McDonald v Ramalingam[2003] QSC 280

SUPREME COURT OF QUEENSLAND

[1] McMURDO J:  The plaintiff commenced these proceedings by a claim issued on 7 December 2000, for damages for personal injuries and other loss from an unsuccessful sterilisation procedure performed on 19 April 1996.  The procedure was performed by the first and second defendants, as employees of the third defendant.  On 10 December 1997, the plaintiff became aware that she was pregnant.  For present purposes, the parties agree that the likely date of conception was, at the latest, 2 November 1997, and that any relevant cause of action accrued no later than that date.[1]  The relevant limitation period is three years.[2]  Accordingly, these proceedings were commenced a month or so out of time.

[2] Originally there were five defendants, but the plaintiff is no longer proceeding against the fourth and fifth defendants.  The first, second and third defendants pleaded that the proceedings were time barred in their Defence filed on 10 May 2001.  This is an application filed on 10 July 2003 for the extension of the limitation period pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).  The extension sought is to the date when the proceedings were commenced, i.e. 7 December 2000.  Upon this application, there is no issue in relation to s 31(2)(b): there is clearly evidence to establish the relevant right of action apart from the limitation period defence.  The contest is as to whether the plaintiff has demonstrated the matters required by s 31(2)(a), and if so, whether the court should make the order sought.

[3] The statement of claim filed at the commencement of this suit made two distinct allegations against the present respondents.  One was that they failed to sufficiently advise and warn of matters relevant to the prospects of failure of the then proposed sterilisation procedure.  The plaintiff pleaded that had she been properly advised she would not have undergone the surgery, but would have sought another form of sterilisation procedure or continued to use contraception.  The second complaint was that pleaded in these terms:

“12. Further or alternatively, the failure of the surgery and subsequent pregnancy was caused by the negligence or breach of contract of the first and/or second defendant and third defendant in the conduct of the surgery.”

The procedure involved the application of Filshie clips to the fallopian tubes, a procedure involving the use of a device called an applicator.  The proper application of the clip results in its being placed across the breadth of the tube, so that when it is locked into place it occludes the tubal lumen.  The particulars refer to various matters, each attributable to the present respondents, which resulted in the misapplication of one or both of the clips, with the consequent failure of the procedure.  The complaint pleaded in paragraph 12 involved a different cause of action from the failure to warn case, because those respective cases were not based upon identical facts and a cause of action is every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support her right to a judgment: De Innocentis v Brisbane City Council [2000] 2 Qd R 349 at 354.  In requiring the identification of a material fact relating to a right of action, as well as the appearance of evidence to establish that right of action, s 31 requires the identification of an alleged right of action.  For the purposes of these provisions, a right of action includes a reference to a cause of action: s 5(7).  The failure to warn case was abandoned upon the filing of the second further amended statement of claim on 4 March 2002.  The right of action presently in question is a claim for damages for negligence for the misapplication of the clips.[3]

[4] A few days after becoming aware of her pregnancy, on 17 December 1997 the plaintiff engaged solicitors to investigate a damages claim.  In February 1999 she attended upon Dr Keeping, obstetrician and gynaecologist.  He wrote a report dated 30 March 1999 addressed to the plaintiff’s former solicitors.  Apparently because of some issues relating to who should pay Dr Keeping for his report, the report was not seen by the plaintiff until it was sent to her present solicitors in June 1999.  Upon the information given to Dr Keeping, his opinion was that the plaintiff had no grounds “for a negligence or wrong procedure having been carried out” and that he could “see no reason for considering the action of the doctor or the hospital to be negligent”.  Despite this report, the plaintiff’s solicitors, acting upon instructions, issued a writ on 30 June 1999, which the plaintiff says was “to protect my interests in respect to any limitation period and to enable further investigation of my claim in relation to a failed sterilisation procedure”.[4]  That writ was never served.  The plaintiff saw Dr Ronald Adam, obstetrician and gynaecologist, on 9 September 1999.  He recommended that the plaintiff undergo a repeat laparoscopic sterilisation procedure which would also be likely to reveal evidence of any misapplication of the clips.  Dr Adam proposed to perform that procedure on 6 October 1999.  However, the plaintiff did not undergo the procedure.  Her evidence is that she could not afford it.  She was then a sole parent of five children, working shifts as a security officer at the Brisbane Airport.  She had only recently commenced that work, and was earning about $300 to $400 per week.  She swears in her affidavit sworn 18 August 2003 simply that she “could not afford to proceed to have surgery with Dr Ronald Adam”.  In her affidavit sworn 20 August 2003, she describes why she did not have Dr Adam perform an abdominal hysterectomy procedure.  I accept that she did not undergo any procedure by Dr Adam in late 1999 because she could not afford it.

[5] In January 2000 she made an appointment at the Royal Womens Hospital “to investigate the positioning of my clips” when she saw Dr Ooi and Dr Evans who advised her that she would require a hysterectomy.  On 28 June 2000 she underwent an abdominal total hysterectomy at the Royal Womens Hospital.  That procedure was performed by Dr Evans and the operative notes were completed by Dr Ooi.  On that date, Queensland Health Pathology and Scientific Services compiled a Histopathology report.  The report described the left fallopian tube as showing “no macroscopic evidence of the previous sterilisation” and as being “patent throughout its length”.  It described a foreign body giant cell reaction present in the subserosal tissue “consistent with the effects of a clip in the vicinity.”.  According to the report of Dr David Papadimos dated 16 April 2003, those findings within the Histopathology report “are consistent with minor injury to the outer (serosal) surface of the tube possibly resulting from the incorrect application of the clip to part of the tube, but are not consistent with the changes seen after correct application of a clip across the complete width of the tube” and that given the findings in that report “it is highly unlikely that a Filshie clip has been correctly applied to the left fallopian tube”.  None of the matters from the Histopathology report upon which Dr Papadimos expresses this opinion were actually known prior to 28 June 2000.  The plaintiff’s case is that these matters constitute the presently relevant “material facts of a decisive character”.  Their relevance is demonstrated by that opinion I have just mentioned, and also by that of Dr Korda who gave a report dated 19 August 2003 in which he said:

“I agree with Dr Papadimos’ opinion that the filshie clip has not been appropriately applied because the Histopathology report of the left fallopian tube demonstrated that it was patent throughout, and has not been transected, and there was no evidence of avascular necrosis at the site of the clip application, nor was there division of the Fallopian tube.  In view of the fact that there were foreign body giant cells on the subserosal tissue over the tube, Filshie clips have been applied to the Fallopian tube, but the tube was not thoroughly occluded  and crushed.”

The facts are conceded to be material facts relating to the right of action.  But there are issues as to whether they are of a decisive character and whether they were within the plaintiff’s means of knowledge.

[6] The first of those issues is determined according to s 30(1)(b).  Before these facts were known, the available information was that which was presented to Dr Keeping.  According to his report, that information did not provide a basis for this claim.  The significance of these facts is clear from the reports of Dr Papadimos and Dr Korda.  Save for one matter, this is a case where it plainly appears that the material facts were decisive.  That matter is that the proceedings were commenced at a time when neither the plaintiff nor her solicitors had received the Histopathology report and when the respondents suggest that the relevant facts were unknown.  If the plaintiff commenced these proceedings before she acquired the means of knowledge of the facts, that would not preclude an order of the kind sought: Opacic v Patane [1997] 1 Qd R 84.  The respondents’ point is that the commencement of the proceedings is said to demonstrate that when these proceedings were commenced, the plaintiff having taken appropriate advice already knew sufficient to show that this right of action would have a reasonable prospect of success.  There is a factual issue as to when the plaintiff or her solicitors acquired actual knowledge of the facts.  The plaintiff’s solicitor, Mr Honan, swore an affidavit which, at least on one view, suggests that the Histopathology report was in his hands before the proceedings were commenced.  The respondents’ affidavit demonstrates that it was not, which Mr Honan conceded in his oral evidence.  The plaintiff gave oral evidence that immediately after the procedure on 28 June 2000 she was informed by hospital staff of the relevant facts.  It does appear that photographs taken during that procedure were obtained by the plaintiff’s solicitors in about October, and certainly before the suit.  It is unnecessary to resolve this issue of when the facts were known.  Absent these facts, the plaintiff’s right of action did not have reasonable prospects, as appears from Dr Keeping’s report.  If the facts were not actually known, the commencement of the proceedings in December 2000 could be explained in a number of ways.  The plaintiff’s solicitors may have believed that there were reasonable prospects, although wrongly.  Alternatively they may have believed that proceedings should be commenced in the hope that further information might be revealed by the Histopathology report which they were then seeking.  As is now conceded, the proceedings were commenced out of time, but perhaps the solicitors took the view that time would expire on 10 December 2000, being three years from the date on which the plaintiff became aware of her pregnancy.  It is unnecessary to speculate further on that matter.  A comparison of the report of Dr Keeping with those of Dr Papadimos and Dr Korda plainly demonstrates the decisive character of these facts.

[7] On any view, the plaintiff did not know of the facts until on or after 28 June 2000, being a date after the commencement of the year preceding the expiration of the period of limitation.  But the respondents submit that the facts were within her means of knowledge before the commencement of that year, because those facts would have been found out by the plaintiff had she taken what the respondents submit would have been reasonable steps to find out those facts.[5]

[8] The respondents argue that the plaintiff knew in September 1999 that laparoscopic investigations might indicate whether or not there had been negligence in the performance of the surgery.  They submit that the plaintiff failed to take all reasonable steps to ascertain material facts because she failed to undergo this procedure.  This is a high demand of a potential litigant that she should undergo an operation in the hope of learning more about her case, which may or may not assist it.  Although the test of the reasonableness of the steps taken by the applicant is objective, it must be applied having regard to the background and situation of this plaintiff: Castlemaine Perkins Limited v McPhee (1979) Qd R 460.  After the plaintiff became aware of her pregnancy, she made a decision to terminate the pregnancy at 11 weeks.  Her evidence, presently unchallenged, is that she thereafter experienced severe pain and emotional upset and her relationship with her partner broke down in consequence of the termination of the pregnancy.  At that point she became a sole parent.  What was to be reasonably expected of her requires a consideration of the numerous demands upon her financial and personal  resources, and the criticism that she should have been undergoing some further operation without delay, to investigate the prospects of a legal suit, seems unduly harsh.  Dr Keeping’s report was discouraging of her litigation prospects, and did not suggest that she undergo any procedure.  It was not until September 1999 that she had medical advice which suggested that a procedure might reveal relevant facts.  In her financial situation it was not unreasonable for her then to seek help through the public health system.  Once that decision was made it was unlikely that she would  learn of these facts before the second anniversary of the accrual of her cause of action,[6] especially given the advice that she should undergo an abdominal hysterectomy.  I conclude that the plaintiff did take all reasonable steps to find out the facts before that time, so that the material facts of a decisive character were not within her means of knowledge until after that date.

[9] Accordingly I am satisfied of the matters which give rise to the discretion to make an order of this kind.  The plaintiff must then satisfy the court that grounds exist for exercising the discretion in her favour although there is an evidentiary onus on the respondents to raise any consideration telling against the exercise of the discretion: Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 at 547.  The respondents submit that they are relevantly prejudiced in that, quite apart from losing the benefit of a limitation defence, relevant witnesses do not have independent recollections and more generally, prejudice is to be assumed by reason of the passage of time.

[10] The respondents’ solicitor swears that he is informed by his clients, the first and second defendants, that neither has an independent recollection of the operation in question.  He is also informed by Dr Evans that “she now has only a vague recollection of the surgery and has refreshed her memory by reading the operative notes, although she was able to give some opinion about the matter”.  In Brisbane South Regional Health Authority v Taylor, it was held that the question of prejudice is not to be judged by comparing the defendants’ position at the time of the application with what their position would have been if the proceedings had been commenced shortly before the expiry of the limitation period.  Instead, prejudice must be assessed by enquiring “whether, by reason of the time that has elapsed, a fair trial is possible”.[7]  Nevertheless the prejudice must be what was described as “material”[8] or “significant”.[9]  It must be significant in that it has a real potential to affect a fair trial and it must be a prejudice which is due to the elapse of time.[10]  As Toohey and Gummow JJ said[11] “the real question is whether the delay has made the chances of a fair trial unlikely”.  Similarly, McHugh J[12] described the relevant prejudice as being “by reason of delay in commencing the action”.  In the present context, a discussion of what is a fair trial involves a consideration of what was possible absent any delay by the plaintiff.  The defendant doctors would not be expected to have had an independent recollection even at the earliest date upon which this claim might have been commenced, which is November 1997.    As to Dr Evans, again it is not surprising that she has but a “vague recollection” of this operation.  Detailed notes were made of that procedure and photographs were taken.  But, it is difficult to see that her recollection is any worse for any delay.  So far as her evidence is concerned, it does not seem that her recollection would be any better had these proceedings been commenced soon after the procedure which would be the subject of her evidence.  In my view there is no significant or material prejudice in relation to her evidence or that of the defendants.  Although I am mindful that prejudice may exist but not be recognisable[13] I am satisfied that there is no real possibility of prejudice in her present case.

[11] Mr Mullins submitted that “the prejudice must such that it would be unreasonable to exercise the discretion in favour of the plaintiff”.  I would not accept that submission.  Had I found that there was at least a real possibility of significant prejudice to a fair trial by reason of the plaintiff’s delay, I would not be satisfied that the discretion to extend the time limit should be exercised in the plaintiff’s favour. 

[12] I am satisfied that this is an appropriate case for the extension which is sought.  There will be an order in terms of the amended application.