Orth v Cooke
[1998] QDC 197
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Orth v Cooke[1998] QDC 197
- Add to List
Orth v Cooke[1998] QDC 197
Orth v Cooke[1998] QDC 197
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | No. 4822 of 1997 |
[Before Robin Q.C., D.C.J.]
(Jacqueline Ann Orth v. The Uniting Church in Australia Property Trust & Robert Cooke)
BETWEEN:
JACQUELINE ANN ORTH | Plaintiff |
AND:
ROBERT COOKE | Defendant |
REASONS FOR JUDGMENT
Judgment: | 22nd June 1998 |
Catchwords: | Limitations – Limitation of Actions Act 1974 s.30(1)(a)(i), s.31(2)(a) – plaintiff sued her employer in respect of a back injury at work – “material fact of a decisive character” becoming known to plaintiff was the fact of the occurrence of negligence by a treating surgeon in selecting an “unnecessary and possibly extravagant” procedure – plaintiff unhappy with unsuccessful outcome of procedure (which she believed exceeded the consent she had given) and reported surgeon to medical authorities, but unaware of any expert view surgeon was negligent – after expiration of limitation period for action by the plaintiff against doctor, the employer instituted third party proceedings against him and amended its defence to plead novus actus interveniens against the plaintiff – the “material fact of a decisive character” held not within the plaintiff's means of knowledge until receipt of a follow-up medico-legal report from employer's solicitors of an orthopaedic surgeon who examined the plaintiff for them – limitation period for proceedings against surgeon extended |
Counsel: | Mr Bowden for the Plaintiff Mr North for the Defendant |
Solicitors: | Carter Capner for the Plaintiff Bowdens for the Defendant |
Hearing Date(s): | 22 June 1998 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | No. 4822 of 1997 |
BETWEEN:
JACQUELINE ANN ORTH | Plaintiff |
AND:
ROBERT COOKE | Defendant |
REASONS FOR JUDGMENT - ROBIN Q.C., D.C.J.
Delivered the 30th day of June, 1998
These are reasons for an order made in Chambers on 22 June 1998 extending the limitation period prescribed by the Limitation of Actions Act 1974 for commencement of this action to 15 November 1997, by which date it had been commenced. The plaintiff is plaintiff against The Uniting Church in Australia Property Trust (Q) in action 286 of 1995, in which Dr. Cooke is a third party. The plaintiff sued in respect of a work injury occurring in the course of her employment with that defendant on or about 15 September 1993. A defence was filed on 7 April 1995. The third party proceedings were issued on 26 May 1997. At the end of September 1997, the defendant in action 286 of 1995 filed an amended defence alleging against the plaintiff that a “novus actus interveniens” in the form of negligent treatment by Dr. Cooke limited its own liability. The plaintiff consulted Dr. Cooke on 1 October 1993 and was operated upon by him on 22 November 1993. This was the time when the alleged negligence on his part occurred, and it is common ground between his counsel and the plaintiff's that the limitation period expired on 22 November 1996. Mr. Bowden, appearing for the employer, and concerned to avoid its plea of novus actus being struck out (in accordance with an alternative application of the plaintiff's), submitted that the limitation period may not yet have expired, citing Gorton v. The Commonwealth (1992) 2 Qd.R. 603, and that the issue should not be determined now: Wardley v. Western Australia (1992) 175 CLR 514, 533-4; Burrows v. C.A. Sciacca & Assoc (1997) 1 Qd.R. 157. The special rules applicable to third party proceedings mean Mr. Bowden's client has no limitations concern; in my view, although the striking out of a late amendment to a defence that might defeat a claim is possible in principle (Turner v. Ford Motor Co Ltd (1965) 2 All ER 583, 585G-I; Weait v. Jayanbee Joinery Ltd (1962) 2 All ER 568, 570; Gardso v. Thomas Borthwick & Sons (Australasia) Ltd (1990) 2 Qd.R. 36), there is no question of that happening here. It is plainly convenient to sort out the limitation problem at this stage.
The plaintiff was dissatisfied with Dr. Cooke's surgery, which did not get her back to work quickly, as she says he had represented it would. On 31 March 1994 she consulted Dr. McPhee. Twelve days later she requested him to perform further surgery, and also retained solicitors for purposes of proceedings against the employer. The further surgery occurred on 12 May 1994. From the plaintiff's point of view, the unsatisfactory result was explained in terms of loose fixation devices which Dr. McPhee tightened. She learned that the original surgery comprised a spinal fusion at three levels, rather than at a single level, which she says was what she had consented to. On 14 December 1994 she complained about Dr. Cooke to the Health Rights Commission (Medical Board) regarding the carrying out of a procedure she had not authorised. This complaint got nowhere, I was told, because of “lack of evidence”.
The case to be made against Dr. Cooke is indicated by Dr. Boys' report dated 6 January 1997 which, having been arranged at the insistence of the employer's solicitors, came to the plaintiff's only on 19 May 1997:
“I believe that a spinal fusion procedure, if contemplated in this case, could be considered at one level at the L5/S1 space. As I have previously stated, I am unable to explain or provide a rationale for this fusion procedure performed from L3 to S1.
I believe that fusion spanning the L3/L4 and L4/L5 intervertebral discs was unnecessary and possibly extravagant.”
This opinion, in my view, made known to the plaintiff “a material fact of a decisive character” within the meaning of s.31(2)(a) of the Limitation of Actions Act. The other conditions being satisfied, it is open to the court to extend the limitation period. The submission of Mr North SC. that this brought to light “the fact of the occurrence of negligence”, as referred to in s.30(1)(a)(i), in the form of treatment that was either unnecessary or ill-advised, appears to me correct.
It is true that the plaintiff was dissatisfied with Dr Cooke; this does not mean she had to sue him. The High Court's judgment in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, 528-30 indicates that a defendant such as the employer has to take the risk of a certain extent of misadventure in the medical treatment of an injury for which it is responsible. A line has to be drawn, and it is interesting that one description of a case said to fall beyond the line concerns treatment “extravagant from the point of view of medical practice or hospital routine” (530). This is the sort of thing the employer first raised in its defence on 30th September 1997. The situation is similar to that in Horne v Commissioner of Main Roads & South East Queensland Electricity Board (1991) 2 Qd.R. 38, in which, after the expiration of the limitation period, the defendant road authority asserted that an accident had been caused not by its negligence, but by that of the supplier of lighting.
Mr Tait, for Dr Cooke, submits that, for the purposes of s.31(2)(a), the material fact of a decisive character was “within the means of knowledge of the applicant” well before the commencement of the last year of the limitation period. In a submission on behalf of Dr Cooke which Mr North characterised as travelling a very fine line, Mr Tait argued (I quote from the written submission):
“5. 5.1 The Plaintiff seems to be saying the material fact of a decisive character was that she did not know Dr Cooke was negligent.
5.2 However, by 31 March 1994, when she saw Dr McPhee, she knew:—
- (i)the operation was a three level fusion whereas she had been told she would have a one level fusion;
- (ii)she would never be able to return to work whereas she had been told she would be able to return to work within a month;
- (iii)the pain was probably caused by screws coming loose and a tore graft, whereas Dr Cooke had said it was due to the presence of the foreign body.
5.3 On 14 December 1994 the Plaintiff complained to the Health Rights Commission, and the complaint there is quite detailed and indicates that she knew she was unhappy with the treatment by Dr Cooke.
5.4 The Plaintiff knew by early 1994 that her condition was serious and that she would probably never work again. She knew she was in great pain, and would need a further operation.
5.5 It was incumbent on the Plaintiff to make reasonable enquiries about her position.
5.6 The affidavit of Mr McCay indicates that had the plaintiff made enquiries of almost any orthopaedic surgeon, she could have ascertained that there was evidence available to indicate Dr Cooke was negligent, and she certainly did not need to sit back and do nothing until the report of Dr Boys arrived in November, 1996.
5.7 The first report of Dr Boys was dated 9 August 1996 and there is no explanation why the Plaintiff did not receive this until ‘after 28 November 1996’ as alleged in paragraph 18 of her affidavit in action 286 of 1995.
6. WHETHER ACTUAL NEGLIGENCE OF THE DEFENDANT IS REALLY A MATERIAL FACTOR OF A DECISIVE CHARACTER
6.1 It is submitted that even if no-one had used the word ‘negligence’ in any report, it was clear that there was significant criticism of the Defendant by Dr McPhee.
6.2 It is clear that by 12 May 1994, or within a few days of it, the Defendant knew that the suspicion about the screws having come loose and the inadequate grafting were in fact correct. Whilst it may be that screws could come loose without negligence, each of these suspicions, later proved to be true at operation, should have put the Plaintiff on alert to make enquiries.
6.3 A simple question to any orthopaedic surgeon was likely to have elicited the answer that there was actionable negligence.
6.4 It is clear from the Plaintiff's complaint to the Health Rights Commission that she was very unhappy with the Defendant by 14 December 1994.”
Prejudice was not raised, on the basis of Dr Cooke being a third party already in Action 286 of 1995.
In my opinion, in the circumstances prevailing in the 1990's, it is not incumbent upon a plaintiff, even one in the state of dissatisfaction that had arisen with respect to Dr Cooke, to actively pursue the possibility that treatment of an injury for which some tortfeasor appears to bear responsibility has been negligent, with a view to litigation proliferating. One would expect such a plaintiff to feel justifiable satisfaction that, that tortfeasor having been sued, her rights were being properly protected. Events from 19th May 1997 may have caused some concern. Interestingly, it appears to have been the plaintiff's solicitors' enquiry of the employer's which led to the defence being amended.
Dr Boys' earlier report was in fact received by the plaintiff's solicitors on 21st November 1996, on the eve of the expiration of the limitation period. I think it would be quite unrealistic to expect those solicitors to formulate and then commence a medical negligence claim immediately. That report concludes as follows:
“I note your specific question as to whether in my opinion the surgery to the L3/S1 level was indicated. I am unable to reconcile a 3 level spinal fusion with the history provided to me and the radiological evidence available to me. The decision to proceed with spinal fusion would, itself, be arguable in the orthopaedic community. A spinal fusion, if performed, would generally be restricted to the L5/S1 level in these circumstances. I am unable to explain or provide a rationale for the decision by this lady's treating orthopaedic surgeon to proceed with the surgical procedure performed. Indeed it is this lady's understanding that she had consented to a one level spinal fusion. If indeed this lady was reassured at that time that she would return to work within a month, such advice would not reflect conventional orthopaedic thought.
I believe that the surgical procedure performed would have to be considered to have a direct bearing upon the subsequent development of pseudoarthrosis of the graft performed, failure of internal fixation, surgery to removal spinal implant and further bone grafting procedure. I believe it has to be considered that a failed three level spinal fusion has resulted in disability in excess of what would have been evident after a single level procedure.”
In the end I think there is a real difference between this report and the later one. To say Dr Cooke's approach was “arguable” may say no more than that others in the orthopaedic community would have adopted a different approach, Dr Boys numbers himself among them.
Mr Tait submitted the plaintiff had a further clear hint in Dr McPhee's report to the solicitors of 10th January 1996 which includes the following:
“As stated workers employed in heavy industry have a much greater risk as far as back injury is concerned. Along with this risk is a greater incidence of not being able to return to former heavy employment. In these injuries change in employment towards lighter work is a common practice when chronic back problems arise. I defy anybody to try and determine whether at some stage in the future an individual employed in heavy work may need to look in deployment. In this particular case however her current status is not entirely the predicted outcome from her injury. I believe there may well be a iatrogenic component following unsuccessful surgery. Certainly spinal fusion of the nature she has had would not allow her to return to heavy employment whether successful or unsuccessful.”
The affidavit of Mr McCay, a solicitor having the conduct of this action on behalf of the third party provides a dictionary definition of “iatrogenic” as:
“adj.(of an illness, real or imagined) caused or produced by diagnosis or treatment by physician”.
Mr North supplied me with an alternative:
“iatrogenic:— resulting from the activity of physicians. Originally applied to disorders induced in the patient by autosuggestion based on the physician's examination, manner, or discussion, the term is now applied to any adverse condition in a patient occurring as the result of treatment by a physician or surgeon.”
I think Mr North is correct in his submission that until Dr Boys' later report, there was no statement that Dr Cooke was, effectively, negligent in his treatment. I do not think Dr McPhee's statement suggests it. The plaintiff's lack of action consequent upon her own disappointment at not getting back to work quickly seems to me explicable in terms of her taking the view she was one of those unlucky patients experiencing a bad outcome. I cannot agree she was required in the circumstances to hunt around for an orthopaedic specialist willing to be critical of Dr Cooke. If it matters in the present context, I record a submission of Mr North's, which seems to me correct:
“18. It is no answer to say the legal advisors of a plaintiff might have done more by way of speculative investigations. The term ‘means of knowledge’ in s.31(2)(a) and s.30(1)(c) focuses on the knowledge of the injured person, not their advisor: Solar Optical Australia Pty. Ltd. v. Mills (1987) 163 C.L.R. 628 at 637 -8; Neilson v. Peters Ship Repair Pty. Ltd. [1983] 2 Qd.R. 419 at 423, 431, 439.”
Wood v Glaxo Australia Pty Ltd (1996) 2 Qd.R. 431 is an instructive example of a case in which the limitation period was extended in circumstances in which a plaintiff was entitled to wait until medical opinion as to her condition and the cause of it attained a sufficient degree of firmness. See per Macrossan CJ at 436 and Davies JA at 442.
The plaintiff did something about her view that Dr Cooke had exceeded the authority given to him. Neither that excess nor her presumed dissatisfaction at the result of the surgery he performed amounts to knowledge or means of knowledge that he had been negligent in the sense of selecting and/or giving completely inappropriate treatment.
For these reasons I granted the plaintiff's application in chambers. It was unnecessary to deal with her alternative application to add Dr Cooke as a defendant in the action against the employer. The parties agreed that if the limitation period were extended, the two actions ought to be consolidated, and I so ordered. The consensus was that costs questions ought to be reserved. It became unnecessary to consider striking out any part of the employer's amended defence.
I record that Mr Bowden foreshadowed his instructing solicitors would prepare and file an affidavit exhibiting correspondence demonstrating the inappropriateness of any suggestion that they or the Uniting Church in Australia Property Trust (Qld) were in any way responsible for delay occurring between the date of each of Dr Boys' reports and the date of receipt of a copy by the plaintiff's solicitors.