Aravena.
  4. [53]
    On 29 July 2016, Mr Burge re-sent the letter of 15 March 2016 to Dr Cohn – changing its date and sending it via express post.  There was nothing on the applicant’s solicitor’s file to explain why the letter was re-sent to Dr Cohn although Mr Porthouse conceded that it was possible that the letter of 15 March 2016 was not in fact sent on that date.  
  5. [54]
    Certain matters were drawn to Dr Cohn’s attention in the letter, including that after a two week course of steroid eye drops (21 August 2012), the respondent noted that the applicant was a “steroid responder”; he measured her IOPs at 24 and 28 mmHG; and he recommended the use of Systane eye drops alongside the Prednefrin Forte eye drops.
  6. [55]
    As I have already mentioned, the actual medical records were not in evidence before me.  Other versions of the 21 August 2012 entry before me suggest that it includes a note from the respondent to the effect that the applicant was instructed to cease the Prednefrin Forte on that date.  As noted, the applicant’s position is that the respondent did not give her that instruction at this visit. 
  7. [56]
    Dr Cohn’s report makes no reference to the “cease” Prednefrin Forte entry.  On the assumption that he proceeded on the strength of the information as summarised in the letter of instruction, then he proceeded on the basis that the respondent did not instruct the applicant to cease Prednefrin Forte.
  8. [57]
    There was a telephone conference between Cameron Burge and Dr Cohn on 11 August 2016.[11]  On 19 August 2016, Mr Burge sent to Dr Cohn a letter of instruction for a report which responded to ten particular questions framed by Mr Burge. 
  9. [58]
    Question 5 asked Dr Cohn whether it was appropriate for the respondent to have continued to prescribe Prednefrin Forte between 7 August 2012 and 27 September 2012.
  10. [59]
    The applicant’s lawyers received Dr Cohn’s report on 15 September 2016.  It purported to address the ten questions asked of him, but the answers given by Dr Cohn were not always responsive to the questions asked of him; nor were they always internally consistent or directed to the facts of the present case.
  11. [60]
    Dr Cohn’s report informed Mr Burge of the following (my emphasis) –
  1. (a)
    If adenoviral keratoconjunctivitis is not treated, the white blood cell clusters scar, causing a permanent impediment to vision.
  2. (b)
    The introduction of a potent steroid such as Prednefrin Forte is necessary to prevent scarring – “irrespective of the presence of glaucoma”.
  3. (c)
    A known side effect is an increase in intraocular pressure, which affects a minority of people.
  4. (d)
    If glaucoma is a concurrent problem, then “appropriate measures” must be taken to control the intraocular pressure rise if it occurs.
  5. (e)
    Less potent steroids were not likely to have been effective.  It was not a departure from acceptable practice to commence with the more potent agent, Prednefrin Forte, as the primary intervention but it was important to monitor the eye pressure response.
  6. (f)
    The continued used of Prednefrin Forte between 7 August 2012 and 27 September 2012, was –

“… consistent with peer opinion under the circumstances described of intense white cell infiltrates and slow response.  It is incumbent on the clinician who is prescribing the treatment and monitoring the pressures to treat the pressure elevation aggressively.  This intervention should have been introduced as soon as a significant pressure rise was noted.  This can usually be accomplished by means of eye drops or tablets, with surgery being the fallback position.”   

  1. (g)
    The pressure rise should have been treated from the time at which it was recorded at two weeks.
  2. (h)
    The applicant was suffering from a very advanced glaucoma.
  3. (i)
    “Failure to lower the eye pressures induced by the steroid therapy is a departure from the standard of care.  The notes do indicate that few options for further lowering of the eye pressures could be identified.”
  4. (j)
    Standard management would have entailed additional treatment once the pressure rise was noted.  Ms Smith presented to Dr Reader on the three most potent agents available.  Dr Reader added Diamox tablets for further pressure control on 27 September 2012.  Surgical intervention posed a very high risk of the applicant’s losing all central vision. 
  5. (k)
    By 30 October 2012, the infiltrates were still present and the pressures were very high.  No further medical therapy could have been introduced.  The only pressure lowering intervention possible at that stage was surgery.  In the applicant’s case, surgery carried a high risk of loss of all central vision.  FML drops were introduced.
  6. (l)
    “Under Dr Graham Lee, the eye pressure control was improved by laser destruction of part of the eye’s fluid production mechanism.  Maximum medical therapy was still required in addition to this.  The only option which was available to Dr Reader for improved control of the eye pressures once they had risen on Prednefrin Forte would have been referral to Dr Graham Lee for such a procedure.” 
  7. (m)
    “Had Mrs Smith been referred to Dr Graham Lee earlier for control of the steroid-aggravated intraocular pressures, it is likely that a better vision outcome would have been achieved.  The tunnel fields of vision could not have been improved.  A better level of central vision might have been maintained.”  [Earlier in his report, Dr Cohn noted that the applicant had tunnel vision when the applicant first presented to Dr Reader.]
  1. [61]
    Thus, in Dr Cohn’s opinion, the applicant’s viral infection had to be treated with steroid drops to avoid damage to her vision.  Dr Cohn was not critical of the use of Prednefrin Forte between 7 August 2012 and 27 September 2012 to treat the applicant’s viral infection. 
  2. [62]
    As I understand this report, Dr Cohn’s references to that which might be “usually … accomplished” (in (f) above) or “standard management” (in (j) above) had no application in the applicant’s case.  Because she was suffering from a very advanced glaucoma, and was already on the three most potent eye pressure lowering agents available, the only option available to the respondent to treat the rise in the applicant’s IOP was a referral to Associate Professor Lee for surgery (see (l) above) – which posed a very high risk of loss of all central vision.
  3. [63]
    The applicant’s daughter was asked whether she was surprised that it took almost a year after first instructing Monaco Solicitors to obtain Dr Cohn’s report.  She said, “Yes and no.  I presume it’s – they’ve got to go into a lot of detail as to why and how and who.”

The decision to proceed with the claim

  1. [64]
    Mr Burge spoke to the applicant and her daughter on 23 September 2016.  He advised them that Dr Cohn’s report supported a claim by the applicant in negligence against the respondent.  On the strength of that advice, the applicant instructed Mr Burge to proceed with her claim. 
  2. [65]
    The applicant said in her affidavit, “Prior to this time, I had no reason to believe that the treatment provided by the respondent caused or contributed to my significant deterioration in eyesight or was negligent.  Previously, I had just accepted what I was told by Associate Professor Graham Lee”.  She said that at all times, after she instructed Monaco Solicitors to act on her behalf, she “left the conduct of the legal claim to them and at all times … relied totally upon their advice in respect of the conduct of the matter”.
  3. [66]
    Under cross-examination, the applicant had only a faint recollection of the fact that her lawyers had obtained a report from Dr Cohn.  She said, “yes, I think I remember my daughter mentioning that name”.  She did not remember anyone ever reading to her “what Dr Cohn had said”.  She was asked whether the fact that Dr Cohn’s report had been received was “remarkable” to her in any way.  She did not think that receiving it caused her to issue any particular instructions to her lawyers.  She said she assumed her lawyers obtained Dr Cohn’s report to get another opinion.  She said her daughter was “looking after a lot of the things” for her. 
  4. [67]
    The applicant’s daughter was asked whether Monaco Solicitors told her that they had spoken to Dr Cohn who had expressed a certain opinion to them before his written report was received.  She said she could not recall. 
  5. [68]
    She agreed that the lawyers were the ones “driving the proceedings” and that she and her mother were “the passengers”.  They were not “the professionals”: “We just go with what we’re instructed basically”. 
  6. [69]
    She was asked whether she pressured Monaco Solicitors to “keep things moving”.  She said that while she and her mother would like it to be “finished pretty quick” they were “not in that field” and did not know how long things would take.  She (and her mother) assumed the lawyers had things under control and put no pressure on the lawyers to move things along.
  7. [70]
    She was not aware that apparently no steps had been taken to obtain an independent review of her mother’s treatment between September 2015 and March 2016.  She did not know that the same set of instructions were set to Dr Cohn in March and then July 2016.  No one from Monaco Solicitors explained the delay in obtaining the report from Dr Cohn.  Ms McCafferty “presumed that it just all takes time”. 
  8. [71]
    On 5 October 2016, the respondent’s lawyers agreed to allow the applicant to start proceedings “urgently” – that is despite non-compliance with Part 1 of PIPA (see section 44 PIPA).
  9. [72]
    On 24 October 2016, the applicant filed a claim, and statement of claim, seeking damages for personal injury, interest and costs.

The applicant’s original statement of claim

  1. [73]
    The applicant’s original statement of claim asserted that, as at January 2012, whilst at an increased risk of glaucoma blindness, and with a slightly below average corneal thickness, the applicant had “good visual acuity” at 6/6 in each eye.  This description of the state of the applicant’s sight as at January 2012 was corrected in the amended statement of claim.  There was hearsay evidence before me that her visual acuity as at January 2012 was not 6/6.  Nevertheless, there was evidence that, at this time, the applicant independently attended to her domestic and personal chores, looked after her husband who had been diagnosed with Parkinson’s disease and was driving.
  2. [74]
    The statement of claim set out the details of her presentation to Dr Reader, and his treatment of her on each occasion, as outlined above.
  3. [75]
    It alleged that the respondent had breached the duty of care which he owed to the applicant by –
  1. (a)
    adopting a course of treatment which increased the applicant’s intraocular pressure;
  1. (b)
    maintaining that course of treatment in circumstances where it was not ameliorating the applicant’s symptoms;
  1. (c)
    failing to take any or adequate steps to lower the applicant’s intraocular pressure despite knowing it had increased on or about 7 August 2012 and despite noting in January 2012 that the applicant’s intraocular pressure needed to be maintained at 15mmHG;
  1. (d)
    failing to introduce an aggressive or sufficiently aggressive treatment to alleviate the increase in the intraocular pressure;
  1. (e)
    failing to treat or adequately treat the applicant’s increased intraocular pressure from the time of its 1st (sic) being recorded on 7 August 2012;
  1. (f)
    failing to refer the applicant to Dr Graham Lee for treatment upon diagnosing the applicant’s increased intraocular pressure;
  1. (g)
    failing to warn the applicant that the increase in intraocular pressure following the prescription of Predneforn (sic) Forte eye drops might lead to the applicant losing her sight.
  1. [76]
    It alleged that the respondent’s breaching his duty of care as above caused injury, loss and damage to the applicant, which it went on to detail.

Carriage of the matter after the statement of claim was filed

  1. [77]
    In March 2017, Mr Porthouse assumed carriage of the applicant’s matter, taking over from Mr Burge.
  2. [78]
    On 6 July 2018, the applicant’s lawyers sent to the respondent’s lawyers a copy of Dr Cohn’s report of 15 September 2016, apologising for the “oversight in service of this report”.

Dr Vote’s report (respondent’s expert)

  1. [79]
    The respondent’s lawyers obtained an expert report from Professor Brendan Vote, a specialist ophthalmologist, dated 8 December 2018.  The parties disagreed about the use to which I might put it.  The applicant submitted that it was completely irrelevant – although she had not objected to it.  The respondent submitted that it was relevant to the exercise of my discretion because of Dr Vote’s opinion about the severity of the applicant’s underlying condition and the high probability of her losing her sight before the introduction of topical steroids. 
  2. [80]
    Dr Vote’s opinion of the respondent’s treatment of the applicant was based on the assumption that the respondent instructed the applicant to cease the steroid eye drops on 21 August 2012 but that she failed to follow that instruction.  However the respondent emphasised that he did not rely upon the parts of Dr Vote’s report which assumed that the plaintiff failed to follow the defendant’s instruction to stop using the steroids for the purposes of arguing, essentially, that her claim for damages was futile.
  3. [81]
    In his “Summary Conclusion” Professor Vote observed that the applicant’s glaucoma had caused significant damage before the applicant saw the respondent –

With a more than 33-year history of glaucoma, and more than 95% damage existent before Dr Reader took on Mrs Smith’s care in 2012, it is concerning that Dr Reader is alleged to be held responsible for her total blindness … [W]ith such a long duration of disease and already manifest severity (legally blind) even before Dr Reader took over her management in 2012, an outcome of total blindness may well have been inevitable (mostly likely in my opinion), irrespective of any clinicians’ actions or specific events.

  1. [82]
    Putting to one side Professor Vote’s opinions which depended upon the assumption that the applicant failed to follow the respondent’s instruction to cease the steroids on 21 August 2012, the body of Professor Vote’s report includes the following observations or opinions – 
  • In 2007, the applicant was legally blind in the right eye and nearly legally blind in the left.
  • Her glaucoma progressed and when the respondent took over the applicant’s care, in January 2012, she was already legally blind (her best corrected visual acuity was 6/9 for her right eye and 6/12 for her left).
  • The applicant was in the most advanced stages of glaucoma when the respondent took over her care and her deteriorating trajectory had been apparent for years; it was often “only a matter of time” before these most severe glaucoma patients went completely blind, despite appropriate treatment.
  1. [83]
    Dr Vote’s report also observed that the applicant was not a suitable candidate for surgery as at 27 September 2012:

[S]urgical intervention for glaucoma is not a panacea and [is] fraught with potential visually threatening complications that may impact a patient’s disease[;] …the stakes… are much greater in glaucoma patients with advanced visual field loss [like the applicant]… as their fragile optic nerve fails to cope with the stress of surgery… [and it] carries a high risk of visual loss.

The compulsory conference

  1. [84]
    On 18 March 2019, the parties participated in a compulsory conference.  The matter did not settle. 

Dr Cohn’s supplementary report

  1. [85]
    On 30 July 2019, the applicant’s lawyers received Dr Cohn’s supplementary report dated 15 July 2019.  They disclosed it to the respondent the next day.  It was tendered in evidence by the applicant, although she submitted that I ought to ignore it.  The respondent submitted that I ought to have regard to it when considering the discretion to extend the limitation period. 
  2. [86]
    In preparing his supplementary report, Dr Cohn was asked to assume that the respondent (a) noted that the applicant was a steroid responder on 21 August 2012; and (b) ceased Prednefrin Forte treatment on that date. 
  3. [87]
    He was then asked, in effect, whether the respondent’s treatment of the applicant thereafter breached his duty of care to her in his failing to refer her to a specialist sooner or failing to schedule a review sooner than in two months’ time.
  4. [88]
    Dr Cohn said –

The role of a glaucoma specialist would really be that of surgical intervention.  There was no further medical intervention possible.  It can be argued that surgery should have been undertaken earlier.  I concur with Professor Vote that surgery for eyes such as these is an extremely high risk venture.

  1. [89]
    He was asked whether the applicant was likely to have had a better medical outcome or retained more of her vision if she had been referred to a specialist on 21 August 2012.  He said –

The tendency for intraocular pressure change following the suspension of a potent topical steroid is most commonly a fairly rapid fall in the intraocular pressure.  At the initial point of Mrs Smith being advised to discontinue the Prednefrin Forte, her intraocular pressure was not disturbingly elevated.  Many would be inclined to follow up the pressure at a two week period.  The probability would have been of spontaneous pressure lowering had Mrs Smith been compliant with the instruction. 

  1. [90]
    He was of the opinion that, had a glaucoma specialist operated earlier “relating to the pressure readings taken [on] 21 August 2012”, on the balance of probabilities, the applicant would have retained her small tunnel of vision, but there was a high risk, as identified by the respondent’s expert Professor Vote, that her central vision would have been “snuffed” by surgery.
  2. [91]
    Also of the risks associated with surgery he said (my emphasis) –

… As was evident in Professor Graham Lee’s initial response, attempts at lowering the intraocular pressure medically were an appropriate and safer initial step.

Had Professor Graham Lee been able to operate at an earlier stage and had the central vision not been obliterated by surgery, a high risk as noted, the central vision would have been likely to be retained for a longer period of time.  As Professor Vote observes, the outcome of such advanced glaucoma over a finite period of time is seldom satisfactory.

  1. [92]
    The applicant’s lawyer’s asked Dr Cohn, “what was the latest point in time that a reasonably competent practitioner should have referred the [applicant] for specialist treatment?”  He did not explicitly answer that question.  He said (my emphasis) –

The appropriate conversation necessary under the circumstances would have been the competing interests of the optic nerve, therefore the intraocular pressure question, and the need to restore corneal clarity and avoid scarring of the cornea.  The conversation would have needed to give clear indication of the high risks of surgical intervention.

One can reasonably argue that earlier referral for surgical intervention would have given a possibility of substantially better outcome at least in the short term.  Those who undertake glaucoma surgery are seldom keen to operate on eyes with such advanced glaucoma.

If a competent clinician believes that instructions to discontinue drops and to use Diamox tablets are meeting with compliance, it is reasonable to attempt to persevere with medical management.

  1. [93]
    Dr Cohn was asked to identify any matters upon which he disagreed with Professor Vote and the reason for his disagreement.  He said –

The only question on which opinions might vary in respect of Professor Vote’s report is that follow up intraocular pressure might well have been monitored sooner than two months after the cessation of Prednefrin Forte.

The amended statement of claim

  1. [94]
    On 11 September 2019, the applicant filed an amended statement of claim (ASOC), which replaced entirely her original statement of claim.  It is more detailed than the original statement of claim in its summary of the respondent’s treatment of the applicant and the information he had prior to and during his treatment of her. 
  2. [95]
    The ASOC alleged, inter alia, that the respondent had breached his duty of care to the applicant by –
  1. (a)
    failing to instruct the applicant to cease Prednefrin Forte on 21 August 2012;
  1. (b)
    on 21 August 2012, failing to take any steps to treat the applicant’s elevated IOP; or failing to treat her viral infection;
  1. (c)
    on 21 August 2012, failing to schedule a review within two weeks (rather than two months), given the need to monitor and reduce the applicant’s IOP;
  1. (d)
    failing to reduce the applicant’s IOP by no later than 15 September 2012; 30 September 2012; “and/or” 14 October 2012;
  1. (e)
    failing to refer the applicant to a specialist on –
  1. (i)
    21 August 2012, when her IOP had increased to 24 (left) and 28 (right);
  1. (ii)
    27 September 2012, when her IOP was increased to 27 (left) and 35 (right) and she had experienced a deterioration in her vision;
  1. (iii)
    10 October 2012, when her IOP was 30-something (left) and 42 (right) and there had been no improvement in her vision;
  1. (iv)
    17 October 2012, when her IOP was 10 (sic ? 20) (left) and 25 (right), and there had been no improvement in her vision.
  1. [96]
    It alleged that were it not for the breaches, the applicant would not have suffered permanent and irreversible damage to her eyes and would likely have retained sufficient visual acuity to allow her to live in her own home independently.  It claimed loss and damage in excess of $2.5 million.

The legislation and the law

  1. [97]
    The limitation period applying to the claim expired, at the latest, on 17 October 2015.  The claim was filed by agreement on 24 October 2016.  To proceed, the applicant requires an extension to the limitation period.  She seeks an order extending it to 15 September 2017 (or “such other date as the court deems fit”), under section 31 of the Limitations of Actions Act 1974 (Qld).
  2. [98]
    Section 31 states:
    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.
    2. (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—

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. (a)
    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. before the commencement of this Act; or
    2. before an application is made under this section in respect of the right of action.
  1. [99]
    Section 30 of the LAA defines certain of the terms used in section 31 –
    1. (1)
      For the purposes of this section and sections 31, 32, 33 and 34—
      1. 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;
        2. (ii)
          the identity of the person against whom the right of action lies;
        3. (iii)
          the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
        4. (iv)
          the nature and extent of the personal injury so caused;
        5. (v)
          the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
      2. 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
        2. (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;
      3. 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
        2. (ii)
          as far as the fact is able to be found out by the person — the person has taken all reasonable steps to find out the fact before that time.
    2. (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.

(ii) The matter is to be approached “step-by-step”, as explained in the judgment of Dawson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 256, quoted by Thomas JA in Dick v University of Queensland [2000] 2 Qd R 476 at [26] –

… The first step is to inquire whether the facts of which the appellant was unaware were material facts ... If they were, the next step is to ascertain whether they were of a decisive character … If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date ...

  1. [100]
    If the answer to that composite question is “yes”, the next question is whether it appears to the court that there is evidence to establish a right of action.

Rationale and discretion

  1. [101]
    Relying heavily as he did upon the court’s discretion not to extend a limitation period, the respondent began his written submissions by identifying the rationale for the enactment of the Limitation of Actions Act 1974 (Qld).  He referred to the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (‘Brisbane South’), especially at 551 – 553.  In that case, McHugh J explained that the enactment of time limitations had been driven by the general perception that “where there is delay the whole quality of justice deteriorates”.[12]  However, his Honour noted that the effect of delay on the quality of justice was not the only motivation for the enactment of limitation periods.  Courts and commentators had perceived four, namely that –
  • as time goes by, relevant evidence is likely to be lost;
  • it is oppressive, even “cruel” to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed;
  • people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; and
  • the public interest requires that disputes be settled as quickly as possible. 
  1. [102]
    His Honour went on to state (at 553) that a limitation period “represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated”.  His Honour stated that an extension provision is “legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case”.  The purpose of a provision such as section 31 is to “eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action [is] to be commenced” [Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635].  Whether injustice has occurred must be evaluated by reference to the rationales of the limitation period which has barred the action.  The discretion to extend “should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question”. 
  2. [103]
    Referring to Berg v Kruger Enterprises [1990] 2 Qd R 301 at 304 per Connolly J, the respondent submitted that the legislative policy was that the limitation period should be extended only in favour of a person who was, without fault on her part, unaware that she had a worthwhile cause of action until not more than 12 months before the commencement of proceedings.
  3. [104]
    Mr Berg injured his lumbar spine at work, on 15 June 1981, by lifting, carrying, stacking and handling excessive weights.  He was successful at first instance in his application to extend the limitation period (which would otherwise have expired on 15 June 1984) until 27 September 1986.  The primary judge considered that there were two material facts of a decisive character which were not within Berg’s means of knowledge until after 15 June 1983 – they were the fact of the occurrence of negligence on the part of his employer and the extent of his back injury.  His employer successfully appealed to the Full Court. 
  4. [105]
    As to the occurrence of negligence, his Honour explained that the legislation was concerned with facts, not legal concepts.  His Honour said, at 302 – 303 (citations omitted, my emphasis) –

… It is sufficient to refer to the judgment of Wilson J. in Do Carmo v Ford Excavations Pty Ltd ... for the proposition that the legal consequences of a fact or facts are to be excluded from the category of material facts.  His Honour cited with evident approval the speech of Lord Pearson in Smith v. Central Asbestos Co …, where his Lordship said:

“It seems to me the Parliament has drawn the line between ignorance of facts (material and decisive facts) and failing to draw the conclusions which a reasonable man, with the aid of expert advice, would have drawn from those facts as to the prospect of success in an action.  If the plaintiff did not know one of more of the material and decisive facts, his lateness in bringing the action is excused.  If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained the wrong expert advice, his lateness in bringing the action is not excused.”

… The respondent’s case, put simply, is that he was required to lift regularly weights too heavy for a man of his size and possibly for any man of ordinary stature [the respondent was “of slight build”].  This issue is easily stated and the direction of evidence to it involves no more than the adducing of facts and expert opinions which bear upon what is the maximum weight which can be handled day in day out as a regular task by a normal man and, if you will, the respondent in particular … If the evidence showed that the weight was excessive for a single workman to be required to handle regularly, the negligence would be made outThus the material facts were of the most elementary kind and were plainly within the knowledge of the respondent.  Nor can it be said that the significance of the heavy weights which the respondent was required to handle, as bearing on the alleged negligence of his employer, was not known to him.  Section 30(b) defines the material facts which will have a decisive character.  To put it shortly they are facts such that a reasonable man “knowing those facts and having taken the appropriate advice on those facts” would regard the action as worth bringing and that the prospective plaintiff ought to take action.  Appropriate advice includes not merely legal advice but it includes the advice of persons qualified to advise on matters of industrial safety: Do Carmo at 249 per Wilson J.   

  1. [106]
    The respondent also submitted that a material and decisive fact was his understanding of the seriousness of his injury – which he learnt was 10% of his working capacity when he was assessed by the Orthopaedic Board of the Workers’ Compensation Board on 27 February 1986.  His Honour agreed that it was not until after 15 June 1983 that the respondent was aware of the extent of his back injury, but he had been off work because of it from 29 September 1983 until May 1986 and he was put into a brace in November 1983 and a spinal graft was suggested to him by a doctor in March 1984.  His Honour found that the respondent was well aware that he had a work-related incapacitating back injury, in respect of which a spinal graft was a distinct possibility.  It was inescapable that, by the critical date of 27 September 1985, having been off work for two years, and with knowledge that a spinal fusion was at least a possible answer to his problems, he knew as much as he learnt in February 1986 when he was told that he had a 10 per cent working disability.
  2. [107]
    His Honour referred to one of his previous decisions, Sugden v Crawford [1989] 1 Qd R 683, in which his Honour said (my emphasis) –

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 man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action.

  1. [108]
    His Honour also referred to the following statement by Deane J in Do Carmo,[13] upon which, as noted, the present respondent particularly relied –

The legislative policy underlining the sections is plain enough.  It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than twelve months before the commencement of proceedings.

Material fact of a decisive character

  1. [109]
    The availability of evidence which might provide proof of an element of a cause of action may be a material fact relating to a right of action under section 30(1)(a).  As to whether the fact is of a decisive character, the question is whether knowledge of it, in the context of appropriate advice, ought to have induced the applicant to sue.  Where it is apparent that a reasonable person, appropriately advised, would have brought the action on the facts already in her possession before the critical date, time will not be extended.  Whether an applicant ought to have sought appropriate advice at a certain time depends on what was reasonable in the applicant’s circumstances.  Appropriate advice means the advice of persons qualified in their respective fields to give advice on the medical, legal and other aspects of the facts.   
  2. [110]
    In Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, Macrossan CJ said, at 437 (authorities omitted, my emphasis) –

The statutory scheme constituted by ss 30 and 31 seems to assume that an applicant either may or may not at some earlier time have knowledge of particular matters which are in the category of material facts but he is nevertheless not excluded from the possibility of obtaining an extension of the limitation period if he is not yet (and even if he had made reasonable enquiries and taken advice would not yet be) in possession of some one or more material facts of a decisive character.  When some critical knowledge or constructive knowledge of facts is belatedly gained which puts him over the borderline into a position where for the first time he has reasonable prospects and should in his own interests commence his proceedings he may be entitled to his extension …  

  1. [111]
    In Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 (‘Pikrt’), a question for the Court of Appeal was whether the existence of an expert’s opinion that the plaintiff had a serious and permanent injury was a material fact of a decisive character.  McMurdo J (as his Honour then was), with whom Holmes J (as her Honour then was) agreed, held that it was in the circumstances of that case. 
  2. [112]
    Mr Pikrt fell at work and injured his back on 23 May 1995.  An X-ray taken in June 1995 suggested his back was “normal”.  He returned to work in August 1995, after some physiotherapy, by which time his general practitioner certified that he was able to work without any restrictions.  Also at that time, an orthopaedic surgeon reported that he had suffered an acute back strain, but had recovered and would not be left with any permanent disability.
  3. [113]
    He resigned from work in December 1995 after his employer relocated and he was concerned about the back discomfort he would experience during the three hour (round trip) commute to work at the new location.
  4. [114]
    After resigning, he experienced intermittent backache and occasional lower body/limb pain over the years until April 2003, when he sought medical advice.  Investigations undertaken in April 2003 revealed (a) minimal narrowing of the L5/S1 disc space; and (b) a disc protrusion at L5/S1 close to, and possibly in contact with, the emerging right S1 nerve root.  He was referred to a neurosurgery outpatients unit, but could not see a specialist until January 2004.
  5. [115]
    In September 2003, he consulted solicitors.  At that time, he was “confident” that there was “quite a lot wrong” with his back and he had “more than a suspicion” that it was related to the 23 May 1995 fall.  His solicitors arranged for him to see an orthopaedic surgeon, Dr Blue.  Dr Blue examined him on 1 March 2004 and reported on 28 April 2004.  The plaintiff said that Dr Blue was the first doctor able to explain his pain and to “link” it to the 1995 accident.  But he acknowledged that before then, he believed that his back pain had been caused by the accident.
  6. [116]
    He commenced proceedings in the Supreme Court on 9 July 2004, for damages for personal injury caused by the 23 May 1995 incident.  The critical date was therefore 9 July 2003.  The material fact relied upon by the plaintiff was that a competent person held the opinion that his back injury was caused by the incident.
  7. [117]
    The primary judge held that the plaintiff’s belief, without medical advice to support it, did not mean that a relevant material and decisive fact relating to his right of action was within his means of knowledge or the means of knowledge of a reasonable person, at the relevant time.  Her Honour extended the limitation period. 
  8. [118]
    The defendant employer appealed, arguing that the plaintiff knew – by December 1995 – that he had suffered a significant injury to his lower back on 23 May 1995.  Also, the causal connection between his symptoms and the incident were within his means of, and indeed actual, knowledge: he did not need Dr Blue’s opinion to tell him that he had a serious problem with his back caused by the 23 May 1995 incident.  Dr Blue’s opinion was not therefore of a decisive character.  Nor, it was argued, had the plaintiff taken all reasonable steps to obtain the opinion before the critical date.
  9. [119]
    McMurdo J held that the availability of evidence from which to prove some essential element of a right of action may be a material fact relating to a right of action (at [45]).  The fact that there was a professional opinion such as that of Dr Blue was a material fact relating to a right of action because of its relevance to the action’s prospects of success and likely award of damages.
  10. [120]
    As to whether it was decisive, the question was whether a reasonable person in the plaintiff’s position, having taken appropriate advice, would have thought that an action brought by him, but unsupported by expert evidence, would have a reasonable prospect of success, resulting in a worthwhile award of damages.  The plaintiff’s “position” included that he had been working since the incident and that the medical opinions he had were either adverse to his claim or equivocal.  McMurdo J found that, 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.  His Honour held at [50] that (my emphasis) –

… a reasonable person, knowing what he knew 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 in obtaining an award of damages sufficient to justify the bringing of an action, such that he ought to sue.  The appropriate advice would be different with the addition to those facts of the availability of opinion evidence, unequivocally to the effect that he had a serious and permanent injury which was caused by the accident.  The existence of that medical opinion was thereby a material fact of a decisive character.

Not previously within the means of knowledge of the applicant

  1. [121]
    An applicant cannot succeed if he or she has unreasonably delayed in obtaining the necessary advice or information.  The focus is on what might reasonably be expected of the applicant in a particular case. 
  2. [122]
    Where an applicant has engaged a solicitor, the person whose knowledge is relevant for s 31(2) purposes is the applicant, not the solicitor.  “[P]lacing the matter in the hands of apparently competent solicitors with adequate instructions including information relevant to the cause of action would ordinarily amount to taking all reasonable steps to ascertain the relevant facts, provided that the plaintiff did his best to ensure that the solicitors did not languish in the prosecution of the action”: Wolverson v Todman [2016] 2 Qd R 106 at [63] per Gotterson JA, referring to and quoting from McPherson J in Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419 (my emphasis).
  3. [123]
    In Healy v Femdale [1993] QCA 210, the material fact was the nature and extent of the applicant’s injury.  The applicant had suffered an injury to her right arm at work in June 1986, but after surgical treatment, thought it was “fixed”.  She was unaware that she had been left with residual disability and ought not to undertake a certain type of manual work.  Ultimately, in the course of unsuitable work in 1992, her right arm “went” and thereafter, she brought a claim for damages for personal injury out of time.  The primary judge granted her an extension to the limitation period.  There was evidence before the primary judge that had the applicant asked the doctor at the time of her first surgery how serious her injury was, she would have been told that she had suffered an injury in the region of 10 per cent of the right upper limb – that is, a serious injury which warranted the bringing of an action.  Her employer unsuccessfully appealed against that decision. 
  4. [124]
    Referring to the equivalent of section 30(2) of the Limitation of Actions Act 1974 (Qld), the Court of Appeal explained the relevance of all of the circumstances to the question whether a material fact was within an applicant’s means of knowledge at page 4 (my emphasis) –

The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact that her injury was serious enough to justify the bringing of an action.  She did not ask her doctor questions of this kind.  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 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 or effect upon her working capacity.  There is no requirement to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.  A question of fact is involved here …

  1. [125]
    In Dick v University of Queensland [2000] 2 Qd R 476, Mr Dick’s use of a certain solvent in his employment, which contained N-hexane, caused him to suffer peripheral neuropathy.  He used the solvent between 1966 and August 1995.  He first noticed neuropathy symptoms in the middle of 1994 but it was not until 21 July 1995 that he obtained information from a doctor that N-hexane was a “notorious cause” of peripheral neuropathy.  The doctor also told him that he may have a case for prosecution. 
  2. [126]
    In November 1995, Mr Dick made a claim for workers’ compensation.  In March 1996, he mentioned his symptoms to solicitors whom he had consulted in relation to a will.  He was told that he might have a good cause of action for damages for personal injury against his employer.  Within two weeks, he instructed a partner of the firm to commence those proceedings.  The writ was issued on 25 July 1996 – that is, slightly more than one year after the date he received the information from the doctor about the link between the use of the solvent and his neuropathy.  
  3. [127]
    Mr Dick successfully applied at first instance for an extension of the limitation period to 25 July 1996.  The University appealed.  The relevant material fact for the purposes of the appeal was knowledge that the University had been negligent on the basis of evidence that there was information available to it, at the relevant time, about the danger of using the solvent.
  4. [128]
    The University argued that the doctor’s report contained all necessary material facts of a decisive character relating to the action in negligence and submitted that Mr Dick ought to have consulted all necessary experts after receiving the report.
  5. [129]
    Thomas JA stated (at [20]) that “[t]he distinction between knowledge that someone has caused an injury and knowledge that that person has caused it negligently is fundamental”.  As to the question whether the relevant fact was within the means of knowledge of the plaintiff during the relevant period, Thomas JA referred (at [30]) to the judgment of Dawson J in Do Carmo in which –

… His Honour observed that it is not enough that the plaintiff did not know; it is a question of his means of knowledge.  His Honour then emphasised that it is the means of knowledge of the plaintiff which are relevant and not the means of knowledge of a hypothetical reasonable man … Dawson J observed that …[s 30(1)(c) unlike s 30(1)(b)] “makes no assumption that appropriate advice was received when it was sought.  What is important is the means of knowledge which were reasonably available to the appellant.  And that must mean available in a practical and not a theoretical sense”. 

  1. [130]
    Thomas JA observed (at [32]) that in Do Carmo, in ascertaining the period over which the necessary material fact was not within the means of knowledge of the claimant, Dawson J examined the personal actions of the claimant.  His Honour did not postulate the necessary additional advice as having already been taken from such experts as might need to have been consulted.  Thomas JA considered Dawson J’s approach the correct one (at [34], my emphasis) –

In making a finding of fact on this important question, the reasonableness of the steps taken by the claimant needs to be considered, and of course a claimant will not succeed if he or she has unreasonably delayed in obtaining the necessary advice or information.  However, it seems to me, with respect, that the approach of Dawson J. with whom Brennan J. agreed, represents the correct method.

  1. [131]
    His Honour rejected the University’s submission (that Mr Dick ought to have consulted all necessary experts once he received the doctor’s advice) and held that further time may elapse if a claimant needs the help of a solicitor to ascertain a necessary fact.  His Honour said (at [36], my emphasis) –

In cases where a potential claimant lacks a material fact, and reasonably needs the help of a solicitor or someone else to obtain it, some further time may reasonably elapse before it should be held that such facts are within the claimant’s means of knowledge.  Such time will include the time which would reasonably elapse if the claimant, taking all reasonable steps to do so, consults solicitors or other persons, and those solicitors or those other persons undertake the necessary inquiries to ascertain the necessary additional facts to show whether or not there is a worthwhile cause of action. 

  1. [132]
    In NF v State of Queensland [2005] QCA 110, Keane JA (as his Honour then was) explained that section 30(1)(c) is not concerned with what might be expected of a reasonable person – rather it is concerned with that which might reasonably be expected of the applicant in a particular case.  His Honour said (at [29]), footnotes omitted, my emphasis) –

It is to be emphasized that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person.  It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps.  The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries.  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 be expected from the actual person in the circumstances of the applicant.  It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.  This view is supported by the text of s 39(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b).  The authorities do not afford conclusive support for this view; but they do not foreclose its acceptance, and it may be noted that in Young v Commission of Fire Service Williams J, as his Honour then was, accepted that a psychiatric condition which prevents an applicant from appreciating the nature and significance of the injury he has suffered was relevant for the purposes of s 30(1)(c)(ii) …

  1. [133]
    Williams JA said (at [2], my emphasis) –

In my view it is clear from s 30(1)(b)(ii) and s 30(1)(c)(ii) … that in particular cases the personal circumstances of the person seeking relief … will be of vital importance.  One only has to have regard to the following words in order to demonstrate that:

“the person … ought in the person’s own interests and taking the person’s circumstances into account” [s 30(1)(b)(ii)]

“as far as the fact is able to be found out by the person” [s 30(a)(c)(ii)] 

Those words in s 30(1)(b)(ii) were considered and applied in the recent series of cases involving applications for extension of time by undercover police operatives [his Honour listed the cases].  Further reference could be made to the observation by this court in Healy v Femdale Pty Ltd [1993] QCA 210: “These is no requirement to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the applicant to do so.”  In similar vein is my observation in Young v The Commission of Fire Service [1997] QSC 43: “To my mind it is of critical importance here that the applicant’s psychiatric condition prevented him from appreciating the nature and significance of the injury he had suffered and its likely consequences.  The very psychiatric condition in question militated against the applicant knowing its seriousness and probable consequence”. 

  1. [134]
    Holmes J (as her Honour then was) agreed with Keane and Williams JJA. 
  2. [135]
    In HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, Keane JA explained that the court’s policy was not to penalise an injured person who decides to get on with their life.  That case concerned the alleged sexual abuse of the claimant (the respondent to the appeal) by a school teacher between 1981 and 1985.  The primary judge accepted that it was not until 2002/2003, when he was diagnosed with a psychiatric condition which affected his relationship and his ability to work, that he appreciated the significant effect of the abuse upon him.  The primary judge concluded that a reasonable person in HWC’s position would not have taken it upon himself to enquire about the possibility of legal action against his teacher or the school authorities until his problems interfered with his earning capacity. 
  3. [136]
    Keane JA acknowledged that it might be said that the primary judge’s findings were generous but they were open.  And (at [44], footnotes omitted, my emphasis) –

… it is not the policy of the courts in the application of s 31 of the Act 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.  In Pizer v Ansett Australia Limited, Thomas JA referred to the earlier observations of this Court in Healy v Femdale Pty Ltd saying:

“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.”

  1. [137]
    In Ervin v Brisbane North Health Authority & Anor [1994] QCA 424, the Court considered the reasonableness of an applicant leaving certain matters to her lawyers and (albeit very briefly) the reasonableness of an applicant tolerating delay on the part of her lawyers.
  2. [138]
    After an operation on her knee in 1985, Ms Ervin suffered knee pain and restricted movement.  An orthopaedic specialist, Dr Sonnabend, told her that the cause of her pain and restrictive movement was that a prosthesis which had been surgically inserted had been inserted out of alignment.  He regarded the operation inserting the prosthesis as a “botched job”. 
  3. [139]
    Ms Ervin approached solicitors in 1989.  They were not prepared to take on her case without a written favourable opinion (that the surgeon had been negligent) from a suitable medical witness.  They approached Dr Sonnabend in 1990 but he declined to provide such an opinion.  In March 1991, the solicitors approached another specialist who, on February 1992, provided a report which contained the opinion that Ms Ervin’s surgeon had been negligent. 
  4. [140]
    The primary judge refused Ms Ervin’s application for an extension of the limitation period.  She appealed.  By majority (Davies and Pincus JJA, Williams JA dissenting), her appeal was allowed.
  5. [141]
    Pincus JA explained the effect of section 30(b)(ii) as to when a material fact relating to an applicant’s right of action is of a decisive character, emphasising an applicant’s own circumstances –

… if, but only if, a reasonable person, knowing that fact and having taken the appropriate advice on that fact, would regard it as showing that the appellant ought in the appellant’s own interests, and taking the appellant’s circumstances into account, to bring an action on the right of action to which the material fact relates.  To put this briefly in a way which emphasises one aspect of it, the question whether a fact is of a decisive character, in the case of this appellant, depends on whether it should have induced the appellant to sue.

  1. [142]
    His Honour explained that the appellant did not know, before 11 February 1992, whether a specialist was prepared to commit to an opinion that her surgeon had been negligent.  Before that date, she knew that she had pain and restricted movement and she knew that Dr Sonnabend considered the operation a “botched job”, but he was not prepared to provide an opinion that the surgeon was negligent.  The Court was not only “entitled” but “obliged” to take into account the appellant’s circumstances in determining whether she ought to have sued before 11 February 1992.  His Honour found that it was not unreasonable for Ms Ervin to have refrained from suing before 11 February 1992 because to do so would have required her to find a solicitor prepared to take on her case without a favourable specialist’s opinion or to sue unrepresented. 
  2. [143]
    His Honour found that Ms Ervin had taken all reasonable steps to ascertain the material and decisive fact (that is, the opinion of a specialist that her surgeon had been negligent) by relying on her lawyers to take the matter further, and that there was nothing unreasonable in her allowing the lawyers some time to ascertain that fact.  His Honour said (my emphasis) –

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… both to deal with Sonnabend – unsuccessfully as matters turned out [because he declined to provide a written opinion that the surgeon had been negligent] – and, subsequently, to try to get a suitable opinion from another specialist … 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.

Evidence to establish a right of action

  1. [144]
    Too rigorous a test is not to be applied to the requirement that it appear to the court that “there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation”.  It is enough for the applicant to demonstrate a prima facie case, even on hearsay evidence.  An applicant will meet this requirement if there is evidence, which may reasonably be expected to be available at trial, which would be – if unopposed – sufficient to prove a case in negligence. 
  2. [145]
    In Wood v Glaxo, at 434 – 435, Macrossan CJ explained (my emphasis) –

If a general observation is permissible at this point it can be said that applicants for extension of limitation periods are not intended by the legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action.  Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of an application to extend time will frequently depend on the impression on the judge’s mind of the material which the applicant presents or the existence of which he demonstrates or points to.  It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions.  A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial.  There are some resemblances in this to the situation of a defendant who resists a summary judgment application.  The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time.  In any situation where proof of a case is difficult and very far from straightforward, it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration.  Fundamentally, the standard required on an application for extension of time under the Act comes from the literal words of s. 31(2)(b): “evidence to establish the right of action”.  These words will be construed according to the evident policy of the legislation.

One way in which the onus has been expressed is that the applicant must demonstrate something like a prima facie case.  The evidence need not at the stage at which the applicant is brought be in a form which would be admissible at trial and it may indeed by hearsay.  It will not be possible to predict whether the plaintiff’s evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s. 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.

Submissions – Material Fact of a Decisive Character

Applicant’s submissions

  1. [146]
    The applicant relies upon the receipt of Dr Cohn’s report on 15 September 2016 as the material fact of a decisive character.
  2. [147]
    The applicant submitted that it was material because it was a fact of a type referred to in sections 30(1)(a)(i) and (iii).  And it was decisive, as required by section 30(1)(b), because it gave rise to the applicant’s belief that a claim against the respondent had (apart from the effect of the expiration of a period of limitation) reasonable prospects of success, which would result in an award of damages sufficient to justify making such a claim. 

Respondent’s submissions

  1. [148]
    The respondent acknowledged that there was no doubt that obtaining a medical opinion was capable of constituting a material fact of a decisive character – referring to Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd.[14]  However the respondent submitted that Dr Cohn’s report was not such a fact because –
  • I ought not to accept the applicant’s evidence that she had no reason to believe that the respondent’s treatment of her was negligent until she received Dr Cohn’s report.  That was inconsistent with the content of the section 9A notice.  The notice stated – in effect – that the respondent had breached his duty of care to her and had caused her blindness.  There had to be a reasonable evidentiary foundation for that allegation.  The applicant “evidently” had all the material facts necessary for her decision to commence proceedings against the respondent before the receipt of Dr Cohn’s report;

and

  • Dr Cohn’s report did not “unequivocally” express the opinion that the respondent’s treatment of the applicant had caused her serious and permanent injury.  He did not not opine that the respondent was negligent in any aspect of his treatment of the applicant.  Thus the advice given to a reasonable person, upon receipt of it would have been that it did not show than an action would have reasonable prospects of success resulting in an award of damages sufficient to justify proceeding. 

Was Dr Cohn’s opinion decisive?

  1. [149]
    The applicant’s daughter gave evidence to the effect that at the time her mother spoke to Monaco Solicitors for the purpose of completing the section 9A notice, she and her mother were of the view that the respondent had done something inadequately or negligently which had caused her mother’s blindness.
  2. [150]
    I am of the view that the statements contained in the section 9A notice and in particular the following statement, “Due to the failure to adequately treat her glaucoma, the Claimant has been left with permanent blindness of the right eye and ongoing disabilities as a result”, reflect the applicant’s (and perhaps her lawyer’s) lay opinion as to the cause of her blindness.  As Thomas JA explained in Dick v University of Queensland, the distinction between knowledge that someone has caused an injury and knowledge that the person has caused it negligently is fundamental. 
  3. [151]
    In my view, it cannot be said that the applicant ought to have been aware that she had a worthwhile cause of action (Do Carmo v Ford Excavations)[15] on the strength of her lay opinion; or that her lay opinion should have “induced her to sue” (see Pincus JA in Ervin v Brisbane North Health Authority).[16]  Having regard to the complexities of this matter (cf the simpler case in Berg v Kruger Enterprises),[17] appropriate advice given at the time at which the section 9A notice was completed would have been that the applicant’s lay opinion about the cause of her blindness provided an inadequate foundation for a cause of action. 
  4. [152]
    In my view, subject to what I say later about the actual opinion expressed in Dr Cohn’s report, it was the receipt of his report which, from the applicant’s perspective, “transformed” (cf Sugden v Crawford [18] at 686) her case from one she hoped to be able to bring to one which she could (from her perspective) realistically bring.  

Was Dr Cohn’s report a material fact as per section 30(1)(a)(i) or (iii)?

  1. [153]
    The authorities about material facts of a decisive character to which I was referred did not expressly consider whether an equivocal fact could be decisive.  However, I note that sub-section 30(1)(a)(i) refers to “the fact of the occurrence of negligence” et cetera and sub-section 30(1)(a)(iii) refers to “the fact that the negligence …causes personal injury” (my emphasis).  The definitions are in absolute terms. 
  2. [154]
    The respondent relied upon McMurdo J’s reference in Pikrt to unequivocal opinion as the basis for his argument that an equivocal opinion cannot be a material fact of a decisive character.  The relevant passage from Pikrt is referred to above.  I will reproduce it below for convenience.  After observing that, at the time at which the applicant had knowledge of medical opinions which were either adverse to his case or equivocal, a reasonable person, with appropriate advice on those facts would not have regarded them as showing that he ought to sue, his Honour said (my emphasis) –[19]

The appropriate advice would be different with the addition to those facts of the availability of opinion evidence, unequivocally to the effect that he had a serious and permanent injury which was caused by the accident.  The existence of that medical opinion was thereby a material fact of a decisive character.

  1. [155]
    Obviously, his Honour was distinguishing between equivocal and unequivocal medical opinion for the purposes of finding that an applicant was not at “fault”, in a relevant sense, for not acting on an equivocal medical opinion.  The respondent here seeks to rely on the equivocation in Dr Cohn’s report to the detriment of the applicant to argue that it could not amount to a material fact of a decisive character because it could not (in the respondent’s submission) be regarded as showing the applicant that she ought to sue. 
  2. [156]
    Dr Cohn’s report does not state with any clarity that the respondent failed to exercise reasonable care in his treatment of the applicant.  Nor in my view does it canvas adequately the matters relevant to the cause of the applicant’s blindness.  The respondent’s position – that an equivocal opinion cannot amount to a material fact of a decisive character – is an arguable one.  Of course, from the applicant’s perspective, Dr Cohn’s report did provide the evidence of the respondent’s negligence which she needed before suing.
  3. [157]
    I prefer to leave consideration of the equivocal nature of Dr Cohn’s opinion to the point at which I am required to consider whether the applicant has evidence to establish a right of action. 
  4. [158]
    I am prepared to proceed on the basis that Dr Cohn’s report was a material fact of a decisive character, without reaching a concluded view about it.

Submissions – Whether the material and decisive fact was within the means of knowledge of applicant before receipt of Dr Cohn’s report

Applicant’s submissions

  1. [159]
    The applicant submitted that she was not aware that there was any basis upon which to commence an action against Dr Reader until she (through her lawyers) received Dr Cohn’s report on 15 September 2016.  Her understanding of things, up until July 2015, was based upon the statements made by Associate Professor Lee that she had suffered an “unfortunate reaction” to the medication prescribed by Dr Reader and that there was nothing more he could have done.  She, reasonably, trusted Associate Professor Lee and had no reason to doubt what he told her or to follow up with further investigations or to ask further questions.   
  2. [160]
    Relying on Healy v Femdale,[20] the applicant submitted that she was not required to take appropriate advice or ask appropriate questions.  Relying on Ervin v Brisbane North Health Authority,[21] she submitted that it was reasonable for her to wait until her lawyers received Dr Cohn’s report.
  3. [161]
    Although she contacted lawyers in July 2015, that was not related to any personal injuries claim and it was only by chance that she and Mr Koolik spoke about her blindness and he suggested to her that she should not necessarily accept Associate Professor Lee’s advice.  That was not advice that she had a cause of action against Dr Reader.  Thereafter she took reasonable steps to attempt to find a lawyer who took on medical negligence work.  Once she found one, she followed their advice.  It was not until the expert report was received in September 2016 that a material fact of a decisive character enlivened in the applicant any belief that she was able to pursue an actionable claim. 
  4. [162]
    The applicant’s oral submissions included the following – 
  1. (a)
    It was reasonable for Lime Lawyers to request documents from the respondent’s practice on 22 July 2015 and to refer the applicant on to other lawyers who practised in medical negligence;
  1. (b)
    When initial instructions were given to Monaco Solicitors in September 2016, there was “no basis to plead a claim at that point in time”;
  2. (c)
    The point of the section 9A initial notice is to “put somebody on notice that there is a potential claim”.
  3. (d)
    Section 9A requires the notice to include “(e) a description of the medical services alleged to have given rise to the personal injury”.  As to the following statement, “Due to the failure to adequately treat her glaucoma, the claimant has been left with permanent blindness of the right eye and ongoing disabilities as a result” –

“There could not be a more generic term.  That was in order to give effect to 9A, to give effect to the entitlement to discovery.  There would be no basis at that point in time to be able to plead a statement of claim.  One puts oneself in that position and says, “Okay, we need to do something.  The only thing that can be done is to file a claim”. And how would one plead that claim?  There’s no documents.  There’s no material.  There’s no evidence of negligence.

At best there is a surmise that, well, all right, Dr Reader provided treatment and she went blind, well, okay, but I don’t see how in good conscience anybody could plead a case identifying and particularising the breach of duty that occurred by the treatment would allow someone to plead a claim.” 

  1. (e)
    On the date the section 9A notice was sent (2 October 2015), the applicant was given advice by her lawyers that the “first step” was to obtain expert medical evidence to “ascertain that [her] case had reasonable prospects of success”.  Although the applicant and her daughter were told about limitation periods, their evidence was that they had not been told that the limitation period was expiring, or that they had to do something urgently and –

“There is no way on God’s green earth than an expert report could’ve been got by the end of October.”

The only finding which would deny the applicant’s application for an extension was a finding that the solicitors could have obtained an expert’s report by 23 October 2015.[22]  The fact that there was some delay in obtaining the report was of no relevance – the claim was filed “in time”, in October 2016. 

  1. (f)
    The applicant was entitled to rely upon her solicitors and there was nothing “outrageous” in her (or a person in her position) not following them up.

Respondent’s submissions

  1. [163]
    The respondent submitted that the applicant’s evidence did not establish that the matters set out in Dr Cohn’s report were not within her means of knowledge at the relevant time.  He focused on the delay in obtaining Dr Cohn’s report.  He submitted that despite instructing (through her daughter) Lime Lawyers to forward her medical records to them in July 2015, there was no evidence of steps taken by Lime Lawyers on her behalf.  The next step was her contact with Monaco Solicitors, in September 2015, who discussed the possibility of a legal claim.  They opened their file on 16 September 2015 and issued the section 9A initial notice on 2 October 2015 which alleged the respondent’s negligence.  Later that month her cause of action became statute barred. 
  2. [164]
    The respondent submitted that there was no evidence that the applicant had not been advised until after her cause of action became statute barred that she would require an independent expert to review her treatment to advise whether it was reasonable.  Instead, her evidence and the evidence of her solicitor was “entirely silent” as to when that advice was provided.  The respondent continued, “It should be inferred that that omission is deliberate, and that the evidence (if given) would have been that Mrs Smith was given that advice before her claim became statute barred”. 
  3. [165]
    As it turns out, the timing of the advice is not something I need to infer – there is evidence about it.  Mr Porthouse said that the applicant received a letter from Monaco Solicitors on 2 October 2015 which included the following statement –

Our preliminary view is that your claim should be investigated in order to ascertain whether you are entitled to receive compensation for your losses.  Once we have received all of your clinical notes … we will be able to engage an ophthalmologist for advice on whether the injury to the eye was caused by the use of Chlorsig and whether the injury was negligently caused.[23]

  1. [166]
    The applicant’s claim became statute barred by 17 October 2015 at the latest – although there were other earlier possibilities.  I proceed on the basis that the applicant was informed, at about the time at which her action became statute barred, that expert advice was necessary.  I infer that, at that time, the applicant and her solicitors were unaware of the significance of the administration of Prednefrin Forte in the applicant’s treatment.
  2. [167]
    The respondent observed that an expert’s report was not (first) sought by Monaco Solicitors for more than six months after they opened their file; five months after they served the initial notice; and three months after they had received the last of the clinical records.  Neither the applicant nor her solicitors could explain that delay.  Their silence was, the respondent said, “telling”.
  3. [168]
    Then, observed the respondent, another four months elapsed before the letter to Dr Cohn was re-sent (that is, on 29 July 2016).  The reason for the delay was unexplained and the letter made no call for urgency.  Nor was there an explanation for the delay between 29 July 2016 and the letter actually seeking the report (dated 19 August 2016).
  4. [169]
    The respondent submitted that, there being no explanation for the delay in seeking the report between the time at which the applicant was alerted to the possibility of a claim by her lawyers (September/October 2015) and the seeking of an expert’s report (August 2016), the applicant had failed to prove that the contents of the report were not within her means of knowledge at the relevant time.

Was the material fact of a decisive character within the applicant’s means of knowledge before 24 October 2015 (the critical date)?

  1. [170]
    The applicant cannot succeed if she has unreasonably delayed in obtaining the necessary advice or information.  I am to consider what might reasonably be expected of Mrs Smith.
  2. [171]
    On the evidence, after July 2015 and before Dr Cohn’s report was received by her lawyers, the applicant –
  • knew that blindness followed her treatment by the respondent;
  • knew that she should not take the opinion of Associate Professor Lee as the final word on the matter of the adequacy or appropriateness of the respondent’s treatment; and
  • had a view, shared by her daughter, that the respondent had treated her inadequately, leading to her blindness. 
  1. [172]
    The applicant is an older, blind woman, who relied on her daughter in her dealings with her lawyers.  It was not submitted that the applicant’s daughter was vulnerable in any sense, although she was plainly unfamiliar with legal proceedings and apparently had no sense of “reasonable” timeframes in the context of personal injuries litigation.
  2. [173]
    The evidence of the applicant’s daughter was to the effect that she and her mother were passive when it came to her mother’s claim.  The lawyers were driving it and they were the “passengers”. 
  3. [174]
    On the evidence presented at the hearing, relevant steps to progress the action were separated by months.  Over those months of inaction, the applicant’s solicitors did not initiate contact with the applicant or her daughter, nor did the applicant or her daughter initiate contact with the solicitors. 
  4. [175]
    There was no evidence that the applicant’s lawyers were in touch with her between 17 November 2015 (when she signed the costs agreement) and 23 September 2016 (when she was informed about the content of Dr Cohn’s report) or evidence that she or her daughter got in touch with them over that period.
  5. [176]
    The delay between making the decision to get a report from Dr Cohn in January 2016 and writing to Dr Cohn on 15 March 2016 has not been explained.  Whether that 15 March 2016 letter was sent to Dr Cohn or not – he did not reply to it.  There was no evidence that Ms Aravena, who assumed carriage of the matter in April 2016, did anything to follow up Dr Cohn. 
  6. [177]
    It was not until Mr Burge assumed carriage of the matter in July 2016 that anything was done about obtaining the report.  Mr Burge re-sent the letter on 29 July 2016.  Without repeating the evidence of what happened next, in my view, the report was received by Mr Burge within a reasonable period of time thereafter. 
  7. [178]
    One may be quite critical of the lawyers failing to follow up on their letter of 15 March 2016 and one may imagine efficient solicitors obtaining Dr Cohn’s report much sooner than September 2016.  However, I am prepared to proceed on the basis that, although the solicitors did not move things along quickly, the stage had not yet been reached at which the applicant and her daughter, acting reasonably, in the face of their lawyer’s delay, ought to have sought other legal advice or taken other action (cf Ervin v Brisbane North Health Authority,[24] and Wolverson v Todman,[25] in which Gotterson and Holmes JJA found that the applicant had not taken all reasonable steps to ascertain the material fact by the critical date, McMeekin J dissenting on this point)The delay between 17 November 2015 (when the costs agreement was signed) and 23 September 2016 (when the applicant was told about Dr Cohn’s report) is not so lengthy as to lead me to conclude that it was unreasonable for the applicant, in her personal circumstances, to wait as long as she did, and as passively as she did, for her lawyers to obtain a report.
  8. [179]
    It therefore appears that the material fact of a decisive character contained in Dr Cohn’s report was not within the applicant’s means of knowledge before she in fact received the report.

Submissions – Evidence to establish a right of action

  1. [180]
    This is one of the critical issues in this case. 

Applicant’s submissions

  1. [181]
    The applicant relied upon Dr Cohn’s first report as providing evidence of the respondent’s negligence and as providing evidence that the respondent’s negligence caused the applicant personal injury. 
  2. [182]
    In particular, the applicant relied upon selected statements from Dr Cohn’s first report.  The selected statements appear in bold below.  For obvious reasons, it is necessary to read those statements in context and I have placed them in context below (errors in original):
  • The continued use of the potent agent, Prednefrin Forte, would be consistent with peer opinion under the circumstances described of intense white cell infiltrates and slow response.  It is incumbent on the clinician who is prescribing the treatment and monitoring the pressures to treat the pressure elevation aggressively.
  • The pressure rise should have been treated from the time that a pressure rise was recorded at two weeks [that is, after the initial two-week course, on 21 August 2012].

Mrs Smith is seen in the extremely constrictive fields of vision supplied from before the adenoviral keratoconjunctivitis to have been suffering from a very advanced glaucoma.

  • Failure to lower the eye pressures induced by steroid therapy is a departure from the standard of care.  The notes do indicate that few options for further lowering of the eye pressures could be identified.  [The applicant agreed that that statement in bold should be taken to mean “The failure to take steps to lower the eye pressure …”]

[Dr Cohn was asked what steps the respondent ought to have taken.  He said, “Standard management [my emphasis] would have entailed additional treatment once the pressure rise was noted.  According to the January 2012 referral from the optometrist, Mr. Simon Little, Mrs Smith had initially presented to Dr Reader on the three most potent agents available … Dr Reader did add Diamox tablets for further pressure control on 27 September 2012.  Surgical intervention would have posed a very high risk of losing all central vision on either side”.] 

  • The notes suggest that by 30 October 2012, the infiltrates were still present and the pressures were very high.  No further medical therapy could have been introduced … It is likely that the only pressure lowering intervention possible at that stage would have been surgery.  Where filtering surgery is undertaken in the presence of tunnel vision, a state which had applied when Dr Reader first saw Mrs Smith, there is a high risk of loss of all central vision.  At this stage FML drops … was introduced.  Under Dr Graham Lee, the eye pressure control was improved by laser destruction of part of the eye’s fluid production mechanism.  Maximum medical therapy was still required in addition to this.  The only option which was available to Dr Reader for improved control of the eye pressures once they had risen on Prednefrin Forte would have been referral to Dr Graham Lee for such a procedure … Had Mrs Smith been referred to Dr Graham Lee earlier for control of the steroid-aggravated intraocular pressures, it is likely that a better vision outcome would have been achieved.  The tunnel fields of vision could not have been improved.  A better level of central vision might have been maintained.   
  1. [183]
    The applicant acknowledged that Dr Cohn’s evidence gave rise to a prima facie case “only”, which “may not be the strongest case in the world on paper”.  It was submitted that it did not matter that the applicant might have gone blind at some point in the future – there was no reason to think blindness was imminent.  The likelihood of the maintenance of a “better level of central vision” was a matter for trial. 

Respondent’s submissions

  1. [184]
    The respondent submitted that the applicant failed to establish a prima facie case of negligence – acknowledging how low the bar was.  The respondent submitted that the only suggestion of negligence in Dr Cohn’s report was in the last sentence in bold extracted above.  But that was not good enough because –
  • the fact that a better vision outcome “might” have been achieved had different action been taken is not sufficient to establish negligence; and
  • the suggestion that the respondent ought to have referred the applicant to Associate Professor Lee earlier was inconsistent with other statements in his report about the high risks associated with that surgery; and inconsistent with his apparently accepting that the respondent acted appropriately on 27 September 2012 by adding a further medication for pressure control.
  1. [185]
    The respondent submitted that it was not appropriate for the applicant to “cherry pick” from Dr Cohn’s report.  He submitted that, on a proper analysis of Dr Cohn’s report, the applicant failed to produce evidence that the respondent breached his duty to her and that his breach of duty caused her loss.

Is there evidence to establish the right of action?

  1. [186]
    The parties proceeded on the basis that the only potential source of the evidence of a right of action was the report of Dr Cohn (read with the evidence of the applicant and her daughter).
  2. [187]
    Notwithstanding the ambiguity in Dr Cohn’s report, the applicant’s solicitors made no attempt to have Dr Cohn explain or clarify his opinions in 2016, 2017 or 2018. 
  3. [188]
    A supplementary report was not requested from Dr Cohn until 2019.[26]  And the questions asked of Dr Cohn, for the purposes of the supplementary report, were not focused on clarifying his original report.[27] 
  4. [189]
    For obvious reasons, it is not appropriate to select sentences from Dr Cohn’s report, out of their full context, and combine them to suggest that Dr Cohn’s evidence establishes a cause of action in negligence.
  5. [190]
    To say that I must answer the question (whether it appears that there is evidence to establish the right of action) on the basis of the evidence produced by the applicant unopposed, or at its highest, does not mean that I must ignore obvious deficiencies in that evidence, or draw inferences from it which may not be reasonably drawn, or confabulate to fill its holes.
  6. [191]
    Dr Cohn did not contemplate, as a step which the respondent ought to have taken on 21 August 2012, an instruction to the applicant to cease the steroid eye drops.  Rather, he considered the continued use of Prednefrin Forte “consistent with peer opinion” in the face of the virus’s slow response to treatment in the applicant’s case. 
  7. [192]
    He thereafter, as I read his report, drew a distinction between treating the elevation of IOP in a usual “steroid responder”, and treating the elevation of IOP (in response to the steroid drops) in the case of the applicant, who was suffering from a very advanced glaucoma. Thus, after stating that the continued use of Prednefrin Forte was consistent with peer opinion, he continued –

It is incumbent on the clinician who is prescribing the treatment and monitoring the pressures to treat the pressure elevation aggressively.  This intervention should have been introduced as soon as a significant pressure rise was noted.  This can usually be accomplished by means of eye drops or tablets, with surgery being the fallback position.

  1. [193]
    In his opinion, the pressure rise should have been treated from the time at which it was recorded at two weeks, but he emphasised the applicant’s very advanced glaucoma and noted that few options for lowering her IOP (beyond the agents she was already administering) could be identified.  Whilst surgery was an option, it was risky.
  2. [194]
    Doing the best I can to reasonably interpret Dr Cohn’s first report, his opinion is as follows –
  • the applicant had a serious pre-existing condition;
  • the viral infection itself – if left untreated – would damage the applicant’s vision because –
    • in the immune phase of the infection, white blood cell infiltrates were created in the corneal substance;
    • the infiltrates interfered with vision to a marked degree; and
    • without treatment, there would be scarring which would cause “a permanent impediment to vision”;
  • the respondent had to treat the applicant to prevent such scarring;
  • the introduction of a potent steroid such as Prednefrin Forte was “mandatory” to prevent the scarring – whether the applicant had glaucoma or not;
  • there was a risk that Prednefrin Forte would elevate the applicant’s IOP and that risk eventuated in the applicant’s case;
  • although it was incumbent upon an ophthalmologist to treat the pressure elevation aggressively, there were few options available to the respondent for lowering her IOP on 21 August 2012 – she was already on the three most potent options available;
  • continuing the applicant’s treatment with Prednefrin Forte until 27 September 2012 (in the face of the virus’s slow response to treatment) was consistent with peer opinion (in other words, it was reasonable);
  • it was appropriate to try Diamox on 27 September 2012;
  • the only option available to the respondent was surgery, but it carried a high risk of loss of central vision;
  • assuming none of the risks eventuated, a better level of central vision might have been obtained, although the tunnel fields of vision (a condition existing at the time of the applicant’s first consultation with the respondent) could not have been improved.
  1. [195]
    Dr Cohn’s report – even reading it as generously as I can for the applicant – does not provide evidence of the respondent’s failure to conform to the standard of care expected of a reasonable ophthalmologist.  Rather, it conveys Dr Cohn’s acknowledgment of the difficult and limited choices available to the respondent in his treatment of the applicant’s eye infection in the setting of her advanced glaucoma; and the high risks of surgery to treat her elevated IOP.  To say that if the respondent had referred the applicant for surgery sooner, then a better outcome might have been achieved, is a long way from saying that the respondent was negligent for not so referring her.
  2. [196]
    Further, even if Dr Cohn’s report might be read in such a way as to convey an allegation of negligence on the part of the respondent, Dr Cohn’s report does not address the issue of causation in an adequate way.  It does not discuss what might have happened to the applicant’s viral infection had the respondent treated her differently.[28]  Nor does it address at all the inevitability or otherwise of her blindness. 
  3. [197]
    In my view, Dr Cohn’s report (in combination with the evidence of the applicant and her daughter) does not provide evidence of a prima facie cause of action in negligence. 

Whether “it appeared” from evidence apart from Dr Cohn’s report that the applicant had a right of action

  1. [198]
    It may be noted that the question posed by section 31(2)(b) is whether “it appears to the court that there is evidence to establish the right of action” (my emphasis). 
  2. [199]
    The wording of the section caused me to consider whether I was entitled to look elsewhere in the evidence before the court (beyond Dr Cohn’s first report) for evidence to establish the right of action (that is, evidence in the applicant’s favour).
  3. [200]
    I sought further submissions from the parties about this matter, drawing their attention to the wording of the section.  The parties were strongly of the view that I was not permitted to look beyond Dr Cohn’s first report for evidence to establish the right of action.[29] 
  4. [201]
    As against the parties’ view, it may be noted that –
  • in Wood v Glaxo,[30] Macrossan CJ said that “the extent to which an applicant must show a case” depended frequently on the “impression on the judge’s mind of the material which the applicant presents or the existence of which he demonstrates or points to” (my emphasis);
  • the Court of Appeal in NF[31] made no criticism of the primary judge for considering evidence adduced by the respondent Department of Children’s Services (plainly for the purposes of showing that the Department had not been negligent in its treatment of NF while she was a child in its care) in determining whether there was evidence to establish a right of action; and
  • in dismissing the appeal from the primary judge’s decision to extend time in NF, Keane JA spoke in terms of “the evidence before the learned primary judge”[32] to establish the right of action, not the evidence presented by NF.
  1. [202]
    It seems to me that the language of the section is plain and I am entitled to consider all of the evidence before the court to determine whether “it appears” that there is evidence to establish the cause of action.  This would include Dr Vote’s report. 
  2. [203]
    I hasten to add that I appreciate that I could not use Dr Vote’s report to detract from other evidence of a prima facie cause of action in negligence.  However, in my view, one may glean from Dr Vote’s report an opinion that a failure to instruct the applicant to cease the Prednefrin Forte would not have been clinically appropriate. 
  3. [204]
    I would have been receptive to a submission by the applicant’s counsel that, if I considered Dr Cohn’s report inadequate, he could “point to” evidence to establish a breach of the standard of care in the combination of (a) the inference to be drawn from Dr Vote’s opinion that the reasonable management of the applicant’s IOP called for an instruction on 21 August 2012 that she cease the Prednefrin Forte and, (b) the evidence of the applicant and her daughter that she had not been given that instruction.
  4. [205]
    Of course, such a submission was not made to me.  And regardless, evidence of a cause of action in negligence also requires evidence of causation.  Reading Dr Vote’s report reasonably, and as a whole, would not assist the applicant on the causation element of negligence.  Dr Vote’s evidence was to the effect that the applicant’s total blindness was most likely inevitable, “irrespective of any clinicians’ actions or specific events”.
  5. [206]
    Thus, whether it was appropriate for me to go beyond Dr Cohn’s report or not, it does not appear to me that the applicant can point to evidence to establish the right of action.  The requirements of section 31(2)(b) have not been met.

The discretion

  1. [207]
    Having found that the requirements of section 31(2)(b) have not been met, my discretion to extend the period of limitation for the action has not been enlivened.  However, I wish to make certain observations about the arguments made to me about the exercise of my discretion in case they become relevant.

The fairness of any trial

  1. [208]
    The respondent submitted that, in the exercise of my discretion, I ought not to extend the limitation period.  He submitted – in effect – that he would suffer prejudice, in the sense that a fair trial could not be had, if I were to grant the application because of the effect of time on his memory and on the applicant’s memory.  He submitted that if the court was concerned about prejudice to the applicant, it could take comfort in the fact that she may have a claim against her solicitors. 
  2. [209]
    The respondent submitted that because the oral instructions given by the respondent to the applicant on 21 August 2012 were a critical factual issue in the case, the lapse of time made a fair trial a virtual impossibility.  The respondent referred to paragraph [51] of NF,[33] in support of that submission.  In that paragraph, Keane JA referred to the contrast made in Brisbane South[34] between a case turning upon the terms of a conversation and one which turned on the terms of a document.
  3. [210]
    The applicant acknowledged that if a fair trial for the respondent was unlikely, then there should be no extension to the limitation period.  She referred to the judgment of Kirby J in Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 304, for his Honour’s explanation of the term “a fair trial”.  In that case, where the issue was whether a fair trial could be had after a delay of 29 years (indeed, 40 years, by the time the appeal to the High Court was heard), his Honour said (my emphasis) –

[162] ... Simply because a case appears to be difficult to prove or has evidentiary weaknesses disclosed in a preliminary examination where summary relief is claimed, does not mean that a trial, in the normal way, would necessarily be unfair.  The contrary is the case.

[163] Fair trial is fair to both sides: In Holt,[35] Priestly JA, in dissenting reasons, although in words that I regard as uncontroversial, said:

“One thing seems to be clear: that is that the term [“fair trial”] is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case.  Further, for a trial to be fair it need not be perfect or ideal.  That degree of fairness is unattainable.  Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court.  Time and chance will have their effect on evidence in any case, but it is not usually suggested that the effect necessarily prevents a fair trial.

  1. [211]
    The applicant relied particularly on paragraph [163] above and submitted that there was no basis for thinking that there could not be a fair trial in this matter.  The most that could be said by the respondent was that it should be presumed that, because relevant events occurred several years ago, “people aren’t going to remember oral conversations”.  The applicant submitted that there was no such presumption which “[rose] to such a level that an application like this would be defeated”. Further, the respondent was put on notice “bang on the limitation period” by the section 9A initial notice and there was  no evidence from the respondent that he could not remember anything.  Indeed, his defence included “positive allegations of verbal communications that occurred” – in particular, that on 21 August 2012, he instructed the applicant to cease Prednefrin Forte “forthwith” and he repeated that instruction, having learnt that she did not cease it, when he saw her next on 27 September 2012. 
  2. [212]
    Had the applicant been able to point to evidence to establish the cause of action, I would have concluded that the issues could be fairly litigated.  On the hearsay evidence before me, the respondent has notes of his treatment of the applicant, including a note which suggests that he instructed the applicant to cease the Prednefrin Forte on 21 August 2012.  Whilst the memory of the applicant herself might be failing, her daughter was present at all relevant times and the respondent’s recollection of his instructions to the applicant may be put to the applicant’s daughter as well as to the applicant herself.[36]

The interests of justice

  1. [213]
    The respondent submitted that it was not in the interests of justice to grant the extension because the applicant’s prospects of success were poor.  He relied on Dr Vote’s report, Dr Cohn’s supplementary report and the opinion of Associate Professor Lee (that there was nothing more the respondent could have done) – noting that the applicant had not objected to Dr Vote’s report and had herself tendered Dr Cohn’s supplementary report.  The applicant submitted that I ought to ignore the evidence of those three doctors.
  2. [214]
    Professor Lee’s opinion is of such little weight (because of the circumstances in which it was expressed and the form in which it was tendered) that I will say nothing more about it.
  3. [215]
    Dr Cohn is the applicant’s expert.  I do not consider that it would have been proper for me to ignore the content of his supplementary report in the exercise of my discretion.  Arguably, it was also relevant to my consideration of the question whether it appeared to the court that there was evidence to establish the right of action.  In any case, it did not assist the applicant.  Rather, it reinforced the complexity of the applicant’s conditions and their treatment. 
  4. [216]
    I was taken to no directly relevant authority on the relevance of Dr Vote’s report to the exercise of my discretion.  However, I note that in Walker v Tucker [2019] QSC 141 at [101], Brown J referred to a respondent’s evidence in dealing with an argument about the weakness of an applicant’s case in the context of the exercise of her discretion. 
  5. [217]
    Because there was limited argument about it and because there is no need for me to reach a view about it, I will make no further comment about the relevance of Dr Vote’s opinion to the exercise of my discretion.

Conclusion

  1. [218]
    I am not satisfied that the requirements in section 31(2) of the Limitations of Actions Act 1974 (Qld) have been met.
  2. [219]
    The application is dismissed.
  3. [220]
    Unless a party wishes to be heard on the question of costs, I order that the applicant pay the respondent’s costs of the application.
  4. [221]
    If a party wishes to be heard on the question of costs, they are to contact my associate by email by 4 pm on 25 March 2020.

Footnotes

[1]According to the respondent, her IOP was 21mmHG (left) and 27 mmHG (right).

[2]According to the respondent, her IOP was 28 mmHG (left) and 24 mmHG (right).

[3]According to the respondent, her IOP was 35 mmHG (left) and 37 mmHG (right).

[4]Neither the applicant nor her daughter said anything about the applicant being instructed to use Systane at this visit.  The effect of their evidence, which is consistent with the defence, is that the respondent added Diamox to the applicant’s prescriptions (of Ganfort and Alphagan) and told her to cease the Prednefrin Forte.

[5]According to the respondent, her IOP was 42 mmHG (left) and 32 mmHG (right).  According to the amended statement of claim, the applicant’s IOP was “in the 30s” on the left and 42 mmHG on the right.

[6]According to the respondent, the applicant’s IOP was 30 mmHG (left) and 25 mmHG (right).  I note that, on the respondent’s measurements, there had been a significant reduction in the applicant’s IOP since 10 October 2012.

[7]For what it is worth, the affidavits of the applicant and her daughter (which in many respects “echo” each other in a way that suggests one was used as the template for the other) both state that Dr Lee told the applicant to continue to use Travantan and Azarga.  On the evidence before me, these were not the medications previously prescribed to the applicant.

[8]The request was entitled “Medical Authority”.  It was addressed to Northpoint Eye Care (the respondent’s practice) and it “authorised and directed” the practice to send to Lime Lawyers “such details as they may require concerning medical treatment received by me” (my emphasis).  Of course, it ought to have referred to the treatment received by the applicant – not Ms McCafferty.  However, the evidence suggests that the applicant’s current solicitors were in possession of the respondent’s records in October 2015, which in turn suggests that the respondent acted on the Medical Authority by providing the applicant’s records to Lime Lawyers.

[9]Which was signed by the applicant and returned on about 18 November 2015.

[10]I note the reference to the applicant’s “right eye” in this letter and the section 9A notice.

[11]Mr Porthouse conceded that at least a month before the receipt of Dr Cohn’s report (that is, on 11 August 2016), his firm was aware of Dr Cohn’s opinion about the applicant’s negligence.  

[12]See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551, quoting R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC.

[13](1984) 154 CLR 234.

[14] [2006] QCA 112.

[15](1984) 154 CLR 234.

[16][1994] QCA 424.

[17][1990] 2 Qd R 301.

[18][1989] 1 Qd R 683.

[19]Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [50].

[20][1993] QCA 210.

[21][1994] QCA 424.

[22]This submission accords with my determination of the critical date.

[23]The reference in this statement to Chlorsig, not Prednefrin Forte, may be noted.

[24][1994] QCA 424.

[25][2016] 2 Qd R 106.

[26]The date of his supplementary report was 15 July 2019.  It must have been requested before that date.

[27]I should add though that the applicant did not seek to rely upon Dr Cohn’s supplementary report as evidence to establish a right of action.

[28]I note that, on 30 October 2012, the infiltrates were still present despite treatment with Prednefrin Forte until 27 September 2012.

[29]An email was sent to the parties requesting submissions on 14 February 2020. The applicant’s submissions in response were received on 25 February 2020. The respondent’s submissions were received on 3 March 2020.

[30][1994] 2 Qd R 431.

[31][2005] QCA 110.

[32]NF v State of Qld [2005] QCA 110 at [41].

[33][2005] QCA 110.

[34](1996) 186 CLR 541.

[35](2000) 49 NSWLR 128 at 142 [79]; [2000] NSWCA 143 (emphasis in original).

[36]For completeness I note that in reaching that conclusion, I have also considered HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 and VMT v The Corporation of the Synod of the Diocese of Brisbane & Anor [2007] QSC 219.

Close

Editorial Notes

  • Published Case Name:

    Smith v Reader

  • Shortened Case Name:

    Smith v Reader

  • MNC:

    [2020] QSC 48

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    23 Mar 2020

Litigation History

No Litigation History

Appeal Status

No Status