Sharp v Hertess[2011] QDC 258

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The plaintiff, Kelli Peta Sharp (“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” (“LAA”).^[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 personal injuries and other loss “as a consequence of the negligence and/or breach of contract” of the respondent who at all material times “was a Plastic Surgeon carrying on a practice in Cairns” and who performed “bilateral breast augmentation” surgery on the applicant on “22 August 2003 at the Cairns Day Surgery”.^[3] In the normal course of events the applicant was therefore required to have commenced any proceeding against the respondent within three years of 22 August 2003 that is not later than 22 August 2006.^[4]

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 s30(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 s30(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 s31 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”;[5]

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.”^[6]

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.^[7]

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,^[8] 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.^[9]

14. [14]
    In Do Carmo v. Ford Excavations Pty Limited (No. 5)^[10] 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.”^[11]

15. [15]
    In Royal North Shore Hospital v. Henderson,^[12] 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.”^[13]

16. [16]
    Most recently, in NF v. State of Queensland^[14] 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.”[15]

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 September 2010 respectively; and

3. (c)
   The affidavit of Susan Sharp (applicant’s mother) filed 17 September 2010.

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

• “On 31 July 2003 I went to Cairns Plastic Surgery (“the Surgery”) and was seen by a nurse by the name of Diane Diversi. I told her that I would like to have breast augmentation surgery due to my significant asymmetrical breasts.”^[18]

• The applicant “was provided with various pieces of information on the surgery …..” and a copy of that information is exhibited to the applicant’s affidavit and marked “KSI”.^[19]

• “The nurse also discussed post-operative results, possible complications and post-operative care …” and the applicant “was told about the risks in general and to not expect perfection in shape and aesthetic appearance”. The applicant further states that “the nurse reassured me that post-surgery problems were extremely rare” (and) “that less than 5 per cent of patients required follow-up surgery or had complications.”^[20]

• “On 7 August 2003 I saw the first defendant (applicant) at the surgery to discuss my upcoming surgery.”^[21]

• The applicant further states that the respondent “went through the complications and risks and benefits of the surgery ….. did not mention the possibility of the implant falling out ….. just mentioned aesthetic imperfections and complications such as infection, swelling and scarring.”^[22]

• “I underwent a bilateral breast augmentation on 22 August 2003 at the Cairns day surgery.”^[23]

• The applicant says that she “was very anxious and experienced shock after my surgery ….. I was not ecstatic with the results and felt that the shape differed between my breasts ….. however ultimately they were the size in clothing and swimwear which is what I wanted.”^[24]

• At an appointment with the respondent “on 8 October 2003 ….. she explained that during the operation my smaller breast (right breast) was sitting higher than the other (and) … this required building an internal shelf to hold the implant lower on the right side. The left implant was placed in at the same time and apparently did not require the same procedure.”^[25] The applicant further says that she “was not told that I would require this procedure before my surgery nor were any complications or risks explained about this type of procedure.”

• There were “post-operation complications” in that “within 12 months after my operation I could feel the implant at the bottom of my left breast”. The applicant consulted the respondent again “on 3 May 2006” when the applicant was told that she “would need a second operation which would be free of charge”.

• “On 20 June 2006” the applicant “had surgery to remove and replace my left implants.”

• The applicant continued to be dissatisfied with the state of her left breast and has suffered ongoing emotional problems.

• She was prompted to seek legal advice after reading an article in the Cairns Post on “1 April 2009” following which her solicitors received a medical report from Professor Donald Marshall on “20 May 2010”.

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

• She agreed that after the first operation she was “satisfied with the correction to the asymmetry.”^[26]

• Agreed that she was advised before the operation that she “wouldn’t get a perfect symmetrical result.”^[27]

• Agreed that she “got a result” that she “regarded as being within the tolerance of what you’d been advised you could expect.”^[28]

• Stated that the movement “downwards” of the left breast “was very gradual and within 12 months it had got to a stage where I thought I have to do something about it.”^[29] The movement downwards “was about one and a half centimetres.”^[30]

• Agreed that she has subsequently seen a “Dr Hunter Fry” in Melbourne.^[31]

• Agreed that “in terms of aesthetic result” of her breasts “they’re within the range of what I was told to expect with imperfections ….. before the first operation.”^[32]

• Agreed that she was told by the nurse, Diane Diversi that she “would not get a perfect result there would be a range of expected results.”^[33]

• Agreed that the respondent said “much the same thing ….. in a very brief way.”^[34]

24. [24]
    The applicant was further cross-examined at some length on the contents of exhibit “KS1” referred to above which included all manner of topics and consequences relevant to “Breast Augmentation Surgery” and her further evidence included:

• That in respect of “asymmetry” although she was informed of such a “risk” she was told that such risks were “very minimal” ….. (and) … “that it was very unlikely that it was going to happen.”^[35]

• She acknowledged reading the paragraph saying “the shape and size of the breasts prior to surgery will influence both the recommended treatment and the final results. If the breasts are not the same size or shape before surgery it’s unlikely they’ll be completely symmetrical afterwards.”^[36]

• “The above point there was made in the majority of what was discussed mainly with Diane and was the only point really that I spoke to Dr Hertess on.”^[37]

• “There was no mention made to the fact that because I was asymmetric to start with it was a higher risk. I wasn’t aware of that.”^[38]

25. [25]
    The applicant further agreed in cross-examination that “this action is about the movement of the implant”^[39] and was referred to page 29 of exhibit KS1 and directed to that paragraph headed “Implant Displacement”. The applicant agreed that it is this phenomenon that she is “complaining about in this litigation …..” and that “the breast implant has displaced or migrated and that was accompanied by discomfort or distortion in the breast shape”.^[40]

26. [26]
    The applicant was further referred to page 32 of the exhibit under the heading “Unsatisfactory Result” and agreed that she read that paragraph but was told “that it was unlikely …..” and that she was aware of those risks because she had “read it in the material.”^[41]

27. [27]
    The applicant further stated that she was told by the respondent that “the complications were a minimal risk ….. complications and risk of surgery are minimal and rare is pretty much the essence of what she told me.”^[42]

Applicant’s Mother’s Evidence:

28. [28]
    The applicant’s mother’s evidence is contained in her affidavit sworn 17 September 2010 the thrust of which is that her family is a close knit and “stable family unit and are not a family to make rash decisions and that the applicant “is a sensible girl and does not do things on whim ….. she does not jump into things without first considering the consequences”.

Professor Marshall’s Report:

29. [29]
    In his report of 5 May 2010, relevant to this application Professor Marshall says:^[43]

“Examination of the pre-operative photographs reveals a marked degree of asymmetry. The post operative photographs suggest the result concerning the volume of the breasts is within the range one would expect from such surgery. The correction of breast asymmetry of this degree is a difficult undertaking and the results are far from perfect. There is an unpredictability about the reaction of the tissues to the insertion of prostheses particularly where one is attempting to correct asymmetry. There was a significant risk of an unsatisfactory outcome and this should have been explained to Miss Sharp.”

Professor Fry’s Report:

30. [30]
    In his report of 10 May 2010 Professor Fry says:^[44]

“The two breasts show a good match and are within the normal range of symmetry. They would be described as shapely and this is illustrated in the clinical photographs. Any difference in height is not obvious and the visual result would have to be classified as good.

The edge of the implant on the left side can be felt but it can also be felt on the right side, though less easily. There does not appear to be any obvious capsular fibrosis. There is not any visible feature in either of these breasts which is other than good.

There did not seem to be any particular tenderness on the left side. However, in view of the edge which is a little more palpable on that side, this could give her possibly some discomfort or pain to manipulation. She said that she thought that a nerve had been cut or similar at the second operation, but I found no obvious evidence of this.”

Respondent’s Evidence:

31. [31]
    The respondent relies upon the evidence of Penelope Anne Eden, Solicitor, contained in Ms Eden’s affidavits with exhibits filed on 9 August and 10 August 2010 respectively in the file of Livett v Hertess number 769 of 2010.

Applicant’s Submissions:

32. [32]
    The applicant’s submissions on the facts of this application include the following:

• “This case is really about emphasis ….. the emphasis that’s placed on the risks that were associated with this surgery.”^[45]
• “A material factor of a decisive character discovered by the plaintiff was that the evidence of Dr Marshall obtained on 20 May 2010 suggesting that the advice and treatment of the first defendant was below the standard to be expected of a competent and skilled surgeon.”
• “The plaintiff (applicant) was not advised that the implant might ‘fall out’” that is “became displaced”.^[46] “This was a risk associated with the surgery but any reasonable person in the position of the plaintiff (applicant) would have expected to be told. The plaintiff (applicant) was told that she should not expect perfection but that she might expect ‘small imperfections’.”^[47]

33. [33]
    The applicant relies upon Dr Marshall’s opinion referred to in paragraph [29] above in his statement that in this applicant’s case “there was a significant risk of an unsatisfactory outcome and this should have been explained to Ms Sharp.”^[48]

34. [34]
    The applicant submits that the respondent should have warned her that because she had “a marked degree of asymmetry here ….. This is not just a small degree this is marked and that’s going to be a problem in this surgery it’s going to be a difficult undertaking. The results may well be far from perfect and there’s an unpredictability about the reaction of the tissues given the extent of the asymmetry so you’ve got to understand that there is a significant risk of an unsatisfactory outcome here.”^[49]

35. [35]
    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) relying upon the authority of Elbourne v Gibbs^[50] 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.”

36. [36]
    On the question of “prejudice” the applicant submits that on the relevant authorities^[51] there is no prejudice to the respondent if the extension of time is granted as the respondent’s notes are available to her; evidence can be given of the respondent’s “usual practice” and the respondent “can adduce substantial evidence relevant to the issue of whether the appropriate advice was given.”^[52]

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 “three bases” namely:^[53]

“(a)the applicant does not show that there is evidence to support a case against the respondent (the evidence point);

(b) the applicant does not show that there is any material fact of a decisive character that came into the applicant’s possession late (the material fact point);

(c) the respondent is prejudiced by the delay so that there cannot be a fair trial of this matter (the prejudice point).”

39. [39]
    The respondent expands upon that basic submission which includes the following:

• The applicant’s case “is only a failure to warn case” and is “in relation to a breast enlargement performed on 22 August 2003;&rdquo^[54]
• The applicant’s claim is not that after the operation her breasts continued to be asymmetrical but the applicant’s action against the respondent is about “the fact that the implant in one of her breasts slipped in a period between six and twelve months after her first operation”^[55];
• Neither of the medical practitioners who have provided medical reports in this matter “criticises the performance of the surgery”;^[56]
• Neither doctor says that it was necessary to warn that an implant may become displaced and migrate after surgery;^[57]
• The applicant was warned about the complications and risks of breast augmentation including “implant displacement”;^[58]
• The applicant “was warned orally by the nurse Diversi and by Dr Hertess that she could not expect “a perfect result in terms of correction to her asymmetry”. Further to that there were warnings of “the risk of asymmetry from the written material with which she was provided”.^[59]

40. [40]
    Ultimately on the “evidence point” the respondent says that the applicant was given all the necessary warnings of the risks involved in the operation and there is no evidence to the contrary.

“Causation point”

41. [41]
    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 that the alleged failure to warn caused the harm alleged”.^[60] The respondent further submits that even if the affidavit of the applicant’s mother (Susan Sharp) is designed to address this issue the evidence contained therein “is not sufficient to prove this essential element of her case”^[61] The respondents further submission is that the authority cited by the applicant Elbourne v Gibbs to establish this aspect of her case “is not relevant here in any event for the risks which the applicant’s doctor says should have been warned of did not eventuate”.

“The material fact point”

42. [42]
    The respondent submits that the applicant’s statement that it was not “until I read the Cairns Post article on 1 April 2009” that she did not consider her “complications may have been due to negligence” could not be correct, as in the respondent’s submission the applicant “learned nothing about her own case from the article”. In any event it “seems to be conceded by the applicant” that it was the receipt of Professor’s Marshall’s report and opinion which was the “material fact” evidence upon which the applicant relies. Notwithstanding Professor Marshall’s report the respondent further submits that the applicant could not have discovered any “material fact of a decisive character” from this evidence because she was warned of the “four matters” to which Professor Marshall refers prior to the operation.^[62]

“Prejudice point”

43. [43]
    The respondent submits that “even if the applicant is taken to have satisfied the court of those matter set out in subparagraphs (a) and (b) of s 31(2)” of the LAA “the court should not exercise its discretion to grant leave to extend the limitation period because prejudice occasioned to Dr Hertess prevents the matter from being tried fairly”.^[63]

44. [44]
    The respondent relies upon the authority of “South Regional Health Authority v Taylor”^[64] that the evidence shows that the respondent has suffered “actual prejudice because she has no recollection without her notes; nearly seven years have elapsed between the surgery complained of and the issue of proceedings; it is unlikely that the trial of the matter will be heard within ten years of the events in question;”. The respondent further submits that she has suffered “actual prejudice” in that the nurse who made notes of her discussions with the applicant “no longer works for CPS and will not assist the defendant with this litigation.”^[65]

45. [45]
    Ultimately the respondent submits that the application should be dismissed because the applicant has failed to establish the “three bases” referred to in paragraph [38] above.

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. (a)
   I am not satisfied that the applicant has established the two limbs of s 31(2) of the LAA namely 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” that is “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. (i)
   the applicant has clearly stated “this case is really about .. the emphasis that’s placed on the risks that were associated with this surgery”. One of those risks being that the breast implant might become “displaced” and the respondent failed to warn the applicant that this could occur where the breasts are asymmetrical in the first place. However the evidence is that the applicant was warned of the potential complications and risks of the surgery and not to expect “perfection in shape and aesthetic appearance”. A “complication” did commence to occur “within six months” of the surgery in that the implant started to move downwards and this gradually deteriorated until corrective surgery was undertaken to remedy in a satisfactory way the displacement. The evidence is that the applicant was provided with information about “implant displacement” as being a risk of such surgery and in this instance the “displacement” actually occurred with further surgery being required to correct the problem to a state “within the range” of what the applicant expected.

2. (ii)
   I therefore 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 on the evidence before the court the applicant was given appropriate warnings and was aware of the potential “complications and risks” of the impending surgery at or before the time of that surgery in August 2003. In any event Dr Fry’s evidence is that the applicant’s “visual result would have to be classified as good.”

3. (iii)
   The applicant was given the information by the respondent’s nurse (Diversi) and/or the respondent herself about the proposed operation together with the detailed information booklet and other documentation contained in Exhibit “KS1” which contained all of the information to enable the applicant “to make a reasonably informed decision” about whether to undergo the surgery.

2. (b)
   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 warn” of which there is evidence to the contrary as set out above.

3. (c)
   With respect to 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” if I had found that the respondent had failed to warn the applicant of the risks of injury eventuating and which in fact occurred 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 particularly at paragraph 78 thereof notwithstanding the respondent’s submissions on point in that the evidence from the applicant’s mother indicates that the applicant is a cautious and “sensible” young woman and would carefully assess any advice she was given. In addition I am satisfied on my observation of the applicant that she is an honest and straightforward young woman who gave truthful and candid answers in cross-examination without any embellishment or exaggeration.

Prejudice Point:

47. [47]
    In the light of my findings above it is unnecessary for me to make a formal finding on the “prejudice point” in this application and although the Court of Appeal in the matter of Hertess v Adams [2011] QCA 73 when dealing with this issue in that claim made an adverse finding against the plaintiff, the Court of Appeal identified the fact that the nurse Ms Diversi being a reluctant witness thereby caused “actual prejudice” to the defendant (Dr Hertess), the absence of Ms Diversi’s cooperation is a further factor which the applicant has the onus of satisfying the court to exercise its discretion in her favour notwithstanding the uncertainty of the respondent being able to rely upon Ms Diversi’s evidence. Notwithstanding this difficulty for the respondent I would have exercised my discretion to extend the limitation period in this application on the principles set out in Taylor’s case for the following reasons:

1. (a)
   that although almost seven years elapsed between the surgery complained of and the issue of proceedings the point at issue in this application is of narrow compass;

2. (b)
   the respondent has all of her surgery notes of the consultations and advice and is able to give evidence thereof and of her general practice in performing such operations;

3. (c)
   Ms Diversi’s notes are also available and although she has indicated that she “would prefer not to be involved”, this does not seem to be a vehement statement of reluctance to attend but in the event could be required to attend and she is available to be called as required;

4. (d)
   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.