Quinn v State of Queensland (No 2)
[2016] QDC 156
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- Unreported Judgment
- Quinn v State of Queensland (No 2)[2016] QDC 156
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Quinn v State of Queensland (No 2)[2016] QDC 156
Quinn v State of Queensland (No 2)[2016] QDC 156
DISTRICT COURT OF QUEENSLAND
CITATION: | Quinn v State of Queensland (No. 2) [2016] QDC 156 |
PARTIES: | REBECCA QUINN (applicant) v STATE OF QUEENSLAND (respondent) |
FILE NO/S: | 4080/2015 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 1 April 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 March 2016 |
JUDGE: | Reid DCJ |
ORDER: |
|
CATCHWORDS: | MEDICAL NEGLIGENCE – EXTENSION OF LIMITATION PERIOD – Material facts of a decisive character – Advice of a medical practitioner as to original surgeon’s negligence provided only after limitation period had expired – Earlier advice indicated that there was no negligence Limitation of Actions Act 1974 (Qld) ss 30, 31 Personal Injuries Proceedings Act 2002 (Qld) s 43 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered Ervin v Brisbane North Regional Health Authority & Anor [1994] QCA 424, followed Randel v Brisbane City Council [1984] Qd. R 276, considered |
COUNSEL: | G. Mullins for the applicant D. Schneidewin for the respondent |
SOLICITORS: | Maurice Blackburn for the applicant Corrs Chambers Westgarth for the respondent |
Introduction
- [1]The applicant was diagnosed with bowel cancer and she underwent surgery at the Rockhampton Hospital on 15 and 17 November 2011. The surgery was performed by Dr Alkidady, an employee at that hospital. She then had further surgery on 20 March 2012, again performed by Dr Alkidady. She alleges she suffered significant complications from those operations arising from the doctor’s negligent performance of each of them. That view is supported by a report of Professor Morris of 10 May 2015.
- [2]Although the initial surgery was performed in November 2011 proceedings have not yet been commenced. The limitation period has long since passed. I have before me an application to extend the limitation period to 10 May 2016, being a date 12 months after the receipt of the medical report of Professor Morris. The applicant submits that the contents of Professor Morris’ report constitutes a material fact of a decisive character and that, up until then, she did not know that she had a cause of action against the respondent worth pursuing.
- [3]Given any extended limitation period is itself to expire in May 2016 the applicant seeks orders under s 43 for leave to start proceedings at this juncture. I have power to do so pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) on conditions that are necessary and appropriate.
- [4]The matter to be determined thus concerns the issue of the extension of the limitation period. If that is extended, as the applicant seeks, there is no reason not to make an order under s 43 PIPA and draft orders have been prepared to meet that eventuality. The respondent agrees that, if I were to extend the time, it would be appropriate to make orders under s 43 of PIPA.
The Statute
- [5]Section 31(2) of the Limitation of Actions Act 1974 (Qld) (“LAA”) provides:
“Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court-
- (a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
- (b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.”
- [6]Section 30 LAA provides that for the purposes of that section and, inter alia, s 31 material facts relating to a right of action include the fact of the occurrence of negligence or breach of duty, the fact that the negligence or breach of duty causes personal injury, the extent of such injury and the extent to which the personal injury is caused by the negligence or breach of duty. Section 30(1)(b) and (c) LAA are of particular relevance. They provide:
- (1)For the purposes of this section and sections 31, 32, 33 and 34 –
- (a)………….
- (b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taking the appropriate advise on those facts, would regard those facts as showing-
- (i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
- (ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
- (c)a fact is not within the means of knowledge of a person at a particular time if, but only if-
- (i)the person does not know the fact at that time; and
- (ii)as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.
- [7]Section 30 (2) LAA provides that in s 30, “appropriate advice in relation to facts means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts”.
Factual Background
- [8]The applicant, well within the limitation period, was clearly concerned about the outcome of the various surgeries. In June 2013, she made complaint to the Health Quality and Complaint Commission (“HQCC”). I accept she did so because of a conversation she had with a Dr Taylor at the Royal Brisbane & Women’s Hospital (“RBWH”). He had performed surgery to relieve her of the some of the problems following Dr Alkidady’s operations. She says that she was told by staff of HQCC that they had obtained advice from a colorectal surgeon that she had suffered unexpected complications from Dr Alkidady’s surgery and that there were “deficiencies in her care”. She then read a newspaper article concerning similar surgery performed by Dr Alkidady on another patient. That patient had died. She spoke to a member of the deceased’s family, who indicated that they had engaged a firm of solicitors, Gerard Malouf & Partners, who practiced in Sydney.
- [9]Subsequently, on 1 July 2013, she contacted them. She spoke to Christine Beshay, a solicitor and senior associate with that firm. As a result of her instructions Ms Beshay contacted a Sydney surgeon, Dr Greenberg. An email from Dr Greenberg to Ms Beshay on 22 August 2013 is Exhibit MCB1 to an affidavit of Margaret Brain filed in these proceedings. In that email he says in relation to Dr Alkidady’s operations, that “the surgeon has technically made mistakes” and that there was “very poor communication between the surgeon and the patient”. Dr Greenberg says “transacting a major vessel like this does not sound to be accepted practice”. He was not at that stage, however, prepared to give a definitive report, saying that he needed more information and in particular he asked for a copy of the applicant’s clinical records.
- [10]These were obtained from the Rockhampton Base Hospital by the applicant herself and provided to Ms Beshay in about October 2013, shortly after Dr Greenberg had requested them. Attached to an affidavit of the applicant filed in the proceedings is an email from her to Ms Beshay of 21 November 2013. It is part of Exhibit RQ3 to that affidavit. She wrote at 2.09pm on that date:
“I sent my records from the Rockhampton Base Hospital to you a few weeks ago now. I would like to confirm that your received them. Is there anything that I should be doing now?”
- [11]Ms Beshay replied on that same day:
“I have received them and given them to a doctor to see whether the case is worth proceeding with. At this stage I have not opened a file for you and will hold off doing so until the doctor says there is a case to be answered.”
- [12]There was in fact no evidence which disclosed the identity of any doctor to whom the documents might have been given and no report of any doctor obtained at that time.
- [13]I do not think that the fact that Ms Beshay may have made the statement, referred to in paragraph [11] hereof, to the applicant is of great importance in the disposition of the application before me. The important issue is that the applicant obtained the records, within the limitation period, and provided them to her solicitor. She was then told by the solicitor that they had been given to a doctor, and she no doubt accepted that as truthful.
- [14]In fact, they were provided to Dr Greenberg on 22 July 2014, 11 months after his email of 22 August 2013 requesting them and 6 months after she told the applicant they had been sent. It was however still within the limitation period. After he received them Dr Greenberg provided a report of 7 September 2014. That report is Exhibit MCB3 to Ms Brain’s affidavit. He concludes in that report that:
“I do not believe you would be likely to prove medical negligence.”
- [15]No doubt disappointed in the report the applicant provided detailed written comments to her solicitors on or about 23 September 2014, 14 days after she had been provided with a copy of the report. Her detailed comments are exhibited and marked MCB4 to the affidavit of Ms Brain.
- [16]After the provision of the applicant’s comments to Ms Beshay on 23 September 2014 little seems to have been done to protect or advance the applicant’s interests by Gerard Malouf & Partners. It was not until 22 April 2015, seven and a half months after receipt of the disappointing report of Dr Greenberg and after the expiry of the limitation period that Professor Morris was asked by Gerard Malouf & Partners to provide a report.
- [17]There had, however, been correspondence between Gerard Malouf & Partners and Corrs Chambers Westgarth, the solicitors for the respondent. This correspondence is set out in an affidavit of Kate Betts filed in proceedings 2070 of 2015. Ms Betts is a solicitor with the respondent’s solicitors.
- [18]On 13 February 2014, Gerard Malouf & Partners on behalf of the applicant wrote to the Rockhampton Hospital pursuant to s 9A of PIPA indicating that they had instructions to act on behalf of the applicant in a “Medical Negligence Claim arising out of surgery … on 15 November 2011 by Dr Alkidady”. The letter referred to the fact “we … are obtaining a report from a suitable expert to comment on negligence”.
- [19]Nothing then appears to have transpired until October 2014, just prior to the expiration of the limitation period. Ms Baqleh, another solicitor, was then handling the matter as Ms Beshay was on maternity leave. Ms Baqleh contacted the respondent’s current solicitors, who were acting for the Central Queensland Hospital & Health Service (CQHHS) in relation to the matter involving Dr Alkidady’s patient who had died and whose family referred the applicant to Gerard Malouf & Partners. The correspondence raised the possibility of a “settlement discussion” in relation to a “Medical Negligence Claim arising out of surgery … on 15 November 2011 by Dr Wasim Alkidady”.
- [20]A further s 9A PIPA notice was sent by Gerard Malouf & Partners to CQHHS on 3 November 2014. A copy was provided to the respondent’s current solicitors on that same day. On 7 November 2014, Ms Baqleh wrote to Queensland Government Insurance Fund seeking that body’s agreement to extend the limitation period. The letter was however not properly addressed and so was not received. A copy of it was sent to the respondent’s current solicitors who were, it seems, then acting for the Hospital.
- [21]On 19 November 2014, the respondent’s solicitors replied seeking an explanation for the applicant’s delay in serving the s 9A PIPA notice.
- [22]In response, Gerard Malouf & Partners, on 13 January 2015, sent a statutory declaration of the applicant which, though signed, is undated. I assume it was executed shortly before it was sent. It is exhibit RQ7 to the applicant’s affidavit. At [29] of her statutory declaration the applicant said:
“It took me a long time to finally be able to fully realize the deficiencies in treatment I had received and, once I learned of this other unfortunate woman who passed, I could truly appreciate what had happened to me. I could see the “big picture“ and I knew it was something that had to be investigated. The guilt I was experiencing over this poor woman who passed really became the “final straw” in my realizing something had to be done to prevent this from happening to anyone else”. (emphasis added)
- [23]In any case, despite negotiations no agreement was reached as to extending the limitation period. In this regard, it should be noted that such periods expired progressively from 15 November 2014 to 20 March 2015.
- [24]It is clear from the applicant’s oral evidence before me and from her affidavit that she had very significant post-surgical complications. In the first surgery she suffered significant blood loss and was admitted to the intensive care unit at the Rockhampton Base Hospital. She said Dr Alkidady had later told her that a staple gun used in the operation had not worked properly and had misfired, striking a vein in her sacral plexus. He told her she was “susceptible to bleeding” and had a “very unusual vein structure”. The planned colon resection was not able to be performed because of the significant bleeding.
- [25]On the occasion of the second surgery on 17 November the colon resection was completed and the applicant given a temporary ileostomy. She was discharged after recuperation, initially in the intensive care unit and then in a surgical ward.
- [26]She subsequently had significant pain in her sacrum and lower back and tingling in her legs. She was reassured by Dr Alkidady that these were not significant. On 25 January 2012, she had a gastrografin enema but quickly commenced vomiting and experienced severe abdominal pain. She was returned to hospital for a period.
- [27]From 10 February 2012, she said she was told by Dr Alkidady that a membrane had grown across the lumen of the colon and that she required readmission to deal with that. She had another colonoscopy on 9 March and on 20 March Dr Alkidady admitted her to hospital in order to close the ileostomy. She thereafter continued to experience pain and vomiting and was unable to pass stools. A CT scan of 24 March suggested a mechanical obstruction and she underwent further surgery the following day to recreate the ileostomy and ascertain the cause of her ongoing symptoms.
- [28]The applicant says that after that surgery Dr Alkidady told her she had adhesions in her small bowel and that her colon was fibrosed to her sacrum. He told her, she says, that they were not a concern but that the adhesions had caused kinking, causing a blockage of her colon.
- [29]After discharge she continued to be nauseous. After a further gastrografin enema performed by Dr Alkidady on 9 May 2012 he told her that he had “given up” and that she had a “collapsed bowel”.
- [30]She was then referred to the Royal Brisbane and Women’s Hospital (RBWH) where on 18 June she saw Dr David Taylor. Further investigative procedures were undertaken. Importantly, the applicant says Dr Taylor advised her the cause of her ongoing problem was an anastomatic stricture and that she required a further colon resection to remove the damaged tissue and an anastomosis. This was performed. He also told her that he doubted the staple gun could have been misfired as Dr Alkidady had told her. Dr Taylor also told her there was no such thing as a “collapsed bowel”, again something Dr Alkidady had told her she had.
- [31]Having observed her give evidence before me, I think it fair to say she was impressed by Dr Taylor’s treatment of her and by his explanations of her condition. At paragraph [29] of her affidavit filed in the application she said:
“I was advised by Dr Taylor that a vein had probably been cut incorrectly, preventing part of the colon from receiving blood. He also told me that my reproductive organs were adhered to by sacrum and that I was at increased risk of needing IVF to conceive.”
- [32]In the statutory declaration of January 2015, being Exhibit RQ7 to her affidavit, she also says:
“23. It wasn’t until the July of 2012, after I commenced treatment at RBWH, when I started to comprehend the massive deficiencies in the care and treatment I had received. Up until that time, I had been concentrating on healing and getting the best treatment I possibly could.
- It was after my redo colon resection (first surgery at the RBWH) in September that I realised how extensive my injuries were (inflammation causing my pain and damage to organs particularly reproductive organs and also the fact that I was having rectum removed which would eventually cause decreased bowel function) and how deficient my care was (the question of whether the staple gun misfired or whether the wrong vein was cut arose, or why I had by ileostomy being reversed when I had a stricture) I also started to wonder how serious it could be that on some occasions he never took my medical files before seeing him in the clinic.”
- [33]Her dissatisfaction with the treatment Dr Alkidady had undertaken clearly became apparent to her after she had seen Dr Taylor. This is evidenced from the document she prepared in September 2014 in response to the report of Dr Greenberg of 7 September 2014, to which I have already referred. It must be remembered that Dr Greenberg advised, in that report, that he did not think the applicant “would be likely to prove medical negligence against Dr Alkidady”. The applicant’s document prepared in response is Exhibit MCB4 to an affidavit of the applicant’s current solicitor, Margaret Brain, filed in the proceedings before me.
- [34]It is clear from that document that the applicant:
- (i)was of the belief that an unknown surgeon engaged by HQCC had been critical of Dr Alkidady’s decision to perform a laparoscopy, rather than another style or form of surgery because the cancerous blockage of her colon was close to her anus;
- (ii)believed Dr Alkidady’s explanation of how a vein had been cut was very doubtful and believed, instead, that he had cut the wrong vein as she had been told after the redo colon resection performed at RBWH;
- (iii)thought, as a result of what she had been told at RBWH, that Dr Alkidady apparently had significant complications of the first operation on 17 November, and so ought not himself have performed subsequent surgery;
- (iv)was of the view that the extent of her adhesions and probable impaired fertility would have been different but for Dr Alkidady’s “mistake”;
- (v)believed Dr Alkidady’s decision to close her ileostomy “must have been extremely poor judgement”;
- (vi)doubted Dr Alkidady’s explanation to her that she did not have a stricture and that the blockage, which continued after his surgery, was due only to “adhesions pulling and kinking the colon”;
- (vii)was “very angry” and felt the treatment was “unacceptable” but was, as might be expected, unsure of the extent or consequences of any malpractice;
- (viii)was dumbfounded when Dr Taylor told her that she had a stricture causing the ongoing blockage, contrary to what Dr Alkidady had told her. As a result an anterior resection and anastomosis close to her rectum was undertaken at RBWH on 7/9/2012;
- (ix)was told after this surgery that Dr Alkidady’s surgery involved “very poor surgical technique” and that the stricture was in fact an ischemic stricture caused from lack of blood flow associated with Dr Alkidady wrongly cutting a vein resulting in the death of a portion of the colonic tissue;
- (x)said it “became clear that our trust in Dr Alkidady had been misguided (sic) many wrong decisions had been made”;
- (xi)had significant symptomatic relief after Dr Taylor’s surgery but still suffered significant symptomology.
- [35]It is not surprising, given the applicant’s view, that after receiving Dr Greenberg’s report she wrote that detailed response I have referred to. Furthermore, it is not surprising that the applicant, after consulting with Ms Baqleh of her then solicitors and her then counsel Mr Wesling-Smith, determined to seek an opinion from a different expert. This consultation was on or about 15 October 2014, only about a month before the limitation period with respect to the 15 and 17 November surgery expired.
- [36]The respondent’s counsel contended before me that at that time, and before the receipt of the report of Professor Morris, the applicant knew all that she needed to institute proceedings. He submitted that the reason proceedings were not instituted or steps taken under the PIPA to effectively protect the applicant’s right of action, was because of the negligence of her then solicitors. He accepted that there was no criticism of the applicant herself who he accepted did all that was required of her by her then solicitors in a timely fashion.
- [37]There can, in my view, be little doubt that competent solicitors would have taken steps prior to 15 November 2014 to protect the applicant’s interests. To do so was not difficult. An application under s 43 of PIPA would have done so. So too would an application under s 59 of PIPA but to do so would have required a complying Part 1 notice of claim to have been given before 15 November. In the absence of any medical report supporting the claim this could have been somewhat problematic but it is unnecessary to consider that issue further.
- [38]In my view, the fact that competent solicitors might or should have protected the applicant’s interests does, however, not determine the matter. The question to be answered involves consideration of the relevant provisions of the LAA earlier set out. It is a more limited but perhaps more difficult question than whether competent solicitors would have taken steps to protect the applicant’s interests prior to 15 November 2014. My view is clearly that they should have done so, because there was a distinct possibility the applicant would eventually proceed with a claim arising out of Dr Alkidady’s treatment, and they ought to have appreciated the difficulties which could confront the applicant if the limitation period passed without, for example, an order under s 43 of PIPA. Those difficulties are apparent from the respondent’s attitude to this application. That finding does not however determine the application.
- [39]The question to be ultimately resolved is whether a material fact of a decisive character relating to the right of action was within the means of knowledge of the applicant until she received the report of Professor Morris. It can be accepted that the requirements of s 31(2)(b) of the LAA are met by the report of Professor Morris against the background of the other evidence before me (i.e. that his report and the applicant’s evidence constitute evidence to establish the right of action, apart from a limitation period defence).
- [40]Professor Morris describes the matter as “a complicated case”. He concludes:
- (1)The major haemorrhage which occurred during the operation of 15 November 2011 was due to failure in surgical technique, probably because the thickness of the tissue which Dr Alkidady was attempting to staple was too great for the stapling device being used.
- (2)That the applicant developed a stricture of the anterior resection anastomosis, identified at RBWH, due to technical failures in surgery resulting in inadequate blood supply.
- (3)There was a failure in surgical judgment (amounting to negligence) concerning the closure of the ileostomy by Dr Alkidady on 20 March 2012.
- (4)That Dr Alkidady’s treatment was not competent, when judged against competent professional practice in Australia.
Consideration & Submissions
- [41]Material facts relating to a right of action, having regard to s 30(1)(b) of the LAA, are “of a decisive character” only if a reasonable person, knowing those facts and having taken the appropriate advise of a competent lawyer and/or medical practitioner about those facts, would regard them as showing that an action would have reasonable prospects of success sufficient to justify bringing an action on the cause of action and that the person acting in their best interests ought to bring such an action. Under s 30(1)(c) LAA, a fact is not within the means of knowledge of a person only if the person does not know the fact and as far as is able to be found out, the person has taken all reasonable steps to find out that fact.
- [42]In this case those steps involved the applicant engaging apparently competent solicitors and having them obtain a report from an appropriate medical specialist, in this case Dr Greenberg. The applicant knew she had been told by Dr Taylor of significant criticism of Dr Alkidady’s treatment and obviously came to think that criticism was justified. She also knew, however, that Dr Greenberg, who provided an initially favourable view, had then seen the medical records from the hospital and provided a report adverse to her interests. She said, in her statutory declaration of January 2015 after receiving that report that she knew Dr Alkidady’s treatment “was something that had to be investigated”. I accept that to be a true statement of her then state of mind.
- [43]The respondent submits that well prior to the receipt of Professor Morris’ report in May 2015 the applicant had knowledge of sufficient facts to justify the bringing of an action arising from Dr Alkidady’s surgery. Counsel for the respondent referred to information which, he submitted, would have and did cause the applicant to be aware of the consequences of Dr Alkidady’s “botched” surgery. An example he provided in support of this was the content of the paragraphs of the applicant’s statutory declaration of January 2015, that I have earlier set out at paragraph [22] hereof.
- [44]I have no doubt the applicant was at least deeply suspicious of Dr Alkidady’s treatment as a result of her unfavourable outcome, what she had been told by HQCC and by Dr Taylor, and perhaps by others at RBWH, and because she knew of the death of another of Dr Alkidady’s patients.
- [45]The fact remains however that whatever her belief, even her strong belief, the report of Dr Greenberg of 7 September 2014 altered that position. She was then in a position where she would, if she pursued an action, not have been able to prove negligence – or at least have known that there was a very real risk she would not be able to do so.
- [46]That position was not altered until the receipt of the report of Professor Morris in 2015. The delay between September 2014 and May 2015 is significant, at least in circumstances where the limitation period expired progressively from 15 November 2014 to 20 March 2015, but the fault for that delay lay entirely with the applicant’s solicitors.
- [47]There is in this case no criticism of the conduct of the applicant herself. Importantly, it is not suggested that her failure to have more forcefully asked her then solicitors about their attempts to ascertain from a doctor information about the possible negligence of Dr Alkidady amounts to a failure to take reasonable steps to ascertain that fact. Such matters were the subject of discussion in Randel v Brisbane City Council [1984] Qd. R 276 at 280-281 and 285 where Thomas J said:
“Of course the knowledge of the solicitor is not imputed to the client for the purposes of s 30 of the Act (Neilson v Peters Ship Repair Pty. Ltd. [1983] 2 Qd.R. 419). As was observed in that case, “when an applicant has a solicitor acting for him, and a solicitor comes into possession of the material fact, a nice point will arise as to when that fact comes within the means of knowledge of the applicant. This will not always involve a question of fact, to be answered according to notions of what are in the circumstances ‘reasonable steps to ascertain the fact’.” An applicant can show that a material fact was not within his means of knowledge before a certain date only by complying with s. 30(d)(ii) which requires him to show that “so far as the fact is capable of being ascertained by him, he has before that time taken all reasonable steps to ascertain the fact”. That test is an objective one applied to a person with this applicant’s background and circumstances.”
- [48]As I have said it is not suggested the applicant is at all to blame for the solicitor’s conduct, nor that she ought have done more to ensure they obtained a report from Professor Morris at an earlier time. Rather, the respondent’s case is that, in this case, it was not necessary to have Professor Morris’ report before instituting proceedings, as she already well knew of all material facts to allow her, properly advised, to institute proceedings. I do not accept that to be so – primarily because of the decisive effect of Dr Greenberg’s earlier report which would have in my view caused any legal adviser to have told her the case did not have reasonable prospects of success or that she ought then in her own interests, bring an action against Dr Alkidady.
Comparable Case
- [49]A decision of the Court of Appeal in Ervin v Brisbane North Regional Health Authority & Anor [1994] QCA 424 (267/93) delivered 20 October 1994 is, in my view, of significant assistance in the resolution of this matter.
- [50]In 1985, the applicant in that case had a knee replacement operation in a hospital operated by the first respondent. The surgery was performed by the second respondent. She commenced an action arising from the surgery outside the limitation period against both respondents and subsequently sought an order extending that period. The applicant failed at first instance but successfully appealed.
- [51]The appellant’s submission was that only when she received a report of Dr Robuck of 20 February 1992, almost 7 years post-surgery, did she become aware of the following facts:
- (a)guidance instruments were available for the proper placing of components involved in the knee construction;
- (b)proper placement is critical to proper functioning;
- (c)femoral fixation pins should have been used;
- (d)the knee replacement was performed incompetently.
- [52]She had been earlier advised, in about June 1989, by a Sydney surgeon, Dr Sonnabend, who performed unrelated shoulder surgery to the appellant, that ongoing symptoms in her knee “were the result of the previous operation”. Later, probably in about July 1989, Dr Sonnabend told her the pain was caused by the prosthesis being out of alignment.
- [53]Subsequently, the appellant’s solicitors sought a report from Dr Sonnabend. In a letter to him they wrote:
“If you already hold the view that there was no incompetence on the part of Dr Sugars and we are wasting our time seeking this report from you, we would prefer it if you would simply advise us of this fact and return our cheque. We have no inclination to throw away $200 for no purpose at all.”
- [54]Dr Sonnabend wrote back on 26 October 1990:
“In your words, I believe you are ‘wasting your time seeking a report from me’. Please find your cheque enclosed.”
- [55]As Williams JA observed, this response was consistent both with the fact that Dr Sonnabend did not think there was medical negligence in the performing of the surgical operation, and with his being unwilling to have anything more to do with the matter.
- [56]I interpose that in this case there is no similar uncertainty. Dr Greenberg expressed the clear view that he believed the applicant would be unable to establish negligence against Dr Alkidady.
- [57]William JA accepted the respondents’ submission that all the appellant obtained on receipt of Dr Robuck’s report was the name of a doctor prepared to give evidence in Court as to the alleged medical negligence. He accepted that nothing which the appellant learned from Dr Robuck on receiving his report in February 1992 materially advanced her state of knowledge as to her cause of action. He concluded that “all material facts were known in mid-1989”. This was, of course, when Dr Sonnabend told the appellant that the pain was caused by the prosthesis being out of alignment.
- [58]The very significant similarities between the appellant’s position and that of the applicant before me can readily be seen.
- [59]The view of Williams JA did not, however, prevail. Pincus JA and Davies JA each delivered separate judgments allowing the appeal.
- [60]Pincus JA observed it was critical to the success of the appeal that a material fact of a decisive character relating to the right of action was not within the appellant’s means of knowledge until after 11 February 1992 (12 months prior to the plaint being issued). His Honour said in relation to the test under s 30 (1)(b) of the Limitation of Actions Act:
“To put this briefly in a way which emphasises one aspect of it, the question whether a fact is of decisive character… depends on whether it should have induced the applicant to sue.”
- [61]His Honour noted:
“What she did not know… was whether any qualified specialist was prepared to commit himself or herself to an opinion that the operation was done negligently and incompetently; she knew that Dr Sonnabend was not prepared to do so.”
- [62]I interpose that it appears to me that this was the precise difficulty facing the applicant before me after she received the report of Dr Greenberg. Indeed, her position is stronger. She was specifically aware that Dr Greenberg was of the view that she would be unable to establish negligence.
- [63]Pincus JA then referred to the appellant’s personal circumstances – her need for Legal Aid and the fact that solicitors were not themselves prepared to risk their own funds in prosecuting her claim. He said that without having a written favourable opinion from a suitable doctor “one cannot say that the appellant, taking her circumstances into account, ought to have brought an action before 11 February 1992”. His Honour continued:
“What the appellant did was to make some inquiries of Dr Sonnabend in 1987 and to inquire further of him in 1989. After being told by Dr Sonnabend that her knee symptoms were the result of the 1985 operation, she engaged solicitors. Subsequently… she relied on her solicitors, both to deal with Sonnaband – unsuccessfully … and, subsequently, to try to get a suitable opinion from another specialist, Dr Robuck. It seems to me that it was a reasonable course to engage solicitors to undertake these tasks; it will have been noted that she took this step promptly after Dr Sonnabend expressed the opinion that her knee trouble was the result of the operation. Thereafter the solicitors did not manage to move the claim along quickly, but it is not shown that the stage was ever reached at which, acting reasonably, the appellant ought to have sought other legal advice, or that in any other respect she failed to take all reasonable steps.”
- [64]Davies JA also allowed the appeal. His Honour referred to the evidence in the case given by the appellant that Dr Sonnabend had told her the pain was due to the prosthesis being “out of alignment” and that in her application for Legal Aid she said that Dr Sonnabend had told her the operation was “a botched job”. In relation to these matters his Honour said:
“Unexplained, the more likely interpretation is that Dr Sonnabend thought that the operation was performed negligently. But it is possible he was saying no more than that there was an error in its performance.”
- [65]His Honour continued:
“It follows from this, in my view, that the appellant did not then have, within her knowledge or means of knowledge, the fact that Dr Sugars was negligent. Indeed, the only opinion which she had received was to the contrary; that there had been an error in performing the operation, but that it had not been a negligent one. It also necessarily follows that that fact did not come within the means of knowledge of the appellant until she received Dr Roebuck’s report on 25 February 1992.”
- [66]In such circumstances the appellant’s appeal was allowed by the majority.
Conclusion
- [67]In my view that case bears remarkable similarities to the applicant’s. It is perhaps true that the applicant here was more clearly told of the view of Dr Taylor that Dr Alkidady had been negligent. But that view was expressly gainsaid by the written report of Dr Greenberg, who opined she would not be able to prove negligence. He did so after viewing the hospital records. As a result, and so within the limitation period, the applicant was disabused of the notion that Dr Alkidady was negligent. It is true that she doubted the wisdom of Dr Greenberg’s opinion, but, in my view, until she obtained the report of Professor Morris she was not in possession of material facts of a decisive character. In my view until receipt of that report it could not be said that she ought then have sued, to use the words of Pincus JA referred to in paragraph [60] hereof.
- [68]The respondent’s counsel raised, in his submissions, objections to such a finding in this case on the basis that to do so means, effectively, that the applicant is entirely protected by her solicitor’s negligence. That is so, in the particular circumstances of this case, but would not always, or even often, be the case. In this case there is no suggestion that the respondent is at all prejudiced in the way considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. This was expressly conceded in the respondent’s counsel’s submissions. Similarly, there is no suggestion the applicant herself was at all to blame for the situation. She engaged apparently competent solicitors, did all that was asked of her by them in a timely fashion and it had not reached the stage where a reasonable person in the position of the applicant would have sought advice elsewhere, terminated the engagement of her solicitors or herself been alerted to the apparent loss of her right of action. Those matters are particular features of this case which will in many cases not arise.
- [69]In the circumstances I find I am bound by the reasoning of the majority in Ervin v Brisbane North Regional Health Authority & Anor (supra) – and, in any case, am persuaded by their logic.
- [70]I therefore allow the application to extend the time. I will make orders as sought in paragraphs [11] – [13] of the applicant’s counsel’s submissions, unless the parties wish to be heard on the form of them.
- [71]I will hear argument as to costs.