Karanasios v Coroneos
[1995] QDC 269
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- Unreported Judgment
- Karanasios v Coroneos[1995] QDC 269
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Karanasios v Coroneos[1995] QDC 269
Karanasios v Coroneos[1995] QDC 269
DISTRICT COURT | No 1405 of 1995 |
CIVIL JURISDICTION
JUDGE O'SULLIVAN
ARTHUR KARANASIOS | Plaintiff |
and
DR MICHAEL CORONEOS | Defendant |
BRISBANE
DATE 27/07/95
JUDGMENT
HER HONOUR: This is the matter of Karanasios. I will read my reasons into the record. This is an application to extend time pursuant to section 31 of the Limitation of Actions Act. The Applicant points to three possible material facts of a decisive character, namely:
- 1.The procedure could have caused a new injury or an aggravation of his existing problems;
- 2.The defendant may have been negligent in undertaking the procedure when it was unwarranted;
- 3.The plaintiff having a probable claim for significant losses for economic loss.
The Applicant must satisfy the Court that the alleged material facts of a decisive character were not within his means of knowledge until subsequent to 28 January 1994 and that he has taken all reasonable steps to ascertain the material facts.
Counsel for the Respondent submitted that the plaintiff did not take all reasonable steps to ascertain the alleged material facts, in that he and his legal advisers failed to seek further medical advice, particularly as to the appropriateness and significance of the manner of affixation of the device, within the limitation period.
Counsel for the plaintiff submitted that the plaintiff had numerous attendances upon doctors and obtained various reports, none of which gave him or his legal advisers any inclination of the possibility that the procedure undertaken was inappropriate and he had no indication that the defendant had done anything but assist him. I consider that the plaintiff took all reasonable steps.
It thus becomes necessary to decide whether there is evidence to establish the right of action apart from a limitations defence. I turn to the alleged material facts. First: the procedure could have caused a new injury or an aggravation of his existing problems.
The plaintiff relies on the following statements in medical reports:
Dr Askin dated 3 October 1994 as follows:
“As back pain per se is not the patient's main symptom, performing a revision spinal fusion is unlikely to render him significantly better than is his current situation. These symptoms would suggest irritation to lumbar nerve roots at the level of the fusion. It may be due to the implant itself or as a result of scarring around the area.”
An earlier report of Dr Askin dated 18 July 1994 as follows:
“The device has been fitted incorrectly, reflecting a failure on the surgeon's part to comprehend the true biomechanics of the situation and the use of the implant. It is not possible to categorically say that the implant itself is the cause of the patient's pain.”
Dr Redmond dated 14 April 1994 as follows:
“I agree that it is unlikely that this device would be successful in ameliorating the symptoms of spondylolisthesis in the manner which has been utilised. This would be attributable more to the manner of utilisation rather than to a defect in the device. If the device had been fitted to the posterior elements of the next vertebra up the spine, then a greater degree of stabilisation would have been achieved.”
I consider that this evidence does not support the alleged material fact.
The second alleged material fact of a decisive character is the defendant may have been negligent in undertaking the procedure when it was unwarranted.
I agree with Counsel for the respondent that the medical reports on which the plaintiff relies in this Application are capable of supporting a conclusion that the procedure was appropriate, but it was performed inappropriately. I do not agree with the submission of Counsel for the applicant that, “both doctors provide primary evidence that a fusion would not be the appropriate treatment for that in any event ... so the affixing of it to a different disc in the spine is not a matter which is relevant here.”
Thus the material is capable of supporting a conclusion that the defendant was in breach of his duty of care using the test from Glaxo Australia Pty Ltd v. Wood, (Unreported - Court of Appeal - Appeal No 37/1992 - delivered 30 March 1993).
The question then becomes whether this breach, the inappropriate affixation, caused the plaintiff's alleged loss and damage. I agree with Counsel for the respondent that the material in support of this application does not show this. I agree with him that, “there is no evidence that the plaintiff's level of pain is any worse because of the affixation of the device to L5; that the plaintiff's level of disability has been made worse because of the affixation of the device to L5 or that, even had the device been affixed to L4 rather than L5, the fusion would necessarily have been successful.”
The third alleged material factor of decisive character is the plaintiff having a probable claim for significant losses for economic loss. The plaintiff relies on the report of Dr Askin of 3 October 1994:
“A successful spinal fusion is likely to improve movement related back pain ...
As stated above, a successful fusion would normally result in significant relief of back pain and would allow patients to return to the workforce in a light manual or sedentary type occupation.”
I do not consider that the alleged material fact is borne out by the evidence, using the Glaxo test.
I dismiss the application.
The formal reasons then will be that I publish my reasons and I dismiss the application.
I order the applicant to pay the respondent's costs of and incidental to the Application, to be taxed.