Fyles v Clark[2000] QCA 28

THE CHIEF JUSTICE:  The first respondent, an orthopaedic surgeon, carried out a double block fusion of vertebrae in the appellant's cervical spine on 12 September 1990. The appellant subsequently experienced pain and discomfort leading to his consulting various medical specialists and undergoing physiotherapy, massage and acupuncture with a view to obtaining pain relief. On 23 January 1998 following legal advice he commenced an action for damages against the respondents.

The appellant's contention is that the operation was unnecessary and that he has suffered a recognised complication of which he was not warned, accelerated degeneration in the motion segment above the fusion. When the appellant commenced the proceedings he had no evidence of negligence on the part of the first respondent. He first obtained that prospective evidence on 14 January 1999. The proposed evidence was contained in a report by Dr R Watson, obtained at the instance of the appellant's barrister.

Dr Watson expressed the view that the operation was not warranted because the appellant's symptoms were primarily cardiac. Further CT myelography should have been undertaken first. Armed with that evidence the appellant served the writ on 19 January 1999.

The prescribed three year limitation period expired on 12 September 1993. In their defences filed on 19 March 1999 the respondents pleaded that the action commenced on 23 January 1998 was therefore barred. On 16 April 1999 the appellant applied to a Judge in Chambers for an order under section 31 of Limitation of Actions Act extending the limitation period. Section 31 provides:

"Where on application to a Court by a person claiming to have a right of action to which this section applies, it appears to the Court:

1. that a material factor 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

2. that there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation,

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

The "material facts of a decisive character relating to the right of action" upon which the appellant relied before the Chamber Judge were essentially the opinion of Dr Watson summarised earlier, that the operation was not warranted because the appellant's symptoms were primarily cardiac and that CT myelography should first have been undertaken anyway. The only live issued before her Honour was whether those material facts were "not within the means of knowledge" of the appellant until a date after commencement of the year last preceding the expiration of the limitations periods, that is, after 12 September 1992.

Section 30 of the Act defines when a material fact is not within a person's means of knowledge in these terms:

"(c) A fact is not within the means of knowledge of a person at a particular time if but only if:

1. the person does not know the fact at that time; and

2. 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."

The appellant contended that the relevant facts were not within his means of knowledge until 14 January 1999 when he first obtained Dr Watson's report supporting a view that the first respondent had been negligent. Her Honour concluded, however, that the appellant had not taken "all reasonable steps to find out the fact before that time". In particular, she held that the appellant should have sought Dr Watson's opinion earlier.

The question of what is reasonable is to be answered objectively with reference to a person in the appellant's position and with his background and understanding. Castlemaine Perkins Limited and McPhee (1979) Queensland Reports 469-472. The learned Judge inferred that the appellant was at all material times "lacking in knowledge and experience of litigation". She then noted that "down the years the applicant attended numerous doctors. He first consulted Dr Watson in January 1994 and Dr Watson saw him repeatedly thereafter and had numerous telephone conversations with him."  But the appellant did not ask Dr Watson for his opinion whether the first respondent had been negligent. Her Honour turned to the question whether he should reasonably have done so. She cited the observation of Tadgell JA in Koehne and Stanbury (1996) 1 Victorian Reports 203 at 209-10 with respect to similar legislation:

"If an applicant refrains from making inquiries in relation to a material fact of a person who knows it and whom the applicant may reasonably be expected to understand knows it and would reveal it if asked it is presumably a question of degree whether the applicant has taken all reasonable steps in the circumstances to ascertain the fact."

The Judge noted that the appellant first sought legal advice in January 1998 through a childhood friend who had become a barrister, Mr Garnham, who appeared before us today. It was on Mr Garnham's advice that the appellant issued the writ and subsequently asked Dr Watson for his view. Her Honour then concluded the issue against the appellant in the following way:

"It seems that the plaintiff did not ask Dr Watson for his opinion before Mr Garnham suggested that this be done. Assuming that is what happened the question is whether he acted reasonably in not asking the doctor questions of this kind. In Healy and Femdale, Court of Appeal No 37 of 1992, 9 September 1993, the Court of Appeal said:

'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 inquiry 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 opinion 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.'

Unlike the applicant in that case the present applicant, her Honour observed, has been dogged by pain since the operation and unable to get on with life and return to employment. In January 1997 he consulted Dr Michael Coroneos, a consultant neurosurgeon. He told Dr Coroneos he was trying to find an expert to help him sue the first defendant. Given that at least from 1996 he thought that the first defendant was responsible for the condition in which he found himself and given the apparent frequency of his contacts with Dr Watson in not seeking Dr Watson's opinion earlier he failed to take all reasonable steps to find out the fact before 14 January 1999."

The grounds of appeal challenge that finding. The appellant first criticised the learned Judge's reference to the appellant's having seen and spoken with Dr Watson on numerous occasions from July 1994. The fact is the appellant left Townsville, where Dr Watson's surgery is located, in January 1996, moving to Brisbane. Although the appellant subsequently telephoned Dr Watson on numerous occasions, the appellant telephoned in what Dr Watson described as "apparent desperation of his plight". Neither of those circumstances negates the point made by her Honour. The appellant had opportunity on many occasions prior to January 1999 to question Dr Watson about this issue.

The appellant goes on, however, to contend that it would not have been reasonable to ask such questions because the appellant's focus naturally heavily rested on relief of pain. But the appellant asserted to various specialists that responsibility lay with the first respondent. He was apparently interested in the question of blame or responsibility. The point is whether he took reasonable steps to explore it.

The learned Judge did not find against the appellant on the particular ground that he should have sought legal advice earlier than he did. It is, in my view, strongly arguable, as the respondents now submit, that the appellant should reasonably have done so and it is highly likely that a lawyer would have obtained the requisite specialist medical report.

Her Honour has, rather, rested on the appellant's failure to ask the relevant questions of Dr Watson at an earlier stage. They were questions within the appellant's capacity. The very substantial contact the appellant had had with Dr Watson over a substantial period, and that specialist's no doubt close familiarity with the appellant's condition, meant that Dr Watson was an expert from whom the necessary opinion should obviously have been sought.

The learned Judge's approach, which her reasons for judgment reveal to have been carefully considered, was open and reasonable. No ground has, in my opinion, been demonstrated warranting any interference by this Court on appeal.

I would, therefore, dismiss the appeal with costs to be assessed.

McPHERSON JA:  I agree.

BYRNE J:  I agree and would add only these words. It is apparent from the course of events that succeeded Mr Garnham's advice in early 1998 and Dr Watson's subsequent report that timely legal advice would have disclosed an arguable basis for the litigation at an earlier stage than it did. As the Chief Justice has mentioned, the appellant had believed since in or about early 1996 that his condition was attributable to the "fault" of the appellant. However, he omitted to take any steps with a view to obtaining legal advice.

The only attempt to explain this omission is an assertion that he had no money and became fully occupied with attempts to manage the pain and associated problems. It rather appears, however, that the appellant had not turned his mind to the possibility of taking legal advice with respect to the respondent's responsibility before his mother suggested that he speak to Mr Garnham.

This amounts to an omission to show that it was reasonable not to seek legal advice by early 1997 at the latest. This is attended with the consequence, in my opinion, that the appellant failed to establish that he had, in an appropriately timely way, taken all reasonable steps to ascertain the material facts. For that reason, in addition to those given by the Chief Justice, in my view, he failed to demonstrate an entitlement to relief.

I agree in the orders proposed.

THE CHIEF JUSTICE:  The orders of the Court are that the appeal is dismissed with costs to be assessed.