DISTRICT COURT OF QUEENSLAND

1. [1]
   Julia Kay Wolverson (“the applicant”) brings applications under s 31 of the Limitations of Actions Act 1974 (Qld) “the Act” for orders extending the limitation periods relating to her claims for damages against the respondents in two actions.

2. [2]
   The defendant in the first action, Dr Todman, is a neurologist who treated the applicant in the period 1991 to April 2009.  The applicant claims damages for negligence and/or breach of contract by Dr Todman in misdiagnosing the applicant’s condition as multiple sclerosis, failing to diagnose a Chiari Type 1 Malformation and failing to appropriately treat the applicant.

3. [3]
   The defendants in the second action are four radiologists and the company by whom they were employed (“the radiologists”). The applicant claims damages for negligence and/or breach of contract in failing to diagnosis a Chiari Type 1 Malformation apparent on MRI scans.

The factual background

4. [4]
   The applicant was seen by Dr Todman from 1991.  She alleges Dr Todman diagnosed multiple sclerosis on “definite clinical grounds” in 1994.  A review of the medical files does not appear to support the applicant’s allegation in this respect.  Rather, the records indicate that Dr Todman may have settled on a diagnosis of multiple sclerosis in about 2004 and had definitely made that diagnosis by early 2005.  In reaching and maintaining this diagnosis of multiple sclerosis Dr Todman had access to the following MRI scans carried out by the defendants in the second action:

• 16 May 2002 by Dr O'Connell (third defendant)
• 21 June 2004 by Dr Lisle (first defendant)
• 30 May 2006 by Dr Hooper (second defendant)
• 17 September 2007 by Dr McGuire (fourth defendant)

5. [5]
   Expert medical evidence advanced by the applicant is to the effect that a Chiari Type 1 Malformation was apparent on each of the MRI images and the failure by each radiologist to identify that presence constituted a failure by each of them to meet an appropriate standard of care. In the opinion of a neurologist, Dr Mellick, the diagnosis of multiple sclerosis made by Dr Todman was not made on the basis of adequate evidence and failed to meet an appropriate standard of care.  Dr Todman failed to diagnose the Chiari Malformation.

6. [6]
   These failures are said to have resulted in the applicant suffering symptoms that could have been successfully treated had she been properly diagnosed.

7. [7]
   The applicant remained under Dr Todman’s care until 2009. Upon a further MRI being conducted in April 2009 by Dr Kua, a radiologist, he raised the possibility of a Chiari malformation. The applicant sought the opinion of other specialists and a neurosurgeon, Dr Campbell, advised that she did have a Chiari type 1 malformation and required brain surgery. On 26 June 2009 the applicant underwent a craniotomy and brain stem decompression.

8. [8]
   By March 2010 the applicant was of the view that “a lot of her symptoms had resolved since surgery”.^[1]The evidence suggests that medical opinion to that point of time did not anticipate that the surgery would “reverse any of her existing symptoms”.^[2]

The time limitation

9. [9]
   An action for damages must be commenced within three years of the date on which the cause of action arose. A cause of action in tort is only complete when appreciable (other than purely minimal) damage occurs. The limitation period runs from that time whether or not the applicant was aware damage had occurred.^[3]

10. [10]
    In respect of Dr Todman, on the applicant’s case appreciable damage from failure to diagnose and treat Chiari Type 1 Malformation must have arisen by late 2005.  The three year limitation period would therefore have elapsed by the end of 2008.  The claim against Dr Todman was filed on 27 May 2010.

11. [11]
    Appreciable damage arising from the alleged negligence or breach of duty of the radiologists must have arisen by the end of 2007 at the very latest. The claim against the radiologists was filed on 31 July 2013.

12. [12]
    As both claims were filed out of time the applicant now seeks extensions to proceed with the actions. In order to succeed on an application to have the limitation period extended the applicant must show that “a material fact of a decisive character” relating to the right of action was not within her means of knowledge until a date after 27 May 2009 in respect of the action against Dr Todman, or after 31 July 2012 in respect of the action against the radiologists.^[4]In addition the applicant must establish a worthwhile cause of action exists.^[5]Once those matters have been shown the court may exercise a discretion to extend the limitation period for 12 months from when the material fact was within the applicant’s means of knowledge.  In exercising that discretion the court must have regard to whether an extension would result in significant prejudice to a defendant.  The applicant bears the onus on this application.

Order of District Court

13. [13]
    On 27 May 2010 the applicant was granted, by consent, leave of the District Court to commence the proceeding against Dr Todman subject to conditions.

14. [14]
    The order of Judge Clare SC is in the following terms:

15. [15]
    The applicant now applies to have the time to file allowed by that order extended to the date of this application.

16. [16]
    The respondent, Dr Todman, has brought a cross-application under s 280 of the Uniform Civil Procedure Rulesfor the proceedings to be dismissed for non-compliance with the order of Judge Clare SC.

The respondent’s submissions

17. [17]
    Four arguments were advanced on behalf of the respondents in response to the applications. First, the available evidence is insufficient to establish a right of action. Second, there is insufficient evidence to establish a material fact of a decisive character. Third, the material facts relied upon were within in the applicant’s knowledge, or means of knowledge, prior to the relevant dates. Fourth, the defendants will suffer prejudice if the application is allowed. A further argument is advanced on behalf of Dr Todman that the application should be dismissed for failure to comply with the order of Judge Clare SC of 27 May 2010.

The statutory provisions

18. [18]
    As discussed above, Part 3 of the Actprovides some relaxation of the statutory limitation of three years in actions for damages for personal injury due to negligence.

19. [19]
    Section 31(2) provides:

20. [20]
    Section 30(1) defines a number of concepts employed in s 31(2). It provides:

21. [21]
    The term “appropriate advice”, when used in relation to facts, is defined as meaning “the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”^[6]

A right of action

22. [22]
    On an application for extension of time under the Act it must be shown under s 31(2)(b) that there is “evidence to establish the right of action”.  The onus an applicant bears under that section was explained by Macrossan CJ in Wood v Glaxo Australia Pty Ltdas follows:

“… 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.”^[7]

23. [23]
    The test is not a demanding one. A court is not weighing all the available evidence. It is enough for there to be evidence available which, on the assumption it is unopposed by other evidence, is sufficient to prove negligence or breach of contract. Relevantly in this matter the applicant must show there is evidence available to prove causation of damage.

24. [24]
    Each of the defendants owed a duty to the applicant to correctly diagnose her condition. There is evidence capable of establishing that each defendant failed to diagnose a Chiari Type 1 Malformation which was apparent on MRI scans. As was conceded by Mr Diehm, there is evidence which if unchallenged at trial would result in a conclusion of breach of duty by Dr Todman and Dr Hooper.  The same is true in respect of each of the radiologists.  At issue is whether the breach of duty, if proven, can be shown to have caused injury to the applicant.  Was damage suffered by the applicant from at least 2002 due to symptoms arising from the undiagnosed Chiari Type 1 Malformation present in her brain and apparent on MRI scans?  Also at issue is whether those symptoms could have been alleviated by treatment if the condition was diagnosed earlier or whether, in the period to 2009, it was foreseeable the symptoms could be so alleviated.

25. [25]
    The applicant’s identification of the evidence said to establish causation of damage has varied over time.

26. [26]
    In the Statement of Claim in the action against Dr Todman, the primary head of injury arising from the defendant’s negligence is said to be the applicant’s continued experiencing of “symptoms for many years that could have been successfully treated and eliminated had she been properly diagnosed.”^[8]

27. [27]
    The applicant’s outline of submissions points to Dr Mellick’s opinion as connecting the breaches of duty by Dr Todman and the radiologist to the injury.^[9]The submission reads:

“… without expert advice linking the improvement to the surgery, the improvement in her symptoms would not have been sufficient to justify the bringing of an action.”^[10]

28. [28]
    In oral argument Mr King-Scott for the applicant submitted that:

“… the combination of Dr Mellick’s opinion, the surgery of Dr Campbell, the improvements in symptoms following surgery, all point to negligence by Dr Todman resulting in damage, that damage being the untreated condition that she had for so many years, with symptoms which subsequently all could have been improved at an earlier time by an appropriate diagnosis and appropriate treatment.”^[11]

29. [29]
    Mr King-Scott referred to the report of Dr Mellick where the following opinion was expressed:

“… the application of a wrong diagnosis eliminates the possibility of treatment for symptoms and signs determined by the failure to apply a correct diagnosis.  In that sense, one or a number of conditions, potentially treatable, may result in symptoms for which treatment was not provided and secondary iatrogenic symptoms might be provoked by such admission or prolonged ‘uncertainty’.”^[12]

30. [30]
    A psychiatric condition is advanced as one possible consequence of the misdiagnosis.^[13]Dr Mellick acknowledged that a psychiatric diagnosis may co-exist with an organically based disorder arising from a Chiari Type 1 Malformation.^[14]However, the applicant primarily relies on the improvement in symptoms following the decompressive surgery to demonstrate that her pre-existing symptoms giving rise to pain and suffering were treatable.

31. [31]
    The pre-existing symptoms identified in medical records are reported by Dr Mellick as including impaired vision, left leg weakness, headache, nausea and vomiting.^[15]In her affidavit the applicant referred to the surgery having significantly improved many of her symptoms.  In her evidence the applicant said severe vertigo disappeared and her visual field expanded following surgery.

32. [32]
    Medical reports exhibited to the affidavit of Kristie Maree Geddes filed in the second action give the best indication of the pre-existing symptoms and the reported improvement in those symptoms. Prior to the surgery in May 2009 Dr Reed recorded the applicant as experiencing “episodic visual disturbance: pain behind the right eye: episodes of blacking out and falling: vomiting and vertigo and generally feeling shaky; and a persistent daily headache.”^[16]

33. [33]
    Following surgery in March 2010 Dr Campbell reported that the applicant “feels that a lot of her symptoms have resolved since surgery”.^[17]A neurosurgical registrar reported in July 2010 that the applicant had “more than one year without any blackouts following her Chiari decompression and her ophthalmology report showing no visible problems …”.^[18]

34. [34]
    A review on 20 January 2011 reported:

“… no episode of loss of consciousness since her surgery, but continues to get intermittent headaches now and then.  These are not particularly severe and she manages quite well.”^[19]

35. [35]
    Hence evidence is available to the applicant which, if left uncontradicted by other evidence, would be capable of establishing that a number of significant symptoms suffered by the applicant in the period up to April 2009 were significantly alleviated following her Chiari decompression surgery. However, while the timing of this improvement in symptoms following the surgery raises a suspicion of a causal link between the surgery and the improvement, the applicant’s medical experts do not put the existence of a link as being higher than a mere possibility.

36. [36]
    In a report of 4 November 2013, Dr Earwaker expressed the following opinion:

“If the claimant has sustained clinical improvement following her decompressive surgery it may well be the case that this has been impeded due to the delay in making the correct diagnosis.” (emphasis added)^[20]

37. [37]
    In a report dated 26 August 2013 Dr Ross Mellick referring to the Chiari Malformation said:

“That malformation may have also contributed to intermittent symptoms in the ensuing years.  However, the data at which the writer has seen is not sufficiently detailed to enable such a connection to be definitely made.  It is noted that reference has been made to an improvement in symptoms since the decompression was performed.  Some additional valuable information may following from a description of the specific symptoms which are reported to have improved since the decompression (again clinical detail is lacking)”.^[21](emphasis added)

At p 15 of the report Dr Mellick said:

“The application of a diagnosis with serious implications with relation to function and survival may result in secondary psychological problems because of the misdiagnosis.”  (emphasis added)^[22]

38. [38]
    At p 16 he said:

“Symptoms arising from brainstem pathology may mimic symptoms due to MS and it is accordingly possible that Ms Wolverson had suffered symptoms, perhaps intermittent, for a considerable period of time because of the Arnold Chiari 1 Malformation.  If that is so, an earlier diagnosis of decompression might have provided earlier benefit.” (emphasis added)^[23]

39. [39]
    He added:

“Additional clinical detail may establish a causal connection between the symptoms and signs which were misdiagnosed as MS and those which might be explained by the Arnold Chiari Malformation, migraine or a secondary psychological/psychiatric disorder.”  (emphasis added)^[24]

40. [40]
    This expert opinion evidence fails to prove that the Chiari Type 1 Malformation was more than a possible cause of the applicant’s symptoms. It follows that there is no more than a possibility that an earlier diagnosis and decompression would have provided relief of the applicant’s symptoms.

41. [41]
    The caution expressed in these opinions provided subsequent to the surgery is consistent with the expectations of the medical practitioners prior to the surgery.

42. [42]
    Following Dr Kua’s report of a possible Chiari diagnosis the applicant was first referred to Dr Stephen Read who opined:

“I have explained to her that [the Chiari malformation] is longstanding, does not appear to have changed significantly on imaging over the years, and is unlikely to have contributed to her symptoms.”^[25]

43. [43]
    Although the neurosurgeon, Dr Campbell, recommended surgery he did not anticipate it would relieve the pre-existing symptoms:

“Julia is now really focussed on having this treated surgically and although I am somewhat unconvinced that it explains most of her symptoms and I have advised Julia that decompression of this lesion would not reverse any of her existing symptoms, but would only promise prevention of progression of Chiari manifestations, she wishes to proceed.”^[26]

44. [44]
    In the supplementary report from Dr John Earwaker dated 4 November 2013 he expressed for the first time the opinion that if the applicant sustained clinical improvement following decompression surgery “it may well be the case that this has been impeded due to the delay in making the correct diagnosis”. This opinion may be read in light of his initial advice dated 23 July 2012 that the procedure “is done with a variety of results in my experience with no improvement in the patient’s symptoms”.^[27]

45. [45]
    None of these opinions support a conclusion that alleviation of the symptoms by surgery was reasonably foreseeable before the procedure occurred.

46. [46]
    The test in Wood v GlaxoAustralia Pty Ltd^[28]looks to the existence of evidence which it can reasonably be expected will be available at the trial.  The applicant bears the onus of proving causation of her injuries at trial.

47. [47]
    Merely proving at trial that the Chiari Type 1 Malformation was a possible cause of the applicant’s symptoms and that earlier diagnosis would have possibly allowed successful treatment of the symptoms would, even if unopposed by other evidence, not suffice to prove her case: see Reeves v Thomas Borthwick& Sons (Australia) Pty Ltd.^[29]

48. [48]
    It follows that on this basis alone the applications under s 31 of the Act in each action cannot succeed.

49. [49]
    I was referred by the applicant to Gaudry v Pacific Coal Pty Ltdin support of a submission that a court could be sufficiently satisfied on the evidence of Dr Mellick that the existence of a causal relationship was more probable than not.^[30]I have not found Gaudry’scase to be of assistance.  In that case there was competing medical testimony between on the one hand, a single doctor and on the other hand, a number of doctors.  The primary judge preferred the first doctor’s opinion.  It was not a case where the court acted contrary to all available medical opinion. For the reasons given above I am not persuaded that Dr Mellick’s opinion at any time rises above mere possibility.

50. [50]
    Mr Diehm argued in the alternative that even on the assumption that the surgery did contribute to an improvement in the applicant’s existing symptoms, his clients would not be liable based on an analogy with the decision of the High Court in Wallace v Kam.^[31]It was submitted that the successful alleviation of the symptoms by surgery was not foreseeable and accordingly there is no causal link between the alleged breach of duty by misdiagnosis and any injury arising from the symptoms suffered.  This follows from the fundamental principle that:

“… liability for breach of a duty to exercise reasonable care and skill to avoid foreseeable harm does not extend beyond harm that was foreseeable at the time of breach.”^[32]

51. [51]
    In Wallace v Kam the High Court held that failure of a doctor to warn of one unrealised risk could not give rise to liability for injury arising from a second risk the patient accepted.  Counsel here argued that following diagnosis of the Chiari Type 1 Malformation surgery was only recommended to arrest foreseeable future consequences.  It was unexpected and unforeseeable the surgery would alleviate the pre-existing symptoms.  It was argued that the respondents could not be held liable for any resulting delay in the applicant obtaining relief for the pre-existing symptoms.

52. [52]
    While this submission may have merit it is unnecessary that I determine the issue given my conclusion, for the reasons given above, that the applicant has not shown a right of action.

Further issues

53. [53]
    My finding that the applicant has failed to establish the existence of a right of action is of itself sufficient to determine the application. However, even if it be assumed that a right of action exists, the applicant must nevertheless satisfy the court as to the requirements of s 31(1)(a) in order to obtain an extension of time.  In case the matter proceeds elsewhere I will now address those further issues.

Material facts of a decisive character

54. [54]
    The applicant in argument before me submitted that the relevant material facts are first, the Chiari Type 1 Malformation diagnosis; second, the improvement following surgery; and third, Dr Mellick’s opinion.  It is submitted that without the expert advice of Dr Mellick, which is said to have “connected the breach of duty by Dr Todman and the radiologists to the damage”, the earlier facts do not assume a decisive character.^[33]The applicant submits that without the benefit of the expert opinion of Dr Mellick her knowledge of the diagnosis and subsequent improvement in the applicant’s symptoms was not sufficient to justify bringing an action.^[34]

55. [55]
    Contrary to what appeared in the applicant’s affidavit, she no longer relies on the opinion of Dr Earwaker as being a material fact of a decisive character.

56. [56]
    In order to obtain an extension under s 31 of the Act an applicant must:

“…show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it.”^[35]

57. [57]
    As was said in that judgement; this is what the application of the test of decisiveness comes down to.

58. [58]
    It may be accepted that if Ms Wolverson was unaware of proof of a causal link between the misdiagnosis and the alleviation of her symptoms after surgery, then a reasonable person appropriately advised would not have concluded there was a worthwhile action against any of the defendants on the facts then available.

59. [59]
    Given the advice the applicant received from Dr Read that the Chiari Malformation was unlikely to have contributed to her symptoms and from Dr Campbell that surgery would not relieve the pre-existing symptoms, the applicant could not have reasonably concluded, in the absence of further medical opinion, that proof of a causal link existed.

60. [60]
    I accept that without evidence of the causal link, which in these circumstances could only come from a medical specialist, the applicant lacked a fact necessary to form a conclusion that the action had reasonable prospects of success.

61. [61]
    Leaving aside for the moment whether any available opinion provides proof of a causal link, it can be confidently concluded that no medical advice establishing such link was available to the applicant before either November 2013 or January 2014 when the relevant reports of Dr Earwaker and Dr Mellick became available.

62. [62]
    Dr Mellick’s report was made personally available to the applicant on 8 January 2014. That report is dated 26 August 2013 but due to difficulties in funding the cost of the report it was not received by the applicant’s solicitors until 9 December 2013. Although an initial report was supplied by Dr Earwaker on 23 July 2012, it was only his supplementary report of 4 November 2013 which contained advice which might possibly be capable of supporting the existence of a causal link.

63. [63]
    It is not enough for the applicant to demonstrate that a material fact of a decisive nature was not known to her at a particular time. She must also show it was not within her means of knowledge at that time. I now turn to that issue.

Means of knowledge

64. [64]
    Section 30(1)(c) of the Act provides that a fact is not within a person’s means of knowledge if it was not known at the time and the person had taken all reasonable steps to find out the fact.

65. [65]
    The approach to be taken in applying this provision was explained by Keane JA in NF v State of Queensland:

“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 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 purposes of s 30(1)(c) of the Act.”^[36]

66. [66]
    It is submitted on behalf of the respondent radiologists that the applicant unreasonably delayed in obtaining the necessary specialist advice. More specifically, it is argued that regard should be had to what period of time might reasonably have been required for her solicitor to make necessary enquiries to ascertain the necessary facts to establish whether or not there exists a worth while cause of action.

67. [67]
    Reliance was placed upon the following comments of Thomas JA in Dick v University of Queensland:

“In cases where a potential claimant lacks a material fact, and reasonably needs the help of a solicitor or someone else to obtain it, some further time may reasonably elapse before it should be held that such facts are within the claimant’s means of knowledge.  Such time will include the time which would reasonably elapse if the claimant, taking all reasonable steps to do so, consults solicitors or other persons, and those solicitors or those other persons undertake the necessary enquiries to ascertain the necessary additional facts to show whether or not there is a worthwhile cause of action.”^[37]

68. [68]
    Solicitor for the applicant, Ms Given conceded in cross-examination that all the material briefed to Dr Earwaker in July 2012 for the purpose of obtaining an experts report was in her possession prior to 1 November 2010.^[38]The applicant had earlier obtained legal aid funding to obtain a radiologists report prior to 15 June 2010.  Given that Dr Earwaker provided a report within a month of the eventual request, it can be assumed it was within the applicant’s ability to obtain an expert radiologists report by the end of 2010. 

69. [69]
    The applicant applied to the Health Quality and Complaints Commission (HQCC) with a view to obtaining a conciliated outcome through that process. In July 2010 the original MRI scans were provided to the HQCC on an undertaking they be returned as soon as possible.^[39]No steps were taken to recover the MRI scans until November 2011.^[40]The HQCC advised on 27 July 2011 that the complaint had been closed.^[41]

70. [70]
    Ms Given gave the HQCC process as a reason for not obtaining of expert medical reports between November 2010 and July 2012 when Dr Earwaker’s report was sought. Also the unavailability of the loaned MRI scans is proffered as a reason for delay. However, for a fact to not be “within the means of knowledge of the applicant” within the meaning of the section the applicant must have taken all reasonable steps to find it out. To desist from pursuing the information because an alternative process was in progress falls short, in my view of engaging in all reasonable steps. So too, relinquishing access to and not actively pursuing recovery of the relevant medical records fell short of reasonable action to advance the applicant’s knowledge.

71. [71]
    The applicant was provided with the report of Dr Earwaker on 6 August 2012, some 17 months after it could reasonably have been obtained.^[42]

72. [72]
    Under cross-examination Ms Given conceded that the majority of the medical records briefed to Dr Mellick were in the solicitor’s possession by at least October 2010. The primary exceptions were the reports of Dr Earwaker and Dr Robert Campbell. The former, as discussed above, could have been obtained by the end of 2010. Although Dr Campbell was the applicant’s treating neurologist and his records were obtained on 22 August 2010, he was not contacted by the solicitors for a report until much later.^[43]The report eventually obtained from Dr Campbell was dated 14 June 2012. 

73. [73]
    The evidence supports a view that a report such as that received from Dr Mellick in August 2013 could reasonably have been obtained from him or another specialist neurologist in early 2011.

74. [74]
    It was held in Nielson v Peters Ship Repairs Pty Ltd^[44]that s 30(c)(i) of the Act should be read as referring to a persons actual knowledge not to any imputation to the person of the knowledge of his or her solicitor. 

75. [75]
    Where a person lacks actual knowledge but the fact is able to be found out, it is required under s 30(c)(ii) that all reasonable steps be taken to find out the fact. The reasonable steps must be steps appropriate in order that the actual person learns of the fact.^[45]

76. [76]
    In delivering one of the majority judgments in Nielson, Macrossan J (as he then was) said:

“The state of knowledge which is envisaged under that test includes the knowledge which the litigant would require if he took all reasonable steps to stay in touch with what was being ascertained by his agents in their enquiries and with their resulting discoveries.  The test seems to require that if the litigant acts through agents, as he mostly will, then attention will turn to the level of information that he would at least possess upon relevant matters if he had acted reasonably both in selecting suitable agents and in paying attention to their rate of progress and to what is being ascertained by them.”^[46]

77. [77]
    Another member of the majority in Neilsonexplained as follows:

“Placing the matter in the hands of apparently competent solicitors with adequate instructions including information relevant to the cause of action would ordinarily amount to taking all reasonable steps to ascertain the relevant facts, provided that the plaintiff did his best to ensure that the solicitors did not languish in the prosecution of the action.”^[47]

78. [78]
    The applicant in her testimony accepted that she was kept appraised generally as to the steps being taken by her solicitor. Importantly, Ms Given testified that she informed her client of the order made by Judge Clare SC on 27 May 2010.

79. [79]
    The delay in obtaining a relevant specialist’s report from early 2011, when that could reasonably have been achieved, was excessive and would have alerted a reasonable person to the need to ensure their solicitor did not tarry unnecessarily. To the extent this delay was due to the decision to pursue the alternative of conciliation through the HQCC, the applicant was fully informed and knowingly made that choice. The content of the order obtained from Judge Clare SC on 27 May 2010, which the applicant was informed of, would have alerted her to the fact that time was of the essence.

80. [80]
    While the test looks to the applicant’s actual state of knowledge and what could reasonably be expected from an actual person in the circumstances, I consider that the applicant in this case failed to take reasonable steps to ensure her action progressed in a timely way.

81. [81]
    Accordingly, in my view, had the applicant taken all reasonable steps the opinion of a specialist neurologist, whether Dr Mellick or another specialist, would have been able to be personally known to her by, at the latest, a date in early 2011. 

82. [82]
    In order to succeed on the application for extension of the limitation period in the action against the radiologist the applicant must show a material fact of a decisive character was not within her means of knowledge until a date after 31 July 2012. The conclusion I have reached means the applicant would on this basis not succeed in that action.

83. [83]
    These findings are not fatal to the claim against Dr Todman as the relevant date for that claim is 27 May 2009. However, there is a further hurdle that the applicant must cross in respect of that claim.

Failure to comply with Court order

84. [84]
    In respect of the action against Dr Todman the applicant requires leave to extend the time allowed under the order of Judge Clare SC dated 27 May 2010.

85. [85]
    Rule 280 of the UCPR empowers a court to dismiss the proceeding if the applicant has failed to comply with an order of the court within a stated time.

86. [86]
    Her Honour’s order required an application for an extension of time be filed within six months of receipt of an independent specialist’s report.

87. [87]
    It is argued on behalf of Dr Todman that the requirement to file the application within six months was activated by the obtaining of the report of Dr Earwaker on 3 August 2012.  It is submitted that constituted an “independent specialist’s report” and was “not irrelevant to the proceedings against Dr Todman”.  The respondent submits that report started time running under the order. 

88. [88]
    I cannot accept that submission. The order must be construed as referring to a relevant independent specialist’s report. Dr Earwaker’s report was not such a report.  It was not the report of a neurologist and it focused on the radiology results and not upon the liability of Dr Todman.

89. [89]
    The relevant specialist’s report for the purpose of gauging compliance with the order is that of Dr Mellick. That report was received by the applicant’s solicitors on 9 December 2013. This application was filed on 21 January 2014. Accordingly the applicant has complied with sub clause 2(a) of the Order.

90. [90]
    A further question arises as to whether failure to act in accordance with the undertaking in clause 3 of the Order, namely to make all reasonable and genuine attempts to procure the report within six months of the date of the Order, constitutes a ground under r 280(1)(b) for dismissal of the proceeding.

91. [91]
    The report of Dr Mellick was not obtained until 9 December 2013, or if one makes allowance for funding difficulties, 26 August 2013. The latter date is well over three years after the date of the order. For the reasons I have given above in respect of another issue, I am satisfied the applicant did not make all reasonable and genuine attempts to obtain the report within six months of the order.

92. [92]
    It is true that the order couches the obligation in terms of an undertaking given by the applicant, however I consider that failure to act in accordance with that undertaking constitutes a failure to comply with an order of the court within the meaning of r 280(1) of the UCPR.

93. [93]
    Accordingly, should it be necessary I would refuse the applicant leave to extend time under the order.

Prejudice

94. [94]
    The court retains the discretion to refuse an application if granting an extension would result in significant prejudice to a defendant. The applicant for the extension bears the onus of showing that a fair trial is possible. In light of the determinations I have already made, it is unnecessary to consider whether discretions should be exercised in respect of these applications.

Orders

95. [95]
    Both applications for an extension of the limitation period should be dismissed.

96. [96]
    I will hear the parties on the question of costs.