Hodge v Everingham
[1997] QDC 165
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- Hodge v Everingham[1997] QDC 165
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Hodge v Everingham[1997] QDC 165
Hodge v Everingham[1997] QDC 165
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 679 of 1996 |
[Before Judge Brabazon QC]
BETWEEN:
MICHAEL HODGE | Plaintiff |
AND
WILLIAM J. EVERINGHAM | First Defendant |
AND:
LAWRENCE S. PARKER | Second Defendant |
JUDGMENT
Judgment delivered: 23rd May 1997
Counsel: | Mr Sheaffe for the Plaintiff |
| Mr Tait for the Defendants |
Solicitors: | Anderson Brady for the Plaintiff |
| Blake Dawson Waldron for the Defendants |
Hearing date: | 9 May 1997 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 679 of 1996 |
BETWEEN:
MICHAEL HODGE | Plaintiff |
AND:
WILLIAM J. EVERINGHAM | First Defendant |
AND:
LAWRENCE S. PARKER | Second Defendant |
REASONS FOR JUDGMENT - JUDGE BRABAZON Q.C.
Delivered the 23rd of May 1997
This is an application for an extension of the usual three year time limit, to commence an action claiming damages for negligence causing personal injury. The application was heard in chambers with helpful written submissions from counsel. I reserved my decision, to enable time for a more careful reading of the medical reports and the decided cases.
The plaintiff, Mr. Hodge, issued a plaint out of the District Court at Brisbane on 22nd February 1996, against two medical practitioners. He alleges that each was negligent in performing surgery on his nose - that is, negligence in the actual performance of the operations, and negligence in failing to warn him of the possible adverse consequences.
The operation by Dr. Everingham was on 20th July 1987. The operation by Dr. Parker was on 8th April 1988. The usual limitation period in such cases is 3 years, from when the cause of action arose - that is, from the time of the operations. The defences filed in this court by each defendant plead the Statute of Limitations.
The application asks for an order to extend the time within which Mr. Hodge might commence these proceedings against the two doctors.
The Facts
Mr. Hodge was in the army in 1982 when his nose was broken. He says that the break healed well and caused no interference with his breathing, but that he was left with a painful calcification which was worsened by the wearing of heavy workshop glasses. He consulted an ENT specialist, who noted that his breathing was not a problem, and said that he should see a plastic surgeon, because his nose was crooked. He says that he received no advice from the ENT specialist about any complications from surgery.
On about 5th December 1986 he saw the first defendant, Dr. Everingham. He recommended a rhinoseptoplasty, to have a “better nose”. Mr. Hodge said that he asked the doctor whether there would be any complications involved in that operation. The reply was, he says, to the effect that the doctor did not anticipate any problems. Mr. Hodge says that there was no warning as to the possible risks or complications involved in that surgery.
Dr. Everingham performed that operation at the First Military Hospital at Yeronga on 20th July 1987. When the plaster was removed, Dr. Everingham said, in effect, that the result was appropriate. Mr. Hodge complained to him that he could not breathe through his nose or smell things. He was assured that the problem would resolve itself.
His nose did not allow him to breathe easily. He was referred by an army medical officer to the second defendant, Dr. Parker, an ENT surgeon. He saw him on 11th December 1987. He wanted to know if his breathing problems could be fixed. Dr. Parker said that they could be fixed. He suggested an operation called septoplasty to correct the breathing difficulties. Mr. Hodge says that Dr. Parker did not inform him of any risks or complications related to that operation, or that previous surgical procedures on his nose would make him more susceptible to complications. Dr. Parker performed that operation at the Military Hospital at Yeronga on 8th April 1988.
After that second operation, Mr. Hodge noticed that his breathing was improved, though not normal, and that he was also experiencing crusting in his nose. Dr. Parker reviewed him on about 14th April 1989. Apparently, the cause of the crusting was a septal perforation - that is, a hole through the membrane which divides each side of the nose. Dr. Parker did not tell him he had suffered that condition, which was causing the crusting. Mr. Hodge refers to the hospital records, which have been obtained. Apparently, Dr. Parker's notes record the septal perforation, and the crusting.
He continued with his work in the army. While in Katherine, he experienced a lot of bleeding in the nose. On 2nd August 1989, he was examined and told that he had the septal perforation, and that it was a complication of the septoplasty operation. Shortly afterwards he was flown to Brisbane, with a view to his seeing Dr. Parker. As it happened, he was sent by his G.P. to Dr. Szallazi, an ENT surgeon. Dr. Szallazi noted the septal perforation, and informed him of the risks and complications involved in an operation to close it. He explained that each further operation on Mr. Hodge's nose presented an increasing risk of complications.
Mr. Hodge decided to go ahead with that operation. On 20th August 1989 Dr. Szallazi applied skin grafts to his nose at the Princess Alexandra Hospital in Brisbane to close the septal perforation. In the result, his airways and sense of smell were improved, though they are still not normal. The perforation was successfully closed.
There were still defects in his nose. He had a reduced flow of air and a reduced sense of smell.
Several years passed. In about late 1994 Mr Hodge began to feel ill and physically weak. In the new year of 1995 he happened to consult a Dr McCoombe, an orthopaedic surgeon, about unrelated back problems. He had a blood test. It was found that he was suffering from anaemia. He was referred to a physician, a Dr. Campbell, in or about March or April 1995. Dr. Campbell found that the cause of his anaemia was the continuing blood loss from his nose. He was then referred in turn to a Dr. Stevens, another ENT specialist, to discover the reason for the bleeding from his nose. On 8 June 1995, Dr. Stevens found that the anaemia was caused by ulceration of the septum with recurrent bleeding at the back of the nose.
Dr Stevens has treated his nasal condition with antibiotics. It has emerged that the higher perforation was a result of Dr. Szallazi's surgery - not through any fault of his, but as a consequence.
Mr. Hodge now complains of the constant threat of anaemia, not being able to breathe properly through his nose, which has a poor airway because of nasal valve collapse on each side, loss of a sense of smell, dry mouth, crusting in the nose, the necessity to use medications daily to prevent a recurrence of the anaemia, an inability to blow his nose, choking caused by mucus, and constant sniffing to draw back that mucus. He has a long term disability, which has a considerable impact on his capacity to enjoy an active life.
Mr. Hodge asserts, that had he been advised of the risk of complications, including interference to his air passages, he would not have undergone the initial operation by Dr. Everingham. He says that his discomfort at that time was far less than the subsequent discomfort. He would have either put up with it, or changed his employment in some way within the army, so that he did not have to wear safety glasses at work.
Mr. Hodge did not seek legal advice about his position until 29 June 1995. He says that he had not been aware until March or April of that year that the higher septal perforation was related to Dr. Parker's operation. He knew nothing about the Statute of Limitations, and its impact on him. In the second half of 1995, his solicitor was active in investigating the true position and gathering information to support this application.
Principles
In order to persuade the court to grant an extension of time, Mr. Hodge must show:
- (a)That a material fact of a decisive character was not within his means of knowledge within 2 years of the cause of action accruing.
- (b)That he has commenced the present action within 1 year of the material fact of a decisive character coming within his means of knowledge.
- (c)That there is enough evidence to show that negligence in the defendants might be proved at the trial.
- (d)That the application for an extension should be allowed, despite any prejudice to the defendant caused by delay.
With regard to negligence - counsel for Mr. Hodge admitted, as he had to, that there is no evidence at all that the operations by Dr. Everingham and Dr. Parker were performed negligently. While his nose is now worse than ordinarily expected after such surgery, the available medical opinion is consistently to the effect that the complications could have arisen in any case. As Dr. Szallazi puts it in his report of 5 October 1995:
“Although it's beyond doubt that his nasal problems are the result of his previous procedures, this in no way shows any negligence on the part of the surgeons that performed these operations.
Nasal obstruction is a fairly frequent outcome of rhinoplasty and unfortunately septal perforations are a recognised and accepted complication of septal surgery.
It is my opinion, therefore, that although he has had an unsatisfactory outcome from his nasal procedures, there is certainly no proof that any of nasal operations were performed negligently”.
However, the other allegation by the plaintiff is that the doctors failed to warn him of the risk of complications. There is evidence here that the risk of significant nasal obstruction caused by Dr. Everingham's operation was in the order of 10%, and that it was an accepted and recognized risk. Indeed, the risks were higher because of the previous surgery, when Dr. Parker operated. Mr. Hodge does not have to prove on this occasion that he would succeed at a trial on the basis of those allegations. It is enough 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. The approach taken in Wood v. Glaxo Australia Pty. Ltd. (1994) 2 Qd.R. 431 at 434 should be applied here.
There is a suggestion here that a competent surgeon may not have advised him about those risks. However, the practice of the medical profession in that regard is not conclusive, and the question of negligence is ultimately one for the court. See Rogers v. Whitaker 1992 175 C.L.R. 479, where the effect of the decision is summarised in the headnote:—
“Except in the case of an emergency or where disclosure would prove damaging to the patient, a medical practitioner has a duty to warn the patient of a material risk inherent in proposed treatment. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. The fact that a body of reputable medical practitioners would have given the same advice as the medical practitioner gave does not preclude a finding of negligence. Generally speaking, whether the patient has been given all the relevant information to chose between undergoing and not undergoing the proposed treatment is not a question, the answer to which depends upon medical standards or practice”.
The applicant has gone far enough to establish a case in negligence based on a failure to warn of the risks of surgery, for the purposes of this application.
Counsel for the doctors also pointed to the question of prejudice. The proper approach in these applications has now been established by the decision of the High Court of Australia in Brisbane South Regional Health Authority v. Taylor (1996) 70 A.L.J.R. 866. There, it was held by the majority that the statutory rules about possible extensions of time do not confer upon an applicant for an extension of time, a presumptive right to an order once the conditions in s.31(2) of the Act are satisfied - this is, once some evidence of negligence is established, and that the “material fact of a decisive character” was not known to the applicant. It was held that the section confers on the court a discretion only to be exercised in an applicant's favour where, in all the circumstances, justice is best served by so doing the onus of proof of which falls on the applicant A material factor in that onus is establishing that an extension would not significantly prejudice a defendant.
As part of that approach, the court further held, that as a 3 year period of limitation was established for personal injury claims, for a court to allow the commencement of an action outside that period was, on the face of things, prejudicial to the defendant
In the present case, there is no evidence put forward by Mr, Hodge dealing with the question of prejudice to Dr. Everingham and Dr. Parker. It may well be that it is impossible for an applicant in Mr. Hodge's position to say anything positive about the question of prejudice he is not in command of all the facts relating to the doctors' positions. However, not surprisingly, the doctors have put forward their own positions with regard to the question of prejudice. Dr. Everingham says that he has no knowledge or memory whatsoever of the operation on Mr. Hodge and knows nothing beyond the notes of the First Military Hospital which record the operation. Dr. Parker admits to a slight memory only. In addition, because of the passing of the years, it can be assumed that there is some prejudice because of that fact alone. Therefore, this is a case where there will be prejudice to the defendants, and that must be a factor to be taken into account.
However, the question of prejudice is but one of the discretionary factors. Here, the most important need is to consider Mr. Hodge's knowledge of his difficulties. It may be accepted, for the purposes of this application, that he did not know that he had a second septal perforation until early 1995. His first complaint of symptoms relating to that was in late 1994 - about 5 years after Dr. Szallazi's operation.
It is necessary to compare his new knowledge, gathered in early 1995, to his previous knowledge. That earlier knowledge was gained when he saw Dr. Szallazi in August 1989. He then learnt, in a definite way, about the lower septal perforation and how it had been caused. It led to the operation by Dr. Szallazi. It is submitted that Mr. Hodge certainly had adequate information, if he wished to complain about the conduct of Dr. Everingham and Dr. Parker, to institute proceedings.
It was submitted that Mr. Hodge has difficulties which he cannot overcome. His level of knowledge at the time of Dr. Szallazi's operation meant that he was already in command of sufficient knowledge to allow him to take worthwhile proceedings against Dr. Everingham and Dr. Parker, if he chose to do so. The second septal perforation was a consequence of Dr. Szallazi's treatment, but his knowledge was not “of a decisive character”. Rather, he found out that he was suffering one more complication caused by his three operations.
The inquiry is upon the existence of “a material fact of a decisive character relating to the right of action”. For the limitation period to be extended, that must be within the means of knowledge of the applicant during a defined time. In effect, these provisions allow an applicant a year in which to act on that material and decisive fact. So, it must not have been within the applicant's means of knowledge within the last year of the ordinary limitation period - if that happens, then there is no need to extend the time at all. Likewise, once it is within the means of knowledge, then the applicant has a further year's grace within which legal proceedings may be commenced. That is the effect of s.31(1)(2), where a court is given the power to extend the period of limitation for one year after the time when an applicant had the” means of knowledge” about his or her own condition.
Therefore, I have to consider in this case what happened after 2 July 1989 (in the case of Dr Everingham) and after 8 April 1990 (in the case of Dr Parker).
The present proceedings were commenced on 29 February 1996. If there is to be an extension of time to cover the issue of those proceedings, then the requisite knowledge must have come to Mr Hodge not earlier than 29 February 1995, so giving him the allowed year in which to commence the proceedings.
Therefore, counsel for Mr Hodge emphasised the events of June 1995, when he was told that he had anaemia and that the anaemia was caused by blood loss, caused by the second septal perforation.
Now, the material facts must be “of a decisive character”. They will have that quality 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 that litigation would have reasonable prospects of success, and result in an award of damages sufficient to justify the action, and that the applicant ought, in his own interests, start that litigation. (A paraphrase of s.30(b)).
That is an issue that has come before the Queensland Courts on more than one occasion. A good summary of the approach is contained in the decision of Berg v. Kruger Enterprises (1992) Qd.R 301. There, it was suggested that the extent of a back injury only came within the meaning of knowledge of a plaintiff when he learnt about an assessment made by medical experts. In considering that question, the Court relied on some earlier judgments, beginning with Sugden v. Crawford (1989) 1 Qd.R 683. There, the Court was considering whether a material fact was also of a decisive character, and it was said that:
“Implicit in this legislation is a negative proposition, that time will not be extended where the requirements of s.30(b) are satisfied without the emergence of a 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.”
The Court was influenced by the High Court decision in Doccarmo v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234 at 251 where Deane J said that:
“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 at his part, unaware that he had a worthwhile cause of action until not more than 12 months before the commencement of proceedings.”
In Moriaty v. Sunbeam Corporation Limited (1988) 2 Qd.R. 325, Macrossan J then said:
“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new facts which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learned fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should, in his own interest, share it This is what the application of the test of decisiveness under 30(b) comes down to...”
In that case, it was held that there was nothing in the further medical opinion which was material in the above sense, of enhancing the prospects of success so as to raise them from a possibility to a real likelihood - nor could the further medical opinion be considered as enhancing the prospect of damages to an extent which would warrant embarking upon an action, which would not have been justified by the facts previously known.
Those ideas lay behind the more recent decision of Wood v. Glaxo Australia Pty Ltd (above). There, the Chief Justice put the matter this way:
“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 and extension of the limitation period if he is not yet (and even if he had made reasonable inquiries 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 an extension.”
In this case, Mr Hodge knew the facts which pointed to the possibility of claims of negligence against both Dr. Everingham and Dr. Parker. He knew that he had suffered personal injury, to the extent described by Dr. Szallazi. Dr. Szallazi's operation improved things for him, but did not return them to normal, and Mr. Hodge knew that. He said there was still defects in his nose, with the reduced air flow and reduced sense of smell. He did not know about the prospect of a second septal perforation, and the prospect of anaemia, and the prospect of the need for constant treatment of the perforation to keep it under control.
It can be accepted that all of his continuing difficulties, though surprising, were a consequence of the first operation, by Dr. Everingham. In short, the permanent and continuing difficulties after Dr. Szallazi operated were going to be more serious than he appreciated at the time of seeing that doctor.
However, in my opinion, Mr. Tait's submission must be accepted - it cannot be concluded that the new facts (that is, the facts surrounding the second perforation and the anaemia) were of a decisive character. It is true that they made it clear that his condition was worse than he had realised. But he already knew facts which would have made an action against Dr. Everingham and Dr. Parker worthwhile. The new facts went to increase the level of damages that he might have expected to be awarded. That is not sufficient, to enable this Court to grant an extension of time.
The application is dismissed.