DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application for an extension of time within which to institute proceedings in this court pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”).  Proceedings were in fact instituted by consent on 27 April 2004 but stayed until the applicant complies with Part 1 Chapter 2 of the Personal Injuries Proceedings Act 2002 and leave is granted to proceed otherwise with the claim which was commenced several years after the expiration of the limitation period within which actions of this nature must be commenced.

2. [2]
   The applicant’s claim arises out of the respondent’s alleged mis-diagnosis of the applicant’s injury which he suffered on 12 October 1997 and for which he sought treatment from the respondent on 13 and 17 October 1997 respectively.

Legislation

3. [3]
   Pursuant to s 11 of the Act an action for damages in respect of personal injuries “... shall not be brought after the expiration of three years from the date on which the cause of action arose.”

4. [4]
   Section 31(2)(a) of the Act in effect provides that where a person claims to have a right of action a court may extend the limitation period within which a claimant may bring an action for damages in respect of personal injuries so that it expires one year after the date upon which “a material fact of a decisive character relating to the right of action” came to the knowledge of the applicant “… after the commencement of the year last preceding the expiration of the period of limitation for the action”.

5. [5]
   Translating that circumstance to the instant application it is necessary for the applicant to establish that he became aware of “a material fact of a decisive character relating to the right of action” not before 13 October 1999 in which case his extended limitation period would expire one year after the date he became aware of that “material fact”.

Facts

6. [6]
   The applicant injured his right leg during a netball game on Sunday 12 October 1997 and attended the Kedron Medical Centre that afternoon where he was examined by Dr T L Lekatsas.^[1]

7. [7]
   The applicant describes the doctor’s examination of him which included that the doctor asked him “… to roll over on to my stomach and grabbed my calf and squeezed it”.^[2]  Significantly the applicant asked the doctor at this first consultation “whether I had damaged the Achilles tendon”.^[3]

8. [8]
   The applicant states that this doctor’s diagnosis of his injury was “… that it was most likely that I had ruptured my calf muscle”.^[4]  He was told “… to go home and rest it … to keep it up as much as I could and monitor things over the next couple of days”.^[5]

9. [9]
   On the following day, Monday 13 October 1997 the applicant attended the Banyo Clinic where he saw the respondent. After examination the respondent affirmed the diagnosis made by Dr Lekatsas the previous day “… that the diagnosis of a ruptured muscle was a safe diagnosis”. Again the applicant asked the respondent “whether it could have been a ruptured Achilles and he said he did not believe so. He thought that if it was a ruptured Achilles I would have experienced a lot more pain and not the same extent of swelling.”^[6]

10. [10]
    The applicant’s leg problems did not improve over the next few days and he saw the respondent again on Friday 17 October 1997 when on this occasion the applicant’s wife asked the respondent again “… for confirmation that it was nothing to do with the Achilles tendon and he advised that it was not.”^[7]

11. [11]
    The respondent prescribed painkillers and advised that the injury could take up to seven months to heal. He recommended that the applicant should hire crutches, which he did and he was off work for a period of two weeks.

12. [12]
    The applicant further deposes that after 4 weeks his immobility was beginning to frustrate him and that he thought that if he “could develop the muscle and get some mobility into it, it might improve”. He commenced bike riding. On one occasion when he was pedalling he suddenly felt pain in his right leg when he felt a “lock and release sensation” in his outer right ankle. The pain subsided quickly and no medical treatment was sought.

13. [13]
    The applicant noticed that the toes on his right foot began to claw noticeably in February 1998.

14. [14]
    The applicant further deposes that in March 1998, five months post injury, he attended on his physiotherapist, Lawrence Townsend (“Townsend”), whom he had previously consulted on other matters and after explaining to Townsend the history of his injury, Townsend examined the applicant’s leg. He advised him that “there was no doubt that the Achilles tendon was detached”.^[8]  The applicant further states that Townsend informed him that it was “not a good thing” that the applicant had not had surgery to the leg nor that it had not been immobilised.^[9]  The applicant further states that the physiotherapist advised him “that it was crucial for a diagnosis to be made within six days and that if surgery is not to be performed that immobilisation should occur”.^[10]

15. [15]
    At this stage the applicant states that while he understood that “there had been a failure to diagnose the rupture (sic) Achilles” he thought that that “only had implications for delay in recovery and not that it would impact on the extent of (his) recovery”.^[11]  The applicant understood that he was still in the recovery period and that the exercises prescribed by Townsend were essential to his rehabilitation.  He states in paragraphs 29 and 30 of his affidavit that:

“After 3 weeks of performing the home exercise prescribed by Townsend, I returned to him and he then gave me exercises to strengthened the calf.  Again, I performed these exercises as part of my training routine… I simply understood that with these exercises, I had the same prospects of recovery as I would have had, had the appropriate diagnosis been made originally…the exercises did not improve my mobility.  My gait was still affected and I could not run or jump but these were not activities that I normally did and I was able to modify what I did do to accommodate the restrictions.”

16. [16]
    In his affidavit filed 15 April 2004, Townsend confirms his level of experience “… at an elite level in sports injury treatment and management” and that he has “… witnessed around 20 Achilles tendon ruptures in my career”.^[12]

17. [17]
    Townsend further deposes that he did not treat the applicant for an Achilles tendon rupture at this time and that he had no recollection or record of any treatment for such a condition. He states further that he “may have given Mr Hale a strengthening program for his calf muscles among other exercises” but did not treat him for an Achilles injury. Notwithstanding this evidence the applicant’s evidence is quite clear that Townsend had advised him of the Achilles injury.

18. [18]
    It would appear from the material that between April 1998 and November 2000 the applicant did not seek treatment for his right leg injury but the matter was raised quite coincidentally by Townsend when he was treating the applicant’s wife at about this time when the applicant was asked by Townsend if he was “still having problems” with the leg and was asked to perform certain tests.

19. [19]
    According to the evidence the applicant was given “more exercises” to perform and again there was no further medical treatment sought until September 2001 when the applicant “developed trouble with my left knee”.

20. [20]
    This condition prompted a series of consultations with other medical practitioners ultimately resulting in a referral to Dr Ben Forster whom the applicant consulted on 1 May 2003. Dr Forster confirmed that “on examination he has evidence of a previous tendon Achilles rupture approximately 3 cm above its insertion”.

21. [21]
    Dr Forster gave the applicant certain advice in respect of any proposed “reconstruction of his tendon Achilles” and his reports on that advice are contained in the exhibits to his affidavit filed 15 April 2004.

Applicant’s Case

22. [22]
    In written and oral submissions both counsel have referred the Court to a number of relevant authorities on point. The approach to be taken by a court in considering applications of this nature is well documented in the High Court decision of South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Taylor”).

23. [23]
    Counsel for the applicant has helpfully paraphrased the approach taken by the High Court in Taylor applicable to this proceeding as follows:-

1. “(i)
   the applicant must show that a material fact of a decisive character was not within his means of knowledge until after October 1999;

2. (ii)
   there is evidence to establish a right of action apart from a limitation defence;

3. (iii)
   the applicant must satisfy the legal onus on him of showing that the justice of the case requires the discretion to be exercised favourably;

4. (iv)
   fundamental to (iii) is a need to show that the proposed defendant is not significantly prejudiced.”

“Material fact of a decisive character”

24. [24]
    The material fact relied upon by the applicant was explained by the applicant’s counsel in his submissions as follows:

“…it’s one of those cases where the material fact of a decisive character that’s relied on by the applicant is that he didn’t know of the severity of his symptoms, not that that just goes to the question of quantum but that prior to his ascertaining the material fact of a decisive character the extent of his symptoms as reasonably known to him were so minimal that it wasn’t in his own interests to bring a claim – in other words, that he believed it was so trivial that the matter would improve and that a reasonable person properly advised wouldn’t in the circumstances bring a claim to protect his interest.”^[13]

25. [25]
    The relevant test is set out in the judgment of the then Mr Justice Macrossan in Moriarty v Sunbeam Corporation Limited [1988] 1 Qd R 325 at 333 (“Moriarty”) where His Honour stated:

“In cases like the present an applicant for extension discharges his onus not simply by showing that he has learned some new facts which bear upon the nature or extent of his injury and would cause a new assessment in a quantitative and 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 interests pursue it.”

26. [26]
    Applying the facts of this proceeding to the above principles, the evidence is that the applicant himself suspected an Achilles tendon injury immediately after he suffered the injury on 12 October 1997; he expressed that suspicion to the respondent on 13 October 1997 and according to the applicant’s evidence had that “suspicion” confirmed by the physiotherapist, Townsend, in March 1998 when he was told that the absence of surgery for the injury and/or the immobilisation of it “… was not a good thing”.

27. [27]
    Despite these suspicions and receiving this information five months post-accident, the applicant did not seek any medical treatment again for the right leg injury until other problems intervened in or about September 2001 resulting in the subsequent consultations to which reference has been made above.

28. [28]
    Respondent’s counsel in his submissions has referred me to s 30(c) of the Act which provides that:

“(c) a fact is not within the means of knowledge of a person at a particular time if, but only if –

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

2. ii) 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…”

29. [29]
    The applicant’s own evidence reveals that after seeing Townsend in March 1998 the applicant knew that it was “crucial” that any Achilles tendon injury be diagnosed within six days of such injury occurring and further that the lack of surgery and/or immobilisation in respect of it was “not a good thing”.

30. [30]
    As was stated in Healy v Femdale Pty Ltd [1993] QCA 210 (unreported 9 June 1993) (“Healy”):

“the question of 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”.

31. [31]
    In my opinion a reasonable person in the applicant’s situation would have sought immediate expert medical opinion in or about March 1998 as to whether the problems he was continuing to experience at that time and which he had been experiencing for some five months to that date were due to an Achilles tendon rupture (which he suspected from the outset) because of the further complications that might arise if the condition was not diagnosed and treated promptly.

32. [32]
    In my opinion further, a reasonable person in the applicant’s position should have appreciated that a failure to seek expert medical opinion at that time would have a detrimental effect on his recovery from the injury and the pursuit of any legal remedy.

33. [33]
    As was stated by Thomas JA in Pizer v Ansett Australia Limited [1998] QCA 298 at paragraph 16:

“The following proposition poses a test that is critical to the determination of this case.  If a reasonable woman knowing what the plaintiff must have known and having taken appropriate advice on those facts would have regarded them as showing that a right of action would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action that she ought in her own interest to bring it then the plaintiff fails to show “that a material fact of decisive character relating to the right of action was not within the means of knowledge of the applicant” prior to the necessary date”  (refer to footnotes p 10 of Pizer’s judgment).

34. [34]
    As Thomas JA further observed at paragraph 18,

“There is no requirement actual or notional to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so.  The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had.”

35. [35]
    The further observation of Derrington J in Moriarty at 336 is also relevant when he said:

“… if prior to the respondent’s learning that fact, there were sufficient material facts of a decisive character which would have led a reasonable man appropriately advised to regard those facts as showing that there was a good cause of action and that in his own interests the respondent ought to have brought proceedings, then the newly discovered fact, although it might be described as material, could not be said to be of a decisive character.”

36. [36]
    In all the circumstances of the instant case I find that the applicant has failed to satisfy his onus of showing that a material fact of a decisive character was not within his means of knowledge prior to October 1999. I do not accept his counsel’s submissions referred to in paragraph [24] above that “… The extent of his symptoms as reasonably known to him were so minimal that it wasn’t in his own interest to bring a claim …” that is, to do so within the relevant limitation period.

37. [37]
    In my view the only fact in this case (which he was told post-May 2003 on his evidence) and which was not within the applicant’s knowledge prior to October 1999, if he had sought expert medical opinion on his condition, was that because of his delay in having the condition diagnosed within time, the corrective surgery “…is more complex and there are greater complications involved”^[14] and his recovery period will be longer.  It is not the case that Dr Forster’s diagnosis in May 2003 would not have been available to him at any time before October 2000 (expiration of the limitation period) if he had sought “appropriate advice” in respect of his injury.  As I see it he therefore fails the tests set out in Moriarty and Healy above.

38. [38]
    In the light of this finding it is not strictly necessary for me to deal with the other issues of the applicant’s case to be considered by adopting the approach set out in Taylor where the merits of the matter may favour the applicant.  Unfortunately on my finding the applicant has failed to establish the necessary core issue to justify a consideration of the others.

39. [39]
    My orders are therefore as follows:-

1. That the application for an extension of the time within which to institute proceedings pursuant to the provisions of s 31 of the Limitation of Actions Act 1974 (Qld) is dismissed; and

2. That the applicant pay the respondent’s costs of and incidental to this application as agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.