Byfield v Hertess[2011] QDC 256

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The plaintiff, Carol Anne Byfield (“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 s 31(2) of the Limitations of Actions Act 1974”.^[1]

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 “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 remove and replace implants and excision of cyst (on left fourth) finger” surgery on the applicant on “7 April 2006” 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 7 April 2006 that is not later than 7 April 2009.^[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:

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)
   The two affidavits with exhibits of Olamide Kowalik, solicitor filed 10 June 2010 and 5 August 2010 respectively.

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

23. [23]
    The applicant’s further evidence is that she “telephoned” and/or “attended” at the respondent’s surgery on a number of subsequent occasions over the following months in 2006 for a number of reasons including that she “was very concerned and very self conscious about the rippling in my breasts”.

24. [24]
    The applicant underwent two further surgical procedures on 24 November 2006 and 11 December 2008 which are not relevant to the application under consideration.

25. [25]
    The applicant “read the Cairns Post article on 1 April 2009” (and) “on or about 16 April 2009” sought legal advice and instructed solicitors in the matter.

26. [26]
    The applicant’s solicitors received a report from Professor Donald Marshall “on or about 13 May 2010”.

27. [27]
    The applicant was not cross-examined at the hearing.

Respondent’s Evidence

28. [28]
    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.

Applicant’s Submissions:-

29. [29]
    Excluding submissions as to the principles of law to be applied, the applicant’s submissions on the facts of this application include the following:

30. [30]
    At the hearing the applicant’s counsel confirmed that the respondent’s “points of objection to this application … are twofold. One is just the causation point and the second is the prejudice point.”^[26]

31. [31]
    The applicant further submits the following:

32. [32]
    On the “causation issue” the applicant essentially relies on the authority of Elbourne v Gibbs^[29] and in particular paragraph 78 thereof in the judgment of Basten JA who said on the topic “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.”

33. [33]
    The applicant further relies upon the evidence of Professor Marshall who says that the applicant was a person with “minimal body fat” and therefore “prone to adverse outcomes” to undergo “augmentation mammoplasty” and therefore the applicant should have been warned of the “increased risk of complications for which there is a duty of care for the surgeon to explain this to (the applicant) and advise her accordingly.”^[30] On this basis the applicant submits that “one can distil from the surrounding circumstances that a person such as Ms Byfield may not have taken such a high risk option.”^[31]

Respondent’s Submissions:-

34. [34]
    The respondent submits that “there are only two points” of objection to this application namely “an evidence point and a prejudice point”.^[32]

35. [35]
    The respondent’s further submissions include the following:-

36. [36]
    Ultimately the respondent submits that the application should be dismissed because:

“(a) There is no evidence to establish the right of action. The applicant does not supply any evidence at all showing that the alleged failure to warn caused her harm;

(b) Of the prejudice caused by the delay of the applicant in bringing her claim.”^[38]

Findings and Conclusion:-

37. [37]
    On a consideration of the evidence before the court and the submissions made I make the following findings in this application:-

1. (a)
   I am satisfied that the applicant has established the two limbs of s 31(2) of the LAA namely that “material factor of a decisive character relating to the right of action was not within (her) means of knowledge” until after the “critical date” that is “11 March 2009” and “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. (i)
   The applicant relies upon Professor Marshall’s report of “27 April 2010” received by her solicitors on “13 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.” I accept this submission and find that the “material fact of a decisive character” is the information contained in Professor Marshall’s report that the respondent should have warned the applicant who was a person with “minimal body fat”; that she was “prone to adverse outcomes” from an augmentation mammoplasty and that “there was a high risk of an unsatisfactory outcome” to her from such an operation. I find further that by the respondent failing to warn the applicant of these matters the advice and treatment the applicant received from the first defendant “was below the standard to be expected of a competent and skilled surgeon.”

2. (ii)
   I further find that the applicant’s conduct post the first operation was “reasonable” in continuing to consult with and be advised by the respondent in whom she was reasonably entitled to rely to attempt to remedy her problems. I am satisfied therefore that the applicant has satisfied the “reasonable steps” test required by s 30(1)(c)(ii) of the LAA.

3. (iii)
   I find further that for the above reasons “there is evidence to establish the applicant’s right of action apart from a defence founded on the expiration of a period of limitation”.

2. (b)
   In respect of the “causation” point based upon the applicant’s obligation to establish to the court that “had proper warnings been given she would not have gone ahead with the operation, that is, that the failure to warn caused her harm”^[39] I find that the applicant has suffered injury which was a “materialisation of… (the) potential risks of the procedure…” discussed in the judgment of Basten JA in Elbourne v Gibbs 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. For the above reason I therefore find that the applicant has established a “prima facie case of causation”.

3. (c)
   I find further that the fact the applicant was prepared to undergo further surgical procedures to correct the “adverse outcomes” from the first operation is not conclusive evidence or does not raise a “plausible contrary inference” that the applicant would have proceeded with the first operation in any event had she been warned of the “potential risks of the procedure” in her situation, as the “adverse outcome” had already eventuated and it is far more likely and reasonable to conclude that she wanted her problems addressed and rectified.

Prejudice Point:

38. [38]
    In respect of the “prejudice point” I am satisfied that in the exercise of my discretion it is reasonable to extend the limitation period on the principles set out in South Regional Health Authority v Taylor (above) for the following reasons:-

1. (i)
   Although just under four years elapsed between the surgery complained of and the issue of proceedings and it is now approximately five and half years since surgery the respondent has all of her surgery notes of the consultations with and advice to the applicant and is able to give evidence thereof and of her general practice in performing such operations;

2. (ii)
   In addition to the above with respect to this applicant the respondent performed two subsequent surgical procedures upon the applicant “on 24 November 2006” and “on 11 December 2008” so that it is more probable than not that the respondent would have a better recollection of this applicant’s situation than might otherwise be the case;

3. (iii)
   The Cairns Private Hospital records and notes are available;

4. (iv)
   There is no evidence before the court in this application that witnesses are not available or have expressed some vehement reluctance to give evidence if required; and

5. (v)
   The timeframe in this matter is substantially less than in the Brisbane South case where it was found that there was “actual prejudice” to the defendant thereby 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 in this proceeding.

Costs:

39. [39]
    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.

Orders:

40. [40]
    My orders in this matter are:-

1. (a)
   The application is granted that the time for commencement of the proceedings claiming damages for personal injuries by the applicant against the respondent be extended to 11 March 2010 pursuant to s 31(2) of the Limitations of Actions Act 1974.

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.