McKeown v Hertess[2011] QDC 255

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The plaintiff Ceara Louise McKeown (“the applicant”) applies to the court for the primary order “That the time for commencement of proceedings claiming damages for personal injuries by the plaintiff be extended to 11 March 2010 pursuant to section 31(2) of the Limitation of Actions Act 1974”^[1] (“LAA”).

2. [2]
   The applicant filed her claim on 11 March 2010 naming as first defendant Isolde Hertess (“the respondent”) and second defendant Ramsay Health Care Australia Pty Ltd. A Notice of Discontinuance has since been filed in respect of the second defendant so that the claim is now against the respondent only.^[2]

3. [3]
   The applicant’s claim against the respondent is that the applicant has suffered injury and other loss “as a consequence of the negligence and/or breach of contract” of the respondent who at all material times “was a specialist plastic surgeon carrying on practice in Cairns” and who performed “bilateral breast reduction” surgery on the applicant on the “6 December 2005” at the Cairns Private Hospital. In the normal course of events the applicant was therefore required to have commenced any proceeding against the respondent within three years of the 6 December 2005 that is not later than 6 December 2008.^[3]

4. [4]
   Pursuant to s 31(2) of the LAA the court may order the period of limitation for an action be extended if “it appears to the court –

1. (a)
   that a material fact of 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 proceeding the expiration of the period of limitation for the action; and

2. (b)
   that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation”.

In which case “the court may order that the period of limitation for the action be extended … (for) 1 year after that date”.

5. [5]
   In this matter the applicant filed her Claim on 11 March 2010, therefore “a material fact of a decisive character relating to the right of action” needs to have become known to the applicant between 11 March 2009 and 11 March 2010. This conclusion arises from the observations of the High Court in Queensland v Stephenson (2006) HCA 20; 226 CLR 197 at [30] when it said:

“The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance 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 (as in s 30(1)(b)). If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time. If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.”

6. [6]
   In this application therefore, the critical question facing the applicant is, was a material fact, namely in this instance “the fact of the occurrence of negligence or breach of duty…. on which the right of action is founded” not within the applicant’s means of knowledge until after the 11 March 2009 i.e. the applicant “did not know (that) fact” before the 11 March 2009 but she has “taken all reasonable steps to find out (that) fact” before the 11 March 2009 (see s 30(1)(c)(i) & (ii) of the Limitations of Actions Act 1974). (emphasis added).

The Law in general:

7. [7]
   The past 30 years have seen the development of a plethora of case law on the interpretation of sections 30 and 31 of the LAA including widespread criticism for its convoluted and obtuse drafting and my extrapolation from those authorities of the criteria which a court has to consider in determining whether to exercise its discretion to extend the limitation period in which to commence an action under section 31(2) are the following:

1. (a)
   There must be a material fact;

2. (b)
   The fact must be of a decisive character;

3. (c)
   The fact must not have been within the means of knowledge of a plaintiff until after “the critical date”;^[4]

4. (d)
   A plaintiff must have taken all “reasonable steps” to establish the fact before “the critical date”;

5. (e)
   There is evidence to establish a plaintiff’s right of action (excluding the expiry of limitation point); and

6. (f)
   A defendant is not prejudiced at trial by the extension of the limitation period.

8. [8]
   Section 30(1)(a) sets out what a “material fact” may “include”; section 30(1)(b) sets out when a “material fact” is “of a decisive character” and section 30(1)(c) defines when “a fact is not within the means of knowledge of a person at a particular time….”. (emphasis added).

9. [9]
   In Queensland v Stephenson referred to in [5] above, the majority of the court attempted to crystallise the proper “construction” of section 31(2) in the terms set out at paragraphs [29] and [30] thereof with paragraph [29] stating:

“[29] The better view is that the means of knowledge (in the sense given by para (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have “a decisive character”. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant’s right of action is of a decisive character until a reasonable person “knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing” the features described in subparas (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.”

The “practical result” statement then followed at paragraph [30].

10. [10]
    Section 30(1)(a)(i) of the LAA provides that “the fact of the occurrence of negligence… or breach of duty on which the right of action is founded” is a material fact relating to the right of action. The fact will be of a “decisive character” if, without it, no cause of action would exist against the defendant.

11. [11]
    The discovery by a patient that a medical practitioner had provided advice, performed a surgical procedure or provided medical treatment at a standard below that to be expected of a competent and skills surgeon would ordinarily be a material fact of a decisive character. As Thomas J.A. wrote in Dick v University of Queensland [1979] Qd R 469:

“The distinction between knowledge that someone has caused an injury and knowledge that that person has caused it negligently is fundamental.”^[5]

12. [12]
    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: Campbell & Anor. v. Bleakley [2007] QSC 351; Ervin v. Brisbane North Regional Health Authority (Appeal No. 267 of 1993) Court of Appeal, Queensland; Castlemaine Perkins v. McPhee [1979] Qd R 469.^[6]

Has the applicant taken “all reasonable steps” to find out the fact?:

13. [13]
    The test to ascertain whether the applicant has taken “all reasonable steps” to find out the fact is both objective and subjective. In Castlemaine Perkins v. McPhee,^[7] the Full Court stated that the test of the reasonableness of the steps taken by the applicant is objective with regard being had to the background and situation of the applicant.^[8]

14. [14]
    In Do Carmo v. Ford Excavations Pty Limited (No. 5)^[9] Dawson J. stated:

“The remarks of Lord Reid in Smith v. Central Asbestos Co made in reference to a similarly worded provision, are to the point:

In order to avoid constructive knowledge, the plaintiff must have taken all such action as it was reasonable then to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with the “reasonable man”. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience. It is also to be noted that it does not matter what advice the appellant received … what is important is the means of knowledge that was reasonably available to the appellant. And that must mean available in a practical and not theoretical sense.”^[10]

15. [15]
    In Royal North Shore Hospital v. Henderson,^[11] Mahoney J. stated:

“The phrase “reasonable steps” may have at least two significations. A particular step not taken may not fall within “reasonable steps” because, in the circumstances, it was not reasonable to expect the plaintiff to take any steps at all; or it may not fall within the phrase because, though he could reasonably be expected to take some steps, the step in question could not reasonably be expected of him. The latter is, perhaps, the meaning ordinarily to be given to the phrase but it may, I think, also include the former. In the present context, I do not think it was intended that a fact should be taken to be within the means and knowledge of a plaintiff and it would not have been reasonable to expect him to take any steps at all.

…

In this regard, it is, I think, to be noted that in determining what is “reasonable” for this purpose, the Act does not require that it be assumed that the plaintiff would have taken advice. There is a distinction in this regard between s 57(1)(e) and s 57(1)(c). Whether it would have been reasonable to take advice and what steps thereafter would have reasonably been taken must be determined with reference to the particular plaintiff or, possibly, by reference to him as a reasonable person.”^[12]

16. [16]
    Most recently, in NF v. State of Queensland^[13] Keane J.A., with whom the other members of the Court agreed, said at [29]:

“It is to be emphasised that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injury. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act. This view is supported by the text of s 30(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b).

…

Section 30(1)(c) is not concerned with what might be expected of a reasonable person: it is concern with what might reasonably be expected of the applicant in the particular case.”^[14]

Law on “Prejudice”:

17. [17]
    An applicant who satisfies the elements of section 31(2) of the Act is not entitled as of right to an order. The applicant must still justify the exercise of the court’s discretion in his or her favour. The principal discretionary ground which might prevent an order being made to allow an applicant to commence proceedings outside the limitation period is prejudice that will be suffered by a respondent (defendant) if such an order is made. The onus remains on the applicant to establish that the discretion should be exercised in his/her favour. As Keane JA held in HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 at [57]:

“Even where the requirements of s 31(2) have been satisfied, the burden remains on the applicant for relief to show good reason for the favourable exercise of the discretion. An applicant who is unable to show that a fair trial can take place notwithstanding the delay which has occurred will not discharge that burden.”

18. [18]
    The leading case on the effect of prejudice on the court’s discretion is Brisbane South Regional Health Authority v Taylor [1996] HCA 25. Toohey and Gummow JJ explained it at 548-549 as follows:

“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.” (footnotes omitted).

McHugh J held at 555:

“If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, [the medical practitioner] might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”

19. [19]
    This topic was again more recently discussed by our Court of Appeal in Hertess v Adams [2011] QCA 73 at paragraphs [4] to [8] and [14] to [16] thereof highlighting “the High Court’s exposition of principle in Brisbane South Regional Health Authority v Taylor” and in particular at paragraph [7] of Muir J.A’s judgment quoting McHugh J explaining “the significance of the expiration of the limitation period and the likely consequence of a finding of actual significant prejudice. Ultimately it comes down to the fundamental question – has the applicant also discharged his/her onus, that notwithstanding that the applicant has satisfied the requirements of s 31(2) of the LAA, is a defendant likely to be able to defend him/herself fairly at trial? It is then a matter of analysing the evidence to determine whether a “fair trial” can be achieved.

Applicant’s chronology:

20. [20]
    The applicant has provided the following “Brief chronology” to the court of relevant dates and events namely:

Applicant’s Evidence:

21. [21]
    The applicant’s evidence includes the following:

1. (a)
   Her affidavit with exhibits filed 10 June 2010;

2. (b)
   Three affidavits with exhibits of Olamide Kowalik solicitor filed 10 June 2010; 5 August 2010 and 16 August 2010 respectively; and

3. (c)
   The affidavit of Linda McKeown (applicant’s mother) filed 16 August 2010.

All of whom were cross-examined at the hearing of the application.

22. [22]
    In her evidence the applicant says among other things:

Applicant’s Cross-Examination:

23. [23]
    The applicant was cross-examined at the hearing which included the following:

24. [24]
    In re-examination the applicant stated that she could not recall being advised before the surgery that because she had “large and heavy breasts and required a fairly large reduction…..that the risk of complications was considerably increased”.^[44]

Applicant’s Mother’s Evidence:

25. [25]
    The applicant’s mother gave evidence which included that she “was fairly certain that she (the applicant) was given some pain relief tablets” but could not “recall one way or the other whether she (the applicant) was given antibiotics from the hospital.”^[45]

Respondent’s Evidence:

26. [26]
    The respondent relies upon the evidence of Penelope Anne Eden, Solicitor, contained in Ms Eden’s affidavits with exhibits sworn on 6 August and 9 August 2010 respectively both filed on 9 August 2010 and on Ms Eden’s further affidavit sworn and filed 16 September 2010.

Applicant’s submissions:

27. [27]
    To be successful in the application the applicant accepts that the court must be satisfied of three criteria namely:

“(a) The applicant has a cause of action against the respondent in the first place (“the evidence point”);

2. (b)
   There must be a material fact of a decisive character that came within the knowledge of the applicant within the terms of section 31(2)(a) of LAA (“the material fact point”); and

3. (c)
   The respondent is not prejudiced by the delay allowing the matter to proceed (“the prejudice point”).”

28. [28]
    These same criteria therefore reflect the “three bases” upon which “the respondent resists the application to extend the limitation period”^[46].

29. [29]
    To establish “the evidence point” the applicant relies upon the dictum of Macrossan CJ in Wood v Glaxo Australia Pty Ltd^[47] who explained the test as follows:

“The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff’s evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s 31(2)(b) 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.”

30. [30]
    The applicant further submits that “This approach has been followed in Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549 explaining the decision in Reeves v Thomas Borthwick and Sons (Australia) Pty Ltd.”^[48] In particular the applicant refers to paragraph [28] of Raschke in the judgment of Keane JA who relevantly stated:

“[28] As to s. 31(2)(b) of the LAA, in Broken Hill Pty Co. Ltd v. Waugh Clarke J.A., discussing the equivalent provision in New South Wales, said: ‘In this respect attention should be directed to the precise words of the subsection. They do not lay down as a condition a requirement that there be evidence to establish conclusively, or even on the probabilities, the cause of action. All the words of the subsection require is that there is evidence available to establish the cause of action.’”

31. [31]
    The applicant further submits that the respondent failed to warn the applicant of the risks to her in undergoing the breast reduction surgery and this aspect should be addressed under three criteria viz:^[49]

32. [32]
    It is submitted that Professor Marshall’s report of 5 May 2010 supplies the answers to these criteria wherein he states among other things:^[50]

33. [33]
    The applicant further submits that on her evidence she was not prescribed antibiotics post-operatively when she should have been although she resiled from that former positive assertion under cross-examination. The applicant submits that while there is evidence to the contrary on the respondent’s case that is an issue which should be debated at trial not at this hearing.

34. [34]
    The applicant further submits that she has discharged her onus of proof under section 11 of the Civil Liability Act 2003 despite the fact that she is now precluded from giving evidence “about what she would have done” (if she had have been adequately warned) by relying upon the authority of Elbourne v Gibbs^[51] and in particular paragraphs [72] to [78] of the judgment of Basten JA summarised at paragraph 78 as follows:

“It is clear, nevertheless, that two propositions flow from Chappel v Hart, relevantly for the present case. The first is that the element of causation must be established and, accordingly, absent agreement between the parties that this issue was not in dispute, the failure of the trial judge to make a finding in this respect demonstrated error. The second proposition is that evidence of a failure to provide information, particularly as to potential risks of the procedure, combined with the materialisation of those risks, is sufficient to establish a prima facie case of causation, which is capable of acceptance in the absence of a more plausible contrary inference.”

35. [35]
    The applicant further submits that the applicant has satisfied the court of section 31(2)(a) of the LAA within the meaning of section 30(1)(b) and (c) in that the “material fact of a decisive character” was the contents of Professor Marshall’s report of 5 May 2010 which did not come to her attention until it was received by her solicitors on 27 May 2010 in respect of which she had “taken all reasonable steps” to ascertain those facts as early as 5 May 2009 when she first consulted her solicitors following her reading of the Cairns Post on 1 April 2009. The fact that the applicant commenced proceedings before 27 May 2010 is irrelevant on the authority of Opacic v Patane.^[52]

36. [36]
    On the question of “prejudice” the applicant submits that on the relevant authorities there is no prejudice to the respondent if the extension of time is granted as all relevant medical and hospital records are available as well as the potential witnesses.

37. [37]
    Ultimately, the applicant submits that she has discharged her onus of proof in respect of all relevant criteria and the relief sought in the application should be granted.

Respondent’s submissions:

38. [38]
    The respondent opposes the application to extend the limitation period on the “three bases” as set out in paragraph [27] hereof and expands on that basic submission in some detail.

39. [39]
    The respondent agrees that “The test as to what evidence is necessary to establish a right of action within the meaning of section 31(2)(b) was stated by Macrossan CJ in Wood v Glaxo Australia Pty Ltd and recently confirmed by Keane JA in Raschke v Suncorp Metway Insurance Limited.”^[53] The respondent further submits however “that the applicant has not shown:

a) any evidence that the respondent failed to warn her;

b) any evidence that she would have acted differently if warned;

c) any evidence that the respondent failed to prescribe antibiotics to her in a timely way”.^[54]

40. [40]
    The respondent elaborates upon these basic submissions as follows:-

“Evidence point – failure to prescribe antibiotics”:

The respondent submits that the evidence adduced at the hearing included the following:

• The applicant was discharged from the Cairns Private Hospital on 7 December 2005 “on Keflex an antibiotic”^[55];
• The applicant was concerned about infection for the first time on 15 December 2005 but “could not recall one way or the other whether antibiotics were prescribed that day”^[56];
• The applicant’s mother could not provide any evidence on point;^[57]
• When the applicant attended on her general practitioner (Dr Sainsbury) on 23 December 2005 his note says “no overt infection”;^[58]
• The only evidence from the Applicant on point is that the respondent prescribed antibiotics to the applicant on 15 December 2005 when the applicant complained of infection and the respondent was not “consulted again and indeed there is no evidence of “any ongoing infection”;^[59]
• Further another antibiotic “Ciproxin” was prescribed by the Cairns Plastic Surgery on 26 January 2006 according the respondent’s notes which the applicant cannot refute.
• Ultimately the respondent submits that “there is absolutely no evidence before the court that the respondent breached her duty of care to the applicant by failing to treat in a timely way with antibiotics” any infection which the applicant may have suffered.

“Failure to warn” breach:

41. [41]
    Essentially the respondent submits that the evidence shows that the applicant was warned of the various “risks” to which Professor Marshall refers at “point four of his report dated 5 May 2010” namely “loss of nipple sensitivity and circulation, infection and scarring”.^[60] The respondent therefore submits that the applicant was given all appropriate “warnings” (which Professor Marshall says ought to have been given) in the pamphlets provided to her and on the website which is a sufficient discharge of the respondent’s duty.^[61]

“Causation” point:

42. [42]
    The respondent submits that the onus of proof rests with the applicant to establish to the court that “had proper warnings been given she would not have proceeded with the operation that is she needs to prove that the failure to warn caused her harm.”^[62] The respondent submits that the applicant’s case must fail on this issue in that the applicant’s evidence is she cannot recall “what warnings she was given” and has placed no material before the court on causation which must be “decided subjectively” under section 11(3)(a) of the Civil Liability Act 2003. Further on the evidence before the court the applicant was made “aware of risks which were far more serious than those she wishes to complain she was not warned of – life threatening risks of deep vein thrombosis, pulmonary embolism, cardiac arrhythmia, heart attack, stroke, massive infection, blood clot, lung collapse etc and yet she went ahead with the operation”.^[63]

“Material fact point”:

43. [43]
    The respondent “concedes” that receipt of Professor Marshall’s report being received after her claim was filed “is not a barrier to the applicant relying upon it as a material fact” but Professor Marshall’s report does not advance the applicant’s case as neither the “failure to prescribe antibiotics (or) failure to warn – material fact point” is supported by the evidence that she was in fact not warned about the risks to which Professor Marshall refers or not prescribed the antibiotics to which he also refers or at best for the applicant “cannot now say whether or not she was warned of these things”^[64].

Prejudice point:

44. [44]
    The respondent submits essentially that she “has shown actual prejudice” of the “type of prejudice discussed in Taylor^[65]” and refers to a number of passages of the hearing transcript wherein the applicant herself had little or no “recollection” of various facts and postulates that the respondent would therefore be “at an unfair disadvantage” in being required to defend any proceeding after the lengthy period of time which has elapsed. On this basis alone the application should be dismissed.

45. [45]
    Ultimately the respondent submits that she has established that the application should be dismissed on the “three bases” discussed in paragraphs [40] to [43] above but even if the court is satisfied that the applicant has established those matters set out in s 31(2)(a) and (b), it should not exercise its discretion to grant the leave sought on the grounds of that the respondent is prejudiced in being able to defend the claim.

Findings and Conclusion:

46. [46]
    On a consideration of the evidence before the court and the submissions made I make the following findings in this application:

1. I am not satisfied that the applicant has established the two limbs of s 31(2) of the LAA viz., that “a material fact of a decisive character relating to the right of action was not within (her) means of knowledge” until after the “critical date” i.e., “11 March 2009”; nor “that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation” for the following reasons:

1. (a)
   The applicant relies upon Professor Marshall’s report of “5 May 2010”, received by her solicitors on “27 May 2010” which, it is submitted, provides the “material fact” evidence which did not come to her attention before that time and in respect of which she had “taken all reasonable steps to find out the fact before that time”, but it seems to me and I so find that the evidence provided by Professor Marshall does not contain or reveal any “material fact of a decisive character” of which the applicant was not aware before the “11 March 2009” and indeed from the evidence referred to herein the applicant was aware of all of those facts at or before the time of her surgery in December 2005;

2. (b)
   The evidence is that the applicant:

1. (i)
   Was given information by or on behalf of the respondent about the proposed operation including “pamphlets” and the “website” reference approximately two months before the consultation with the respondent on 6 October 2005 and four months before the operation on 6 December 2005;

2. (ii)
   Was warned about loss of “sensitivity in your (her) nipples”, that she “might not be able to breast feed; risk of infection; scarring; redness, tenderness, swelling, offensive discharge from the suture line; that she might have to have antibiotics (for serious infection); that the surgical wound during the healing phase may separate or heal slowly…; knew before the operation that very serious complications could arise from the operations…”; and

3. (iii)
   Was prescribed antibiotics by the respondent for the infection which occurred.

All of the above matters are addressed by Professor Marshall in his report as information which a person in the applicant’s position ought to have received before operation and the evidence before the court reveals that the applicant was so informed of them. The question of whether an applicant has “taken all reasonable steps to find out the fact(s) before (the “critical date”) became a non-issue if all material facts are known to an applicant before that time.

2. I find further that for the above reasons there is no evidence to establish the applicant’s right of action in the first place based upon the respondent’s alleged “failure to prescribe antibiotics” of which there is clear evidence to the contrary and the applicant’s recollection of whether the respondent prescribed antibiotics for her on the 15 December 2005 is equivocal at best in that she “can’t recall one way or another.”^[66]

3. I find further that the applicant has failed to establish her right of action based upon the respondent’s alleged “failure to warn” obligations for the reasons set out in (b)(ii) above in that she was warned of the various potential “risks” (some more acute than actually occurred) inherent in such an operation but elected to proceed with the operation in any event;

4. In respect of the “causation” point being the applicant’s obligation to establish to the court that “had proper warnings been given she would not have proceeded with the operation, that is she needs to prove that the failure to warn caused her harm”,^[67] if I had found that the respondent had failed to warn the applicant of the risks of injury eventuating (which I have found to the contrary) and which the applicant in fact suffered, I would have been satisfied that the applicant had established “a prima facie case of causation” on the principles discussed in the judgment of Basten JA in Elbourne v Gibbs^[68] particularly at paragraph [78] thereof notwithstanding the respondent’s submissions on point including the discussion in the text at Chapter 10, Australian Medical Liability, Madden and McIlwraith, 2008. It seems to me that there is a marked distinction (and more likely to be accepted) between a parent giving evidence of what he/she would have done to avoid injury to a child if warned of a particular risk of treatment compared with the effect “a recommendation or suggestion” of “a spouse, relative or friend” may have on an applicant’s decision as posed by the authors at Chapter 10 of their text.

Prejudice Point:

47. [47]
    In light of my findings above it is unnecessary for me to make a formal finding on the “prejudice point” in this application although I note that the Court of Appeal made an adverse finding against the plaintiff (respondent to the appeal) in the matter of Hertess v Adams^[69] on the issue of prejudice occasioned to Dr Hertess in that claim. In that matter the Court found that “the primary Judge looked impermissibly to the comparison of the prejudice which was likely at the time of the application to that which would have existed in any event had the application been made within the limitation period^[70] whereas Brisbane South makes it plain that the existence and extent of any prejudice suffered by the applicant (Dr Hertess) must be assessed as at the date of the application.”^[71] Further to this there was the “onus of proof” issue in the exercise of a court’s discretion to grant an extension of time which must rest with an applicant to discharge not a respondent. Muir JA set out at paragraphs [14] and following of his judgment a summary of the principles on point established in the Brisbane South case, particularly at paragraph [16] quoting McHugh J who “explained the rationale underlying limitations statutes and the bearing of that rationale and the existence of an expired limitation period on the exercise of a discretion under 31(2).”^[72] Muir JA identified the absence of co-operation by the nurse Ms Diversi as constituting “actual prejudice” to Dr Hertess, and the applicant for an extension of time in that case (Adams) had not discharged her onus to invoke the court’s discretion in her favour. Notwithstanding that decision, the circumstances of the instant application are different and although Ms Diversi may prefer “not to be involved” (which is hardly a vehement statement of reluctance to become involved) in any potential claim as she has expressed in other matters I would have exercised my discretion in this applicant’s favour to extend the limitation period in that in my view the respondent would not be prejudiced in being able to have a “fair trial” of the issues to be debated, if the applicant had satisfied s 31(2) of the LAA for the following reasons:

1. (a)
   although over 4 years elapsed between the surgery complained of and the issue of proceedings and it is now approximately 6 years since surgery, the respondent has all of her surgery notes of the consultations and advice; is able to give evidence thereof and of her general practice in performing such operations;

2. (b)
   there is no evidence before the court that witnesses are not available (albeit expressing a preference not to be involved) to be called; and

3. (c)
   the time frame in this matter is substantially less than in the Brisbane South case where it was found for that reason there was “actual prejudice” to the defendant requiring the court’s discretion to be exercised against that applicant.

For these reasons I find that there could be a “fair trial” of the issues but the applicant has not discharged her onus under s 31(2) of the LAA.

Costs:

48. [48]
    In relation to the question of costs, the general rule under r.681 UCPR is that the costs of a proceeding, 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 of this application, I will allow 28 days from the date of this judgment to provide to the court written submissions as to the appropriate costs order to be made herein.

Orders:

49. [49]
    My orders in this matter are:

1. (a)
   The application is dismissed;

2. (b)
   The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.