Blind v Hertess[2010] QDC 322

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff/applicant (hereinafter referred to as the applicant) is applying for an extension of the period of limitation up to and including 11 March 2010 on which date she filed a claim for damages for personal injury. This injury she says was caused by the negligence and/or breach of contract of the defendant/respondent (hereinafter referred to as the respondent), a medical practitioner specialising in plastic surgery who performed the bilateral breast augmentation (‘1st surgery’) on the 13^th July 2004 at the Cairns Day Surgery (‘the clinic’).

2. [2]
   Because the applicant alleges that she was injured after undergoing the surgery on 13^th July 2004, she was required under s.11 of the Limitations of Actions Act 1974 (‘the Act’) to have brought her action within 3 years, on or before the 13th July 2007.

3. [3]
   Pursuant to s.31(2) of the Act, the court may order the period of limitation for an action be extended if it appears to the court ‘that a material fact 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 that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation’. The section permits an extension of the limitation period for one year only after the relevant date. Accordingly, if the fact which the applicant alleges is ‘a material fact of a decisive character’ relating to the right of action to make her claim, it needs to have come to her knowledge at some point between 11 March 2009 and 11 March 2010.

Was there a material fact of a decisive character? (s.30(1)(a) and (b))

4. [4]
   The ‘material fact of a decisive character’ relied on by the applicant is the obtaining of the expert opinion of Dr Marshall on 4^th May 2010 suggesting that the advice and treatment of the respondent was below that of the standard to be expected of a competent and skilled surgeon. Counsel for the applicant submits that it was at this point in time that ‘a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interests’ s.30(1)(b).

5. [5]
   The steps taken by the applicant to obtain this evidence had been triggered following the discovery by the applicant on 1 April 2009 of certain information as a result of a Cairns newspaper article (Affidavit of Penelope Eden sworn 6^th August 2010 ex PAE 1) As a result of that article, the applicant retained her solicitors on or about 31^st March 2009. She then instructed her solicitors to investigate and make the necessary inquiries. That led to the expert opinion in question being obtained. The applicant relies on the opinion of Dr Marshall who identifies two aspects of breach of duty. The first was the choice and size of prosthesis to be implanted which was left to a nurse. The second was the failure of the respondent to be available for follow up treatment and post operative care which had primarily been left up to a nurse.

6. [6]
   The discovery of expert evidence to prove a case on liability has consistently been held to be a ‘material fact of a decisive character’, particularly in cases involving medical negligence, see Campbell & Anor v Bleakley [2007] QSC 351, Ervin v Brisbane North Regional Health Authority [1994] QCA 424 and Castlemaine Perkins v McPhee [1979] Qd R 469. The fact the applicant commenced her proceedings before obtaining Dr Marshall’s opinion is of no consequence to her right to bring this application: see Queensland v Stephenson (2006) 227 ALR 17 at para [30].

7. [7]
   There is no dispute that the applicant developed a capsule contracture (where the breast becomes hard) in her breast after the 1^st surgery. That required revision surgery (‘2^nd surgery’) to be performed on 24^th November 2004. There is also no dispute that following the 2^nd surgery the applicant developed a further complication, being a haematoma in her right breast which required further surgery (‘3^rd surgery’) to be performed on the 25^th November 2004 to drain it.    

8. [8]
   By reason of her claim, the applicant identifies her injuries as:

• pain and discomfort;
• infection,
• uneven sized breasts;
• scarring; and
• psychological distress.

9. [9]
   For the purpose of this application, the applicant gave evidence by affidavit affirmed 3^rd June 2004. She was required for cross examination.

10. [10]
    It was immediately apparent during the hearing that the applicant had some difficulty with the English language (it not being her first language). However after some careful discussion and my observations of her, I was satisfied that she was sufficiently able to understand and read English without the need for an interpreter for the purpose of the hearing of this application.

11. [11]
    The applicant’s evidence was that she had initially met with a nurse at the Cairns Surgery on 24^th June 2003 to discuss breast implants. She was provided with some pamphlets (but not the one shown to her during cross examination by Counsel for the respondent see Affidavit of Penelope Eden sworn 9^th August 2010 ex PAE-2). She was told about some complications that might arise with the surgery (approximately 1%) but not with respect to any particular complications that might be associated with the surgery. She then spoke with the respondent on the 25^th August 2003 about the proposed surgery. The applicant had also met with the respondent on the 5^th August 2003. She admitted under cross examination that when she had seen the respondent on that day, she had been told about anaesthetic, drains, antibiotics but did not agree that she had told her that her breasts might become hard, that she may develop an infection and if so, the implants would need to be removed. She also denied being told that the implants might rupture, ripple or wrinkle, and said that she only knew about capsule contracture after having read about it on the internet. She says that the respondent on that occasion did not explain to her any particular risks or complications that may be associated with the surgery proposed. The applicant again attended at the clinic on 22 March 2004. On this occasion she saw a nurse who she says advised her about the size and type of implants she should have. The respondent then performed the 1st surgery on the 13^th July 2004. On the 23^rd August 2004, the applicant rang the clinic to advise that her right breast had become hard, despite performing regular massage. Revision surgery was ultimately required and that surgery (‘2^nd surgery’) was performed on the 24^th November 2004 to address the capsule contracture problem that had developed. The applicant again underwent further surgery (‘3^rd surgery’) on the 25^th of November 2004. That was because a haematoma had developed in her right breast following the surgery which had been performed on the 24^th November 2004. The applicant had become quite ill as a result not long after getting home and had contacted the clinic. She initially spoke to a nurse about the problem but was told that the respondent would be contacted. After some time had passed, the applicant’s friend Mr Evans rang the clinic again on her behalf. He was advised that the respondent had not been able to be located at that stage. She was advised to call back the next morning.

12. [12]
    The following morning the applicant attended personally with her friend Mr Evans at the clinic. After some insistence, the applicant says she was eventually seen by the respondent who agreed to perform the surgery that afternoon. She was not charged for that procedure. During cross examination, the applicant accepted that the reason she believed that she had received a ‘special rate’, in respect to the 2^nd surgery, was because she felt that the respondent had not done the surgery correctly. She also agreed that she believed the 3^rd surgery was offered to her for free because the respondent had accepted that the fault lay with her and her staff.

13. [13]
    On the 9^th December 2004, the applicant was involved in a car accident. In that accident she suffered (amongst other things) swelling and tenderness over her chest and right breast. Her GP told her to immediately make an appointment with the respondent. At that consultation, she says the respondent told her that the implant may have ruptured due to the motor vehicle accident and needed to be removed and replaced. The respondent provided a report on her behalf (ex ‘EB3’). The applicant also says that during that consultation, the respondent told her she would not perform that procedure until her insurance money (from the car accident) came through. She accepted under cross examination that part of her notice of claim for the motor vehicle accident included a ruptured implant.

14. [14]
    The applicant says that because the respondent told her she would not perform the procedure until her insurance money came through and because of the difficulty she had obtaining appointments with the respondent, she attended upon her GP on 19^th May 2005 to get a referral to another plastic surgeon (ex GP4). Dr Ling refused to treat her because according to the applicant, she did not want to be involved with the respondent’s patients. She eventually went to Dr Zwart who performed right breast capsulectomy surgery (‘4^th surgery’) on the 26^th August 2005. That surgery achieved a good result though she says she has been left with scarring and discomfort under her right breast. She stated under cross examination that she felt that the care that she had received under Dr Zwart was much better care than the respondent had ever given her.

15. [15]
    She was also referred to a document while under cross examination annexed to her affidavit marked ‘EB2’ which had been written by her friend Mr Evans. She stated that the meeting with the respondent had taken place with Mr Evans present as stated in the letter (which is stated as having taken place sometime between 24^th and 26^th May 2005). She couldn’t remember exactly when that meeting had taken place but said it was in 2005. The applicant says however that during that meeting, the respondent admitted to her she had made a mistake, that she would take responsibility for it and would give her back her money. The applicant agreed under cross examination that she had thought that even as far back as the end of 2004, she had received poor medical care from the respondent.

‘Not Within her means of knowledge’ (s.30(1)(c))

16. [16]
    Section 30(1)(c) of the Act provides:

“a fact is not within the means of knowledge of a person at a particular time if, but only if—

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

(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. ”

17. [17]
    As observed by Keane JA (as he then was) in NF v State of Queensland [2005] QCA 110, s.30(1)(c) is not concerned with what might be expected of a reasonable person, rather it is concerned with what might reasonably be expected of this particular applicant in this case.

18. [18]
    Prior to reading the article in the Cairns Post newspaper on the 1^st April 2009, the applicant says that she did not know or even suspect that any of the conduct by the respondent relating to the 1^st surgery was negligent. The applicant gave evidence that even though she had had contact with other medical practitioners prior to reading that article, none of those practitioners ever raised with her the possibility that her ongoing problems may well have been due to the negligence of the respondent. She said that her inquiry with the Queensland Health hotline at a time around when the problems started with her breast merely led to her being told to go back to the respondent to have her fix the problem (see para 61 of her affidavit). The applicant had initially sought advice from her solicitors on or about 31^st March 2009 after having read the newspaper article. On the 15^th March 2009 (see para 64 of her affidavit which reads 15^th April 2010 which I find must be an error as proceedings were instituted on her behalf on 11 March 2010 by those same solicitors) she instructed her solicitors to make the necessary investigations and inquiries on her behalf. It is trite to say that some time would have had to elapse between those instructions and the receipt of any expert opinion which the claim for damages would be based.

19. [19]
    Counsel for the respondent on the other hand submits that there is ample evidence available to this court which would support a conclusion that the applicant’s material fact of a decisive character was within her means of knowledge long before 11^th March 2009.

20. [20]
    Counsel submitted that by the end of 2005 the applicant was well aware that she had suffered complications following the 1^st surgery and then again following the 2^nd surgery after she had developed a post-operative haematoma. Counsel points to the applicant’s own evidence where she accepts that the 2^nd surgery would be done at a ‘special rate’ (see her affidavit paragraphs [20] and [21]) and the applicant’s own belief that she believed something had gone wrong in the 1^st surgery in that the respondent had not done that surgery correctly (T1-34, L1-25). Counsel also pointed to the applicant’s own evidence that she believed she did not have to pay any fee to either the respondent or the hospital in respect of the 3^rd surgery performed (to drain the haematoma which had developed subsequent to the 2^nd surgery), because the respondent had accepted that the fault lay with her and her staff (T1-35 and T1-41 L1-25). He also pointed to the applicant’s evidence where she stated that she also believed that the respondent had done something wrong in the 2^nd surgery (T1-36, L1). Counsel referred me to other matters for consideration on this issue. Those included the fact that the applicant had solicitors acting for her in 2005 in respect of a personal injury claim involving a motor vehicle accident and therefore would have been well aware of her legal rights; the fact that another plastic surgeon (Dr Ling) had advised her she did not want to be involved with any patient of the respondent which was a matter of concern for the applicant (T1-45, L12); the fact that the applicant herself admitted that she had lost faith and didn’t trust the respondent by the time she saw Dr Zwart who provided her a ‘lot better care’ (T1-44, L45).

21. [21]
    Additionally, Counsel referred to the letter annexed to the applicant’s affidavit ‘EB2’ and the applicant’s keenness under cross examination to distance herself from it (T1-45 to 46), her acceptance that a meeting had taken place sometime during 2005 with the respondent at which time she says the respondent admitted that she had made a ‘mistake’ with her breast, that it was her ‘fault’ and that the respondent told the applicant that she would pay back the money she had spent. (T1-48 to T1-49). Counsel also referred to the medical notes available annexed to the affidavit of Emmelene Gray filed 13 August 2010 as ‘EKG-1’ in support of his ultimate submission that the cumulative effect of all of the matters to which I have just referred is that the applicant had the means of knowledge to find out her material fact well before 11^th March 2009.

22. [22]
    Counsel for the applicant on the other hand submits that there is no evidence before the court to show that the applicant was advised at any time that the selection of the prosthesis to be implanted and the advice provided to her in that regard prior to the 1^st surgery being performed was inappropriate. Counsel for the applicant submits that in those circumstances, her failure to take any steps to investigate a claim prior to 1 April 2009 was reasonable.

23. [23]
    Counsel for the applicant further submitted that even though the applicant conceded that she was aware that the respondent had accepted fault on her part (and her staff) at an earlier time, that fault only related to the 2^nd surgery which had been performed which was the failure to drain the haematoma as opposed to any breach of duty prior to the 1^st surgery being performed. Counsel submitted that there was no evidence before this court which shows that the applicant knew that the provision of treatment and care post-operatively provided to her only by a nurse was inappropriate.

24. [24]
    Counsel also referred to the fact that when determining whether the applicant had taken all reasonable steps, it requires a consideration of her particular circumstances. He pointed to the fact that the applicant was a pensioner, her limited English, the fact that none of the medical practitioners she had seen ever mentioned the possibility that the ongoing problems may be due to the negligence of the respondent. Counsel also referred me to the fact that the applicant says that she had considered she was the only person who had suffered the post operative complications until she read the newspaper article on 1 April 2009. Counsel also submitted that any belief that the applicant held that her ongoing problems were attributable to the 1^st surgery performed by the respondent was complicated by the motor vehicle collision which occurred on 9^th December 2004. Counsel submits that because the respondent would not perform surgery to remove and replace the ruptured implant until her insurance money came through, it was only then that the applicant had taken the obvious step to seek to have the problem rectified by another surgeon, Dr Zwart. Counsel also referred to the advice received from Queensland Health hotline that she should go back to the respondent to see if the respondent could fix the problem. Hence, he submits that is the reason why she had the conversations with the respondent in late 2005 seeking recompense.

25. [25]
    Counsel argues that even if it is accepted that the applicant had formed the view that the respondent did not perform the surgery correctly, that fact is still far short from her having evidence or even a suggestion that there had been negligence by the respondent in the conduct of the surgery. Accordingly, Counsel submits that it cannot be said that the applicant in all the circumstances failed to take reasonable steps to ascertain the material facts in question. Regrettably for the applicant, I am unable to accept her counsel’s ultimate submission. In arriving at my conclusion I have taken into the following factors.

26. [26]
    During my observation of the applicant while she gave evidence, I formed the view that she demonstrated a sufficient understanding of both written and spoken English. Accordingly, English not being her first language did not impact in any great degree on her ability to give her evidence. While it is true the applicant had only come to Australia in 1995 from Hungary, that fact did not prevent her from being sufficiently equipped to exercise her legal rights in respect of the personal injury claim involving a motor vehicle accident in 2005. She provided instructions to solicitors to act on her behalf in that action and to initiate proceedings.

27. [27]
    The applicant also says that prior to reading the newspaper article published on 1^st April 2009, she had considered that she was the only person who had suffered post operative complications. However, that fact is not borne out by her own affidavit which shows that she first consulted her solicitors on or about the 31^st March 2009.

28. [28]
    The applicant also says that none of the medical practitioners she saw during the relevant time ever mentioned to her the possibility that her ongoing problems may be due to the negligence of the respondent. That fact is not borne out by her own evidence which was that Dr Ling had told her in 2005 that she didn’t want to be involved with the respondent’s patients and that had caused her concern. (T1-45 L12). When asked why it concerned her, she replied ‘because I am sick’.

29. [29]
    Her evidence at hearing was also contrary to her affidavit evidence insofar as the Queensland Health hotline inquiry was concerned. She deposes that she had sought that advice however under cross examination she admitted that it was her friend Mr Evans that had made the call for her. Even if it is accepted that Mr Evans did so on her behalf, her affidavit evidence was that she had sought that advice through that hotline when the problems started with my breast. (my emphasis). Consistently with the applicant’s own evidence, those problems had first started not long after the 1^st surgery had been performed, so much so that she rang the clinic on the 23^rd August 2004 as a result of her right breast becoming hard notwithstanding regular massage.

30. [30]
    The medical records annexed to the affidavit of Emmelene Gray filed 13^th August 2010 ‘EKG-1’ (the accuracy of which was not challenged) also shows that in late 2005, during the course of those two consultations on 9^th and 16^th November 2005, the applicant considered that the respondent had been incompetent, that the respondent had put the implant in upside down and had creased it and that she had been to many surgeons who would not operate. Those notes reveal that the applicant had told the respondent that she knew she was a bad surgeon and would take her story to New Idea to ruin her reputation. The applicant’s friend Mr Evans, who was also present at those meetings, also said that the respondent could refund the money that they had spent on the initial augmentation. (my emphasis) The annexure to the applicant’s own affidavit ‘EB2’ also refers to ‘botched breast augmentation surgery’ which in my mind can only be referring to the 1^st surgery which was in fact the procedure (that is, breast augmentation) that was performed. The applicant also accepted under cross examination that even though her friend Mr Evans had been the author of that letter she understood what in fact ‘botched’ meant. (T1-49 L15). The applicant’s own evidence at hearing also does little to assist her on this issue. Her concession during cross examination that she believed she had received a special rate for the 2^nd surgery was because she believed that was because something had gone wrong in the 1^st surgery in that the respondent hadn’t done the surgery correctly. She also gave evidence that she also believed she had got a special rate on the 2^nd surgery because the implant ‘is fold’. (T1-34 L15 – 20).

31. [31]
    Having regard to the matters I have just outlined, I find that by late 2005, the applicant was possessed with a sufficient body of knowledge and belief that required her to take all reasonable steps to investigate the possibility of a claim against the respondent. The cumulative effect of those matters is that I find that the applicant had within her means of knowledge to find out material facts well before 11^th March 2009. I find that the applicant failed to take all reasonable steps to find out those facts before that time. It follows that the applicant’s application must therefore fail.

32. [32]
    As a matter of completeness only, I will now address the other relevant considerations on an application of this nature, notwithstanding that I have already considered the applicant’s application must fail.

‘Is there evidence to establish a right of action apart from a defence founded on the expiration of a period of limitation?’

33. [33]
    I find that for the purpose of this application, the report of Dr Marshall satisfies the requirements of s.31(2)(b) of the Act in that there is evidence to establish the right of action. This evidence could reasonably be expected to be available at trial which would, if unopposed by other evidence, be sufficient to prove the applicant’s case as pleaded.

Exercise of the discretion

34. [34]
    Once the requirements of s.31(2)(a) and (b) are established, there remains the exercise of the court’s discretion whether to grant the extension. Counsel for the respondent argues that prejudice will be suffered if the applicant were granted an extension of time. The primary submission made on behalf of the respondent is that because the respondent herself will have little recollection of the events in question without reference to the contemporaneous medical notes made, she will be unable to have a fair trial of the action.

35. [35]
    Many of those notes however are still available and have been disclosed notwithstanding that it is the respondent’s assertion that some of the medical records were lost during the transition from one computer software to another during 2007 (affidavit of Emmeline Gray filed 13^th August 2010 para 6 and Affidavit of Penelope Eden sworn 6^th August 2010 para 9). In any event, the respondent will be able to give evidence as to what her ordinary practice was at the relevant time including the advice which she gives prior to surgery being performed and any post operative treatment and care she usually would give. Accordingly, that factor alone is not enough to amount to significant prejudice.

36. [36]
    Most if not all of the relevant witnesses are available to be called in the trial. Inquiries by the respondent which have recently been conducted regarding the location of some of those witnesses have proven fruitful (Ms Rogers who was a nurse at the relevant time). The respondent argues however that because Ms Diversi (another nurse) also has no recollection of her contact with the applicant during the relevant time, this fact also adds weight to the submission made that the court should not exercise its’ discretion in the applicant’s favour to extend time. That submission overlooks however the medical notes available in respect of the consultations which were undertaken by the nurses and the respondent with the applicant during the relevant time. (see Affidavit of Emmelene Gray filed 13^th August 2010 ‘EKG-1’).

37. [37]
    While an extension of the limitation period might be expected to cause some prejudice and this is a factor which must necessarily be taken into account in the exercise of the discretion, I am not persuaded that on the evidence before me that the respondent will be denied a fair trial of the action based on the points which the respondent has relied: Brisbane South Regional Health v Taylor (1996) 186 CLR 541.

Costs

38. [38]
    In relation to the question of costs, the general rule under r.681 UCPR is that the costs of the proceedings, including an application are to follow the event unless the court orders otherwise. Should the parties fail to reach an agreement on the question of costs for this application, then I will allow them 28 days from the date of this judgment to provide to the court in writing submissions as to why the usual order as to cost should or should not be made.

Orders

39. [39]
    I make the following orders:

1. The application is dismissed.

2. The parties are given leave to make submissions in writing on costs within 28 days, failing agreement between the parties.