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Vacic v Salter

 

[2012] QCA 53

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

SC No 509 of 1995

Court of Appeal

PROCEEDING:

Application for Extension of Time

ORIGINATING COURT:

DELIVERED ON:

16 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2012

JUDGES:

Margaret McMurdo P and Chesterman JA and Margaret Wilson AJA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time to appeal is refused, with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where respondent performed surgery on the applicant – where applicant claimed damages for personal injury and other loss allegedly caused by the respondent's negligence and/or breach of contract and/or misleading and/or deceptive conduct – where primary judge gave judgment for the respondent on 29 April 2003 – where applicant applied for extension of time to appeal against that order almost eight and a half years later – whether applicant demonstrated that the interests of justice supported granting the extension of time to appeal

Jelicic v Salter [2003] QSC 103, considered

COUNSEL:

The applicant appeared on her own behalf

G W Diehm SC for the respondent

SOLICITORS:

The applicant appeared on her own behalf

Flower & Hart for the respondent

[1] MARGARET McMURDO P:  In December 1992, the respondent, an obstetrician and gynaecologist (now retired), performed a total abdominal hysterectomy and left salpingo-oophorectomy on the applicant.  She believed she suffered resulting injuries.  She brought a claim against him in the Trial Division of this Court for $14,752,000 for personal injury and other loss and damage allegedly caused by his negligence and/or breach of contract and/or misleading and/or deceptive conduct.  The case was heard over six days in February 2003.  Her young adult son was her litigation guardian at trial because of her incapacity to conduct the litigation as a result of psychiatric problems.[1]  He was not legally represented.  On 29 April 2003, the primary judge gave judgment for the respondent.[2]   Almost eight and a half years later, on 16 September 2011, she applied for an extension of time to appeal against that order.

[2] The applicant appeared in this application self-represented and without a litigation guardian.  She was born in Serbia and came to Australia in the mid-1970s when she was about 14 years old.  She spoke with an accent and it was plain that English was not her first language, but she communicated effectively with the Court and both her oral and written submissions were lucid.

The applicant's contentions

[3] In her application she gave the following reasons to justify the extension of time:

 

"1.I base application for appeal on a mis-exercise of discretion of the learned judge, Helman J. mistakes include not making rulings on evidence that deny a person a chance to be successful in the out come.  Wrongful admission and wrongful rejection of evidence .The outcome at trail would have been different had the correct principles been applied.

2.I submit that the learned judge erred in giving no or insufficient weight to material factors presented by the pathology report and the lack of consent obtained for a hysterectomy of healthy organs.

3.I submit that the learned judge made an error of law that the defendant and his father were not legally bound to obtain consent form, which is inconsistent with a Queensland Health directive, failed to find respondent negligent, fact were healthy organs have been removed with out correct diagnosis for and with out informed consent.

My grounds are based on evidence." (errors in original)

[4] By way of attempting to explain the extraordinarily long delay in pursuing an appeal, she stated that she had doubts about the authenticity of the copy of the judge's reasons she was given because it was not signed or stamped with any court logo.  Whilst she understood that the 28 day time period in which she was required to lodge an appeal had expired, her financial difficulties prevented her from obtaining transcripts of the trial.  She was very unwell because of the injuries she suffered at the hands of the respondent.  She had very little money to pay a filing fee or purchase the transcripts necessary to prepare an appeal record book.  Her son suffered a life-threatening illness and she redirected her time to learn about the causes and treatment for cancer.  She also undertook an open university course in forensic psychology. 

[5] These explanations do not provide satisfactory reasons for an eight and a half year delay in pursuing her appeal, especially in the absence of supporting medical reports.  It seems that she knew her appeal needed to be lodged within 28 days but she, or perhaps her litigation guardian, decided not to lodge one.  An impecunious litigant can apply for and is often granted a waiver of filing fees and assistance in the preparation of an appeal record book. 

[6] Despite the eight and a half year delay, if the applicant demonstrated that the interests of justice clearly supported the granting of an extension of time to appeal, this Court would do so.  In determining her application to extend time, it is necessary to consider her proposed grounds of appeal which are as follows:

 

"The order was wrong: There is evidence in judgment pathology report that defendant removed healthy organs. Evidence in transcript day 4. Defendant admitted he had no consent and had no consent for his father to help him to remove my organs."

[7] In her oral submissions, she contended that she knew nothing about adhesions being the respondent's reason for performing her surgery until he gave his evidence at trial.  She submitted that her reproductive organs were healthy and should never have been removed; the respondent was negligent in doing so and did not have her consent.  The pathology report of Dr Papadimos relating to the removed organs did not reveal any malignancy.  She emphasised the report she tendered at trial from two Serbian gynaecologists and obstetricians which, she claimed, supported her submissions.  She handed up some papers from a Medicare Benefits Schedule but these were irrelevant to the issues for consideration in the application.

[8] The applicant also raised her concern about the involvement of the respondent's father, a retired obstetrician and gynaecologist, as an assistant in her surgery without her consent.  She claimed that, contrary to the respondent's assertions at trial, his father was not deceased.  She based this claim on a photocopy of an envelope addressed to Mr Don Salter.  She contended that the primary judge should have found both the respondent and his father grossly negligent in removing her organs without consent. 

The primary judge's reasons

[9] Before discussing these contentions it is useful to first summarise the primary judge's reasons.[3]  His Honour explained that the applicant had a long history of pelvic discomfort and pain.  She was the respondent's patient from October 1988 until August 1994. 

[10] Prior to this, she underwent a right ovarian cystectomy in 1980, tubal surgery in 1981, and laparoscopies for ovarian cysts in 1982.  In 1985, she told a doctor she had undergone ten laparoscopies in the last four years.  In 1984 she complained of abdominal fullness, pressure and pain.  She had a laparoscopy on 7 June 1984 during which a four centimetre cyst was aspirated.  In March 1986, she attended the gynaecology outpatients department at the Mater Hospital and reported three to four weeks of pain in her right side.  The pain did not disappear completely after a course of antibiotics so another laparoscopy was performed on 24 April 1986 when a left ovarian cyst was aspirated.  She was still in pain on 21 May and 30 July 1986.  In October 1987 she complained of a painful right iliac fossa.  She was to have another laparoscopy in May 1988 but on admission was found to be pregnant; the laparoscopy was cancelled and the pregnancy terminated.  Later that month, a right salpingo-oophorectomy was performed.  In September 1988, she returned to the Mater Hospital with a recurrence of right iliac fossa pain.  A general practitioner referred her to a general and vascular surgeon, who in turn referred her to the respondent.[4]

[11] She first consulted the respondent on 19 October 1988, complaining of chronic pain in the lower abdomen, especially when menstruating, and leg pain.  She brought with her the report on an ultrasound scan and gave a long history of pelvic pain.  The respondent conducted an internal examination and, from it and the ultrasound report, concluded she had a simple cyst on the left ovary approximately five centimetres in diameter.  Such cysts are common and generally subside spontaneously.  He advised her to take analgesia and to return in three or four weeks in the hope that the cyst would settle.[5]  When she returned, she complained of pain in the right iliac fossa.  On examination, the respondent found her left ovary had reduced in size, suggesting that the cyst was becoming smaller.  He advised her to be patient and to return in a month for review.[6]

[12] On 16 November 1988, she reported a painful left ovary.  A new ultrasound scan and a physical examination showed the left ovary was enlarged, with a maximum diameter of 5.5 centimetres.  The respondent again advised conservative treatment and simple pain relief.[7]  When she returned on 23 January 1989, she said the pain was gradually getting worse.  A physical examination revealed her left ovarian cyst was approximately four centimetres in diameter.  He advised a laparoscopy which he performed on 27 January 1989.  He aspirated the cyst and noted adhesions of the bowel and omentum to the left ovary and uterus consistent with inflammatory pelvic disease.[8]  On 10 February 1989, she reported some bleeding and discomfort, feeling hot and cold, and poor memory.  The respondent's pelvic examination showed her left ovary was normal but there was gas in the caecum.[9]  On 21 April 1989, she reported pain in both sides of her pelvis for three days and pressure on her bladder.  The respondent's physical examination found another very tender left ovarian cyst.  He prescribed a drug to suppress ovarian function for the short term.  He decided to avoid recommending surgery and to be sympathetic and supportive to assist the applicant through these painful episodes.[10]  On 12 May 1989, he referred her to a neurologist for advice concerning headaches.[11]

[13] The respondent did not see the applicant again until 11 December 1990 when she was fit and well with only occasional episodes of pain.[12]  Her next consultation was on 30 January 1992 when her general practitioner again referred her because of more frequent and painful menstruation.  The respondent's physical examination revealed a five centimetre cyst on the applicant's left ovary.  He advised her that the cyst was not life threatening and to continue conservative treatment.[13]  She next visited the respondent on 26 October 1992 with an echoscopy report which described her left ovary as having "solid/cystic components" and measuring 6.3 cm x 4.9 cm x 4.8 cm; an ovary is normally about 4 cm x 3 cm x 2 cm.  She complained of migraine headaches and severe period and pelvic pain.  His physical examination revealed that her left ovary was enlarged and tender and there was a mass on the left side of the pelvis, consistent with a tubo-ovarian inflammatory mass. 

[14] He advised that the best treatment was a total abdominal hysterectomy and left salpingo-oophorectomy or pelvic clearance, that is, removal of uterus, cervix, left tube and ovary and the dividing of the adhesions.  He explained that if she had the surgery she would no longer menstruate, could have no more children, and would require hormone replacement therapy in the form of a daily tablet.  He explained that, by and large, women with pelvic inflammatory disease obtain pain relief from the proposed surgery and he was confident it would relieve her pelvic pain.  Conservative surgery would not give her any further relief; that had been tried and been totally ineffective.  Without the surgery her condition would continue until she stopped menstruating.  The surgery would require a general anaesthetic and there could be risks, but in a fit young woman like her he did not expect any real risk.  Common problems with a hysterectomy were haemorrhage and wound infection.  She could seek a second opinion but she did not wish to do so and agreed to the surgery.  She signed a consent form both at his surgery and at the hospital later.[14]  Prior to the surgery a further echo scan was conducted and the echoscopy report stated that there was a complex cyst in the left ovary measuring 5.9 cm x 6.1 cm x 5.1 cm.[15]

[15] The respondent, assisted by his now-deceased father, conducted the advised surgery on 4 December 1992.  He found a conglomerate mass of adhesions the size of an orange between bowel, omentum, uterus and left ovary.[16]

[16] The judge set out in full Dr Papadimos's histopathology report on the applicant's removed organs.  It noted adhesions in the uterus; multiple cysts on the left ovary; and found no evidence of endometritis, endometrial hyperplasia or malignancy.  It referred to dense tubo-ovarian adhesions and a benign corpus luteum cyst.  Dr Papidimos later wrote to the applicant stating that a definitive diagnosis as to the nature of the tubo-ovarian mass could not be made on laparoscopy examination and that the mass and adhesions were probably the result of previous inflammation usually caused by prior infection but occasionally by previous surgery.[17]

[17] His Honour then discussed the respondent's evidence concerning his reasons for removing the applicant's uterus, cervix and left ovary.  If the uterus was not removed, the inflammatory disease was likely to continue and the pain to the applicant would persist.  If the ovary was not removed, it was likely to continue to develop into cysts with a recurring need for surgical procedures to remove them.  Each surgical procedure imposes a risk to the patient and recurring surgery is undesirable.[18]

[18] The applicant recovered well from the surgery[19] and the wound healed well.[20]  Unfortunately, she suffered a wide range of unpleasant symptoms including:

 

"the effects of having and of not having hormone replacement therapy; pain in her spine, joints, muscles, abdomen, and breasts; recurrent urinary tract infections; sensitivity to smells and fumes including those from perfumes, fuels, paints, aerosol deodorants, fly sprays, and washing detergent; intolerance of temperature change; hot flushes; nausea; hair loss; difficulties with bowel movements, headaches; depression; thought blanks; low energy; and embarrassment because of the scar left by the operation …"[21]

[19] The applicant's claim in negligence and breach of contract was based on failing to advise or inform her adequately or at all of certain things; doing certain things he should not have done; and failing to do certain things he should have done.[22]  She claimed he failed to advise or inform her adequately or at all about:

 

"the nature and extent of the risks associated with the hysterectomy, especially the risk of the onset of early menopause and the need for hormone replacement therapy …; the nature of her illness, probable causes of her ovarian cysts and available treatments together with their likely benefits and risks …; the consequences of the procedure to her 'further fertility' …; the preservation of her 'ovarian tissue, ova, and/or embryos for future pregnancies given [her] age …' …; and the nature and extent of risks associated with the hormone replacement therapy she was required to undergo as the result of the procedure … ."[23]

[20] She alleged that he wrongly removed and disposed of her ovarian tissue and ova without her permission; performed an unnecessary hysterectomy when a reasonably skilled gynaecologist, having regard to her age and potential fertility, would have performed a laparoscopy, or a laparotomy followed by a cystectomy.[24]  She alleged that he failed to investigate the nature of her illness; probable causes of her ovarian cysts, and available treatments together with their likely benefit and risks; to provide any or any adequate counselling or referral to counsellors prior to the surgery to enable her to make an informed decision regarding it; and to exercise the care and skill reasonably to be expected of a competent obstetrician and gynaecologist in the circumstances.[25]

[21] She also alleged that the respondent, in breach of the Fair Trading Act 1989 (Qld), represented to her that there was little or no risk of complication as a result of the hysterectomy, which representation was false and misleading and/or deceptive within the meaning of s 38 Fair Trading Act.  The alleged representation caused or induced her to undergo the hysterectomy in breach of the Fair Trading Act, causing her injury, loss and damage.[26]

[22] The judge concluded that the applicant had not established the respondent's negligence or breach of contract, nor that he made the alleged misleading or deceptive representations.  His conduct must be seen in the context of advice and treatment from the time of the first consultation in October 1988, four years before the surgery in December 1992.  She had a history of abdominal pain and discomfort before she consulted him and those symptoms continued from 1988 until the surgery in 1992.  His treatment followed a conservative course until he recommended the surgery.  It was a competent and reasonable assessment for him to determine that the surgery was the only permanent solution to her difficulties which were not caused by any malignancy but by adhesions.[27]  He advised her that, in his assessment, her condition would not improve without the surgery until she stopped menstruating.  She was an intelligent woman.  He fully explained the proposed operation, both what it was and its effects on her ovulation and fertility.  He explained the risks inherent in the surgery. 

[23] The respondent did not tell the applicant she was at risk of developing a psychiatric condition but it was unnecessary to do so as this could not possibly have been predicted before the operation.  This conclusion was supported by the evidence of consultant physician Dr Edward Ringrose.  The respondent invited the applicant to seek a second opinion but she chose not to seek one.  The operation was performed competently and successfully.  The applicant was fully informed of its effects and the risks associated with it before she consented to it.  At the time of the surgery, there was no available technique to preserve the applicant's tissues for future pregnancies.  The respondent disposed of the removed organs in the orthodox way.[28]

[24] In concluding that the respondent's treatment of the applicant was competent and reasonable, the judge accepted the evidence of the respondent and that of Dr Douglas Keeping, an obstetrician and gynaecologist.  Dr Keeping found that the respondent's treatment of the applicant "was the most desirable one in terms of trying to cure [her] … it was the best course of action and is what most average concerned and conservative gynaecologists would do."[29]

[25] His Honour then discussed a report dated 18 July 1996 by Professor Doctor Spasoje Petkovic and Assistant Professor Vesna Kesic of the Institute of Obstetrics and Gynaecology at the Clinical Centre of Serbia in Belgrade which was admitted into evidence.  His Honour noted that those doctors did not give oral evidence, despite attempts by the applicant during the trial to arrange for Professor Petkovic to give evidence by telephone link.[30]  It was therefore impossible to examine them on matters which were unclear from their report.  His Honour explained that the facts they expressed in the report did not appear to be based on the applicant's full medical history and did not take into account the respondent's reasons for performing the surgery.  Nor did they appear to have read Dr Papadimos's histopathology report.[31]  Their opinions seemed to be expressed in ignorance of essential facts, unlike the opinions of the respondent and Dr Keeping.[32]  The report from the Serbian doctors was therefore of no assistance in resolving the central issue in the case.

[26] The judge returned to Dr Ringrose's evidence and his opinion that many of the applicant's physical symptoms did not seem to be caused by the surgery.  Dr Ringrose considered the surgery to have been done for the right reasons; it was largely uneventful without surgical complications.  Most of her symptoms appeared to be an abnormal psychological or psychiatric reaction to the surgery which could not possibly have been predicted pre-operatively.  He would not expect any surgeon to have warned a patient that they may develop psychiatric symptoms after such a simple and relatively common procedure.[33]

[27] Psychiatrist Dr Jill Reddan concluded that the applicant was suffering from paranoid schizophrenia which was not the result of any surgery.  This illness was genetically and biologically determined, although it may be exacerbated by stress.  It significantly impaired the applicant's capacity to work but it did not arise from the surgery.[34]  The applicant had many of the symptoms of her schizophrenia well before the surgery.[35]  She now required long term psychiatric treatment.  This treatment was available and it was unfortunate she had not received it.[36]  Psychiatrist, Associate Professor Francis Varghese, in his oral evidence also considered that it was likely the applicant suffered from schizophrenia or a chronic delusional state.[37]

[28] The judge accepted the evidence of Dr Ringrose and Dr Reddan and found the applicant had little physically wrong with her which could be attributed to the operation, apart from some external scarring which was not disfiguring and her infertility about which the respondent told her beforehand.  Her mental disorder and associated delusions were not caused by the surgery.  They had interfered with the effectiveness of her hormone replacement therapy and have tormented her, causing her to suffer from a wide range of unusual somatic symptoms.[38]  The judge accepted that the unfortunate applicant had suffered much mental anguish as a result of her mental disorder and was unable to continue her work as a real estate agent, but this was unrelated to the surgery.  His Honour assessed her damages as a result of any act or omission by the respondent at nil.[39]

Conclusion

[29] It is impossible not to feel sympathy for the applicant whose life seems to have been ruined by years of pain and mental ill-health.  This must also have had a profoundly detrimental effect on her loved ones.  As the primary judge explained in his reasons, however, despite the applicant's no doubt genuinely held belief to the contrary, she did not establish at trial that her health problems were lawfully attributable to the respondent. 

[30] The applicant included in her material in this application the transcript of the fourth day of the trial which contained the evidence of the respondent, Dr Keeping and Dr Ringrose.  I have read that transcript and it has not lead me to doubt the correctness of the judge's factual findings.  Those findings were well open on the evidence, despite the report from the Serbian doctors.  That report did not seem to be based on all the relevant material and was therefore unhelpful.  Its authors were not available for cross examination.  The judge was right to place no weight on it.  It therefore seems very unlikely the applicant could successfully challenge in any appeal the judge's acceptance of the evidence of the respondent and Drs Keeping, Ringrose and, for that matter, Reddan.

[31] The applicant contended she knew nothing about adhesions being the reason for her surgery until the respondent gave his evidence at trial.  She agreed at the hearing of this application, however, that well before trial she had a copy of Dr Papadimos's histopathology report, which referred to the adhesions.  It is not to the point that the pathology report indicated that her removed organs were not malignant.  The surgery at the time it was performed in 1992 was, as the primary judge found, reasonably appropriate in light of the applicant's long history of pelvic discomfort and pain which had long been treated conservatively, including by multiple laparoscopies, all without lasting success.  She reported to the respondent and others that her debilitating period and pelvic pain recurred incessantly.  In those circumstances, the respondent reasonably determined that the only way to stop her pain prior to menopause was by way of the surgery he carried out. 

[32] The respondent obtained her consent to the surgery he ultimately performed after explaining the reasons for it; what it involved; and its dangers and likely effect.  He explained that she would be infertile and would have post-menopausal symptoms requiring hormone replacement therapy.  She consented to the surgery after having been properly informed of these matters.  Contrary to the applicant's assertion, the respondent did not admit he did not have her consent to the surgery; there was evidence at trial that she gave consent both in the respondent's surgery and later at the hospital.  These contentions, if pursued as a ground of appeal after the granting of an extension of time, seem decidedly unpromising.

[33] The applicant contended that she did not give consent for the respondent's father to act as an assistant surgeon in the surgery and that, contrary to the respondent's evidence, his father was not dead.  To support the latter assertion, she produced a photocopy of an envelope addressed to Mr Don Salter.  In response, the respondent's solicitor has deposed that Mr Don Salter is the respondent's younger brother.  The applicant in her written submissions in reply conceded she may be wrong about this, but she seemed to pursue the matter in her oral submissions.

[34] The applicant has not demonstrated that the respondent's father is alive.  In any case, her claim against the respondent did not contend that the operation itself was conducted negligently or that the involvement of the assistant surgeon (the respondent's father) contributed to her injuries.  On the material before this Court, these contentions, if pursued in an appeal after the granting of an extension of time, would inevitably fail.

[35] The applicant has not provided a satisfactory explanation for her eight and a half year delay in pursuing an appeal from the primary judge's order.  She has not demonstrated she has any promising prospects of success in an appeal were she granted an extension of time.  Her action against the respondent concerned surgery which took place almost 19 years ago.  The orders and reasons for them were delivered nine years ago.  As there was no appeal lodged, the respondent has believed for the past nine years that this litigation is concluded.  The respondent would suffer real prejudice because of that long delay were the extension of time granted.  The community, too, has an interest in the finality of litigation.  It is not in the community interest to re-open litigation after nine years unless there are convincing grounds for so doing.  When all these matters are considered, it is patent that the interests of justice do not warrant the granting of an extension of time to appeal in this case.

ORDER:

The application for an extension of time to appeal is refused, with costs.

[36] CHESTERMAN JA: I agree that the application for an extension of time within which to appeal the judgment of Helman J given on 29 April 2003 should be refused with costs, for the reasons given by the President.

[37] MARGARET WILSON AJA:  I agree with the order proposed by the President and with her Honour’s reasons for judgment.

 

Footnotes

[1] Jelicic v Salter & St Andrew's War Memorial Hospital [2001] QSC 68.

[2] Jelicic v Salter [2003] QSC 103.

[3] Above.

[4] Above, [5].

[5] Above, [7].

[6] Above, [9].

[7] Above, [10].

[8] Above, [12].

[9] Above, [13].

[10] Above, [14].

[11] Above, [15].

[12] Above, [16].

[13] Above, [17].

[14] Ex 19.

[15] Jelicic v Salter [2003] QSC 103, [20].

[16] Above, [20].

[17] Above, [21].

[18] Above, [22].

[19] Above, [23].

[20] Above, [24].

[21] Above, [26].

[22] Above, [28].

[23] Above, [29].

[24] Above, [30].

[25] Above, [31].

[26] Above, [32].

[27] Above, [33].

[28] Above, [34].

[29] Above, [35].

[30] Above, [36].

[31] Above, [37].

[32] Above, [38].

[33] Above, [39]-[42].

[34] Above, [43].

[35] Above, [44].

[36] Above, [45].

[37] Above, [46].

[38] Above, [47].

[39] Above, [48].

Close

Editorial Notes

  • Published Case Name:

    Vacic (formerly Jelicic) v Salter

  • Shortened Case Name:

    Vacic v Salter

  • MNC:

    [2012] QCA 53

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Chesterman JA, M Wilson AJA

  • Date:

    16 Mar 2012

Litigation History

Event Citation or File Date Notes
Primary Judgment [2001] QSC 68 08 Mar 2001 Order that no step be taken until a person files a consent to act as litigation guardian for the plaintiff pursuant to r 95(1) UCPR: Mackenzie J
Primary Judgment [2003] QSC 103 29 Apr 2003 Judgment for the defendant: Helman J
Appeal Determined (QCA) [2012] QCA 53 16 Mar 2012 Application for extension of time dismissed: McMurdo P, Chesterman JA, Margaret Wilson AJA
Special Leave Refused [2012] HCASL 121 15 Aug 2012 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)