Marshall v Minister of Education
[2004] QSC 135
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- Unreported Judgment
- Marshall v Minister of Education[2004] QSC 135
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Marshall v Minister of Education[2004] QSC 135
Marshall v Minister of Education[2004] QSC 135
SUPREME COURT OF QUEENSLAND
CITATION: | Marshall v Minister of Education [2004] QSC 135 |
PARTIES: | FARRON VANCE MARSHALL |
FILE NO/S: | 38 of 1996 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court, Cairns |
DELIVERED ON: | 6 May 2004 |
DELIVERED AT: | Cairns |
HEARING DATE: | 9 December 2003 |
JUDGE: | Jones J |
ORDER: | 1. The period of limitation in respect of the plaintiff’s claim for damages for personal injury arising from treatment whilst the plaintiff was a patient of The Mount Isa Base Hospital between 29 August 1990 and 2 November 1990, is extended for one year to 16 October 2004. 2. That the applicant have leave to file a further Amended Statement of Claim in terms of the draft Exhibit “Q” to the affidavit of Glenn Roy Moffatt filed 19 November 2003. 3. That the costs of and incidental to the application be costs in the cause. |
CATCHWORDS: | LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – Where applicant was injured when he slipped and fell on a concrete sporting court - Where applicant underwent a series of operations due to further medical complications - application to extend limitation period under s.31(2) Limitation of Actions Act 1974 (Qld) - whether material facts were within plaintiff's knowledge prior to expiration of limitation period - discussion of "material fact" within meaning of Limitation of Actions Act Limitation of Actions Act 1974 Clarke v Harpier Acoustics Pty Ltd Unreported BC 9102958 – 20 Sep 1991 distinguished Dick v The University of Queensland (2000) 2 QdR 476/485 cited Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234/256 applied Draney v Barry (1999) QCA 491 cited Eustace v State of Queensland (1999) QCA 502 distinguished Ford Excavations Pty Ltd v do Carmo [1981] 2 NSWLR 253 applied Neilson v Peters Ship Repair Ltd (1983) 2 QdR 419 capplied Pizer v Ansett Australia Limited (1998) QCA 298 distinguished Randel v Brisbane City Council (1984) 2 QdR 276 applied Thomas v State of Queensland (2001) QCA 336 considered |
COUNSEL: | Mr D K Dorney QC for the plaintiff Mr M E Eliadis for the first defendant No appearance by or on behalf of the second defendant |
SOLICITORS: | V R Moffat & Associates for the plaintiff Crown Solicitors for the first defendant |
- On 29 August 1990 the plaintiff was injured when he slipped whilst playing on a concrete multi-purpose sporting court at the Kakadoom State High School at Mount Isa. He was at the time 13 ½ years old having been born on 11 December 1976.
- The plaintiff suffered an injury to his upper right leg namely a slipped femoral capital epiphysis. He was treated at the Mount Isa General Hospital where he was hospitalised and then later underwent an open reduction and an initial fixation of the epiphysis. Complications occurred resulting in the need for further treatment. X-rays taken on 22 July 1991 showed a collapse of the right femoral head, presumably due to a vascular narcrosis. Further treatment was undertaken but he has been left with significant residual disabilities.
- In October 1991 the plaintiff suffered a similar slip in the femoral epiphysis in his left leg. This appears to have occurred without any initiating trauma and it suggests the plaintiff had some congenital predisposition to this type of event.
- The plaintiff first consulted his present solicitors on 10 November 1995 seeking advice on his prospects of claiming damages for his injuries.
- On 4 December 1996 the plaintiff initiated proceedings against the Minister for Education in the State of Queensland. By Statement of Claim delivered on 20 February 1997 the plaintiff alleged a breach of duty on the part of the defendants to the plaintiff by reason of the faulty design of the flooring of the sporting court it was in a non-safe condition and he alleged also negligence on the basis of a failure to warn and to supervise the students.[1] The defence simply denied any breach of duty.[2]
- The various procedural steps were thereafter undertaken to prepare the claim for trial. In the course of this activity medical reports were exchanged. In 1999 the plaintiff obtained reports from Dr Halyer of Mount Isa Hospital and from a consultant orthopaedic surgeon, Dr Iain Macfarlane.[3] Neither report raised any concern about the nature of the plaintiff’s initial treatment at the Mount Isa Hospital.
- The defendants arranged for the plaintiff to be examined by Dr David Morgan, orthopaedic surgeon. His first report[4] dated 22 November 2001 was received by the plaintiff’s solicitors in January 2002. The plaintiff’s solicitor, Mr. Glenn Moffat, says that he noted comments made in the report about the initial treatment. These comments included:-
“The operative notes are scant, but there is a mention of a fact that an open reduction and internal fixation was performed. It is also suggested in these notes that a manipulative reduction was performed prior to internal fixation. In either event, the manipulative reduction (either open or closed) of a slipped proximal femoral epiphysis is an extremely delicate manoeuvre and can jeopardise the blood supply to the capital epiphysis itself. In addition, great care must be exercised per operatively to avoid penetration of the capital epiphysis and its hyaline cartilage with the transfixion pins. Such penetration can give rise to chondrolysis or complete loss of cartilage on the femoral head with a similar dissolution of the chondral surface in the acetabulum. The avascular necrosis and/or of the chondrolysis which may ensue from these endeavours, can give rise to a complete destruction of the articulation with the premature onset of exceedingly severe degenerative change.”[5]
- When Mr Moffat read this report he drew an inference that the surgery performed on the plaintiff in the period immediately after the accident was “less then perfect” but formed the view that the plaintiff’s disabilities “were as a result of the natural history and progression of the injury that the plaintiff suffered in the accident on 29 August 1990”.[6]
- Nonetheless, there was a renewed interest in the hospital records, a copy of which was provided on 2 May 2002. In the meantime two further reports were received from Dr Morgan dated respectively 9 March 2002 and 25 March 2002.[7] Mr Moffat concluded from these reports that Dr Morgan “was describing what he would regard as the appropriate treatment of the plaintiff’s injuries in an ideal world and that by inference, he was saying because the plaintiff had not received this treatment, the plaintiff had suffered an increased disability over and above what he might have suffered if he had received perfect medical treatment.”[8]
- It was not until Mr Moffat received a further report from Dr Morgan in October 2003[9] that he understood the substance of Dr Morgan’s opinion to be that the plaintiff’s treatment at Mount Isa Hospital fell below the accepted standard.
- By the time Mr Moffat came to this realisation the period of limitation for the commencement of any claim against the Mount Isa Hospital or the practitioners involved in the plaintiff’s initial treatment had long since passed. The plaintiff attained his majority in 1994 and the normal period of limitation expired on 11 December 1997.
- Were the issue in this application dependant upon the facts known to Mr Moffat, I would find that from the time he received the reports of Dr Morgan prepared in March 2002 he was in a position where a reasonable person with that knowledge would have taken appropriate advice. A legal practitioner with some experience in personal injury litigation ought to have realised that the reports necessitated seeking clarification either from Dr Morgan or some other orthopaedist.
- But the first issue which arises is when did the plaintiff become aware of the facts and whether for the purpose of s 31 of the Limitation of Actions Act 1974 (“the Act”) a material fact of a decisive character was within his means of knowledge prior to the year before the filing of this application (i.e. before 19 November 2002). Mr Moffat in his affidavit swore that he did not bring the reports of Dr Morgan of March 2000 to the attention of the plaintiff nor until 16 October 2003 did he give him any advice about a claim based on allegations of negligent treatment.[10] That fact is consistent with what appears to have been Mr Moffat’s own understanding of the effect of Dr Morgan’s opinions.
- The plaintiff, in his oral evidence, did say that Mr Moffat from time to time showed him medical reports and discussed them with him. He said that he thought he was shown these reports but he was “not 100% sure” whether this was so. However, he did read everything that was sent to him.
- The plaintiff is a man of Aboriginal descent and of limited education. He was being asked to recall whether he had read reports which came into his solicitor’s possession some 18-20 months earlier. By this time his original action had been on foot for five years, during which time he had seen his solicitors four or five times each year. Undoubtedly in that time he would have read many documents and been asked to pay particular attention to those documents whose contents he was required to verify. The reports of Dr Morgan are couched in terms to be read by professional advisors. They describe the injury and its treatment which occurred 10 months earlier when the plaintiff was a 13 year old school boy. The details of how the injury occurred and of the treatment were canvassed in a number of medical reports obtained by the plaintiff’s solicitors before the receipt of Dr Morgan’s report. It is unrealistic to think that a person of the plaintiff’s capacity would be able to understand the reports, much less to distinguish between the respective contents of reports by different authors. I am satisfied that the plaintiff did not have the capacity to understand the nature of the opinion being expressed by Dr Morgan, particularly as his solicitor also failed to grasp its significance.
- To the extent that there is a conflict between the evidence of Mr Moffat and that of the plaintiff I accept Mr Moffat’s account. He said that he did not provide copies of the reports to the plaintiff because of his understanding that “there was nothing in them that necessitated getting instructions from the plaintiff”.[11]
- I am satisfied that the plaintiff was unaware of the fact of a medical opinion which would found a claim for damages for negligent treatment when he was a patient at Mount Isa Hospital. I find that his solicitors were in possession of information which might, at the very least, have caused them to seek “appropriate advice” as that term is understood for the purpose of s 30(1)(b) of the Act.
- This raises the question of whether the material fact of a decisive character must be known to the plaintiff personally or whether the solicitor’s knowledge of the material fact can be imputed to the plaintiff.
- This point was authoritatively determined in Neilson v Peters Ship Repair Ltd[12] and reinforced in the decision of Randel v Brisbane City Council[13] where the judgment of McPherson states:-
“Whether the solicitor’s omission to advise the plaintiff of this potential defendant involves a failure on the part of the plaintiff to take all reasonable steps to ascertain the material fact of identity depends in part upon whether the default of the solicitor is to be visited on the plaintiff. In Neilson v Peters Ship Repair Pty Ltd [1983] 2QdR 419 this Court held that the knowledge of the solicitor is not to be automatically imputed to a client seeking an extension of time under s 31. In that regard we declined to follow remarks to the contrary effect of Hutley JA in Ford Excavations Pty Ltd v do Carmo [1981] 2 NSWLR 253, 266-267. His Honour there makes it plain in an example given at p 267 of the report of that case that an extension of time would not be granted to a client who, knowing every material fact except the identity of the potential defendant, left it to his solicitor to discover that identity. With great respect, that, viewed as an abstract proposition, does not seem to me to be consistent with the provisions of s 30(d)(ii), which are directed to the reasonableness of the steps taken by the plaintiff himself to ascertain the relevant fact.” (Citations omitted)[14]
- Counsel for the respondent relied upon another decision of the Full Court, Clarke v Harpier Acoustics Pty Ltd[15] citing a passage from the judgment of Derrington J as follows:-
“The purpose of the legislation is to provide relief for parties who through no fault of their own or of their representatives are reasonably disabled or deterred from commencing an action within the statutory period by lack of knowledge of a decisive fact. The relief will be afforded in a suitable case even where the relevant knowledge or means of knowledge has existed prior to the effluxion of the limitation period if there were circumstances reasonably justifying the failure to commence the action in time. However relief will be refused where the real cause of the default was the failure of the party or his legal advisers to take proper action after the decisive fact came within their knowledge: Royal Northshore Hospital v Henderson (supra) at p 300.”[16]
This case concerned a claim for damages in respect of a work related injury occurring on 2 July 1985. By December 1986 the claimant had become permanently unemployed. He had received a medical opinion that his condition was permanent. There was no evidence contrary to this. There were reports to the effect that only time will tell whether there will be any improvement in the disability and a decision of the general medical board postponing a final review. The claimant’s application depended upon an acceptance that he maintained a belief that his condition might only be temporary and not therefore justifying a claim. The claimant did not adduce any evidence as to the advice he had received from his lawyers. The Full Court considering the particular facts of this case found that the claimant had not satisfied the onus that he was entitled to maintain the belief. The statement relied upon by the respondent before me concerned the state of the claimant’s personal knowledge of the facts rather than the solicitor’s knowledge which might be imputed to the plaintiff.
- The respondent referred also to Eustace v State of Queensland[17] and in particular to a passage from the judgment of Williams JA as follows:-
“The words “within the means of knowledge of the plaintiff” must not be overlooked. A fact which meets the test of being of a decisive character is within the plaintiff’s means of knowledge if that fact can be ascertained by asking a lawyer or doctor a simple question and it is a question which a reasonable person in the position of the plaintiff would ordinarily ask.”[18]
The issue for the Court of Appeal was whether the primary judge erred in assessing what was the plaintiff’s knowledge of the material facts at the relevant time. The case does not suggest that anything other than it was the plaintiff’s knowledge being considered after he had taken appropriate advice. The level of the solicitor’s knowledge was not an issue.
- The question of whether the plaintiff has satisfied the requirements of s 31(2) of the Act can be approached in the step by step manner identified by Dawson J in Do Carmo v Ford Excavations Pty Ltd[19] and adopted by Thomas JA in Dick v The University of Queensland[20] .
- The first step inquires of what was the material fact. Here the fact is of a composite kind which was also the situation in Randel. The ultimate part of the composite is the opinion of Dr Morgan that the treatment provided at the Mount Isa Hospital was below the accepted standard. This fact added a different dimension to the plaintiff’s prior knowledge which extended only to his awareness of the injury and, in broad terms, the nature of the treatment he underwent.
- As to the second step, the fact was decisive because it provided the foundation for the cause of action as a reasonable person, having taken advice, would have assessed.
- The third step, establishing that the fact was within the plaintiff’s “means of knowledge” inquires of the action taken by him to ascertain his position. This response is to be subjectively determined. The appropriate advice needs to be available “in a practical and not a theoretical sense”.[21] Here the plaintiff has entrusted to his solicitors the task of inquiring into the cause of his injury and disability and to advise him. In so doing, he behaved reasonably. In my view there is nothing in the advice which he received which ought to have put him on guard to make further enquiries of his solicitor or seek the advice of any other expert. In this sense his case is quite different to the circumstances in both Clarke and Eustace. Moreover, the plaintiff sought advice in a timely way resulting in his original action commencing before the expiration of the normal limitation period. The early medical reports contain no suggestion of any shortfall in the standard of the plaintiff’s treatment. The Court of Appeal decision in Pizer v Ansett Australia Limited[22] does not assist the respondent’s argument.
- For these reasons I am satisfied that the requirements of s 31(2)(a) have been made out. The evidence establishing the new cause of action required by s 31(2)(b) has not been challenged. Accordingly, I would extend the time for the commencement of any action against the State of Queensland in its capacity as the legal entity responsible for the operation of the Mount Isa Hospital as sought in para 1 of the application.
- The alternative relief was for leave to further amend the Amended Statement of Claim to include this new cause of action. The application is made pursuant to rr 375 and 376 of the UCPR. Rule 376(4) provides:-
“(4) The court may give leave to make an amendment, even if the effect of the amendment is to include a new cause of action, if –
- The court considers it appropriate; and
- The new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.”
- The respondent submits that the new cause of action against the second defendant, in its different capacity, does not arise out of “substantially the same facts”. The respondent points also to the significant delays in identifying the new cause of action, now more than six years beyond the expiration of the normal limitation period.
- In Thomas v State of Queensland[23] and before that in Draney v Barry[24] the Court of Appeal gave consideration to the expression “substantially the same facts”. At para 19 of the later decision the following passage appears:-
“It accords we think with Thomas JA’s statement in Draney v Barry which might usefully be repeated here.
“I do not think that ‘substantially the same facts’ should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under rule 376(4). If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts. In short, this particular requirement should not be seen as a straitjacket.”
Of course “the story” is a shorthand reference to the matters that the plaintiff has to prove. If it had to be proved, for example, that the road should have been differently constructed in the 1940s there would not be a different case (ie cause of action) there would be a substantial difference in the material facts now requiring to be proved. Quite apart from this, further consideration would have to be given to the question of prejudice. There are therefore limits to which a broad brush approach can provide the necessary answer. There will commonly be three separate questions to consider –
- Is there a new cause of action?
- Arising out of substantially the same facts?
- Prejudice.”
- The new cause of action here is quite distinct relating as it does to a claim of negligent medical treatment of injuries sustained as a result of alleged negligence in the provision of premises. However, the task of distinguishing between outcomes of the first negligent conduct if the subsequence treatment was not negligent, and the outcomes consequent upon the treatment being negligent, involves a consideration of the same facts relating to the initial injury, the nature and scope of treatment and opinions from independent experts. The advantages of the evidence being given once before the same court is obvious. If the addition of the new cause of action were not allowed in the current proceedings, inevitably there would be a demand for the actions to be tried together.
- I am satisfied the claims fall within the scope of s 376(4) but if not I would allow the amendment pursuant to r 375.
- As to prejudice, the respondent points to the passing of 13 years since the incident and particularly to the fact that the medical practitioners against whom the allegations are made, are no longer in the employ of the second defendant and have no independent recollection of the specific events. Against that is the fact that they do have access to the notes made by themselves and other members of the hospital staff. Whatever were the indications for them to adopt the course of treatment undertaken, those indications ought to be recorded there. They would also be able to give evidence of their usual practice in initiating the treatment they thought was required.
- Although there is always some prejudice resulting from delay, it is not so pronounced in this case as to deprive the plaintiff of the opportunity to pursue this course of action.
- I would therefore allow the amendment in the terms proposed in the draft ex “Q” to the affidavit of Mr Moffat.
Orders
- The period of limitation in respect of the plaintiff’s claim for damages for personal injury arising from treatment whilst the plaintiff was a patient of The Mount Isa Base Hospital between 29 August 1990 and 2 November 1990, is extended for one year to 16 October 2004.
- That the applicant have leave to file a further Amended Statement of Claim in terms of the draft Exhibit “Q” to the affidavit of Glenn Roy Moffatt filed 19 November 2003.
- That the costs of and incidental to the application be costs in the cause.
Footnotes
[1] Ex “A” to the affidavit of Glenn Moffat sworn 18/11/03
[2] Ex “B” to the affidavit of Glenn Moffat aforesaid
[3] See respectively Exs “G” and “I” to affidavit of Glenn Moffat sworn 18/11/03
[4] Ex “J” to affidavit of Glenn Moffat
[5] Ex “J” supra at p 7
[6] See para 13 to affidavit of Moffat supra
[7] See respectively exs “L” and “N” to affidavit or Moffat supra
[8] Affidavit of Moffat supra at para 20
[9] Ex “P” to affidavit of Moffat supra
[10] See para 23 to affidavit 18/11/03
[11] Transcript p 10/12
[12] (1983) 2 QdR 419
[13] (1984) 2 QdR 276
[14] Neilson at p 280; see also per Thomas J at p 285
[15] Unreported BC 9102958 – 20 Sept 91
[16] Ibid at p 10
[17] (1999) QCA 502
[18] Ibid at para 21
[19] (1984) 154 CLR 234/256
[20] (2000) 2 QdR 476/485
[21] See Dick v University of Queensland (supra) at para 30
[22] (1998) QCA 298
[23] (2001) QCA 336
[24] (1999) QCA 491