McWhae v Broadbent[2010] QSC 430

SUPREME COURT OF QUEENSLAND

1. This is an application made pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) (“the Act”) to extend the time within which to institute proceedings for personal injuries to 19 September 2008.

2. On 19 September 2008 Cathryn McWhae filed a claim for damages alleging that injuries that arose following her undergoing surgery were caused or contributed to by the negligence and breach of contract of the first defendant, Dr Russell Broadbent, and the second defendant, the Allamanda Private Hospital (“the hospital”).

3. However, s 11(1) of the Act precludes the bringing of an action for damages for personal injury due to negligence after the expiration of three years from the date on which the cause of action arose.  The cause of action arose when she underwent surgery on 5 July 2001 and so the period under s 11(1) of the Act expired on 5 July 2004.  Leave was given to commence proceedings on condition that the applicant bring an application pursuant to s 31 of the Act.  Some relaxation of the statutory prohibition against commencing an action after the statutory limitation period is found in s 31 of the Act.

4. Pursuant to s 31(2) of the Act, the plaintiff applied on 17 March 2009 to extend the time limit for the commencement of proceedings against the first and second respondents to 19 September 2008 (“the extension application”).  The proceeding has been stayed by a court order until the extension application is determined.  The applicant is one of nine applicants whose extension applications are opposed by the first respondent or the second respondent and sometimes both.  Each application will be considered separately because each depends on its own facts but there is considerable overlap between them and there is therefore unavoidably some repetition in the separate judgments particularly in the exegesis of the relevant statutory and case law.

5. The Act restricts the rights and liabilities of potential litigants and imposes strict obligations on those who seek remedies in court once the limitation period is past but is, regrettably, less than clear in its expression. In their joint judgment on the construction of this Act, Gummow, Hayne and Crennan JJ said in Queensland v Stephenson [2006] HCA 20 at [1]:

“Of the British ancestor of Pt 3 [of the Act], Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book.^[1]”

6. Kirby J observed, somewhat trenchantly, at [44]-[45]:

“In Ditchburn v Seltsam Ltd, I suggested that an encounter with statutory provisions similar to those under consideration in this appeal was liable to confuse judges and lawyers causing them to emerge ‘on the other side dazed, bruised and not entirely certain of their whereabouts’.  The passage of 17 years, and many more cases struggling with the meaning of the statutory language, has not removed the sense of disorientation. In a competition involving many worthy candidates, Lord Reid's prize remains in place.  This is so although, as Rehnquist J noted in Chardon v Fumoro Solo, ‘[f]ew laws stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitation’.  This desirable goal has not been attained in Australia.  This appeal affords the latest illustration of that fact.

In 1986, a law reform commission report was delivered proposing changes to the then template of Australian laws.  It suggested a simplified approach to applications for extension of time for commencement of actions.  However, amendments were not enacted in Queensland applicable to these proceedings, despite judicial endorsement elsewhere of the need for reform.  The result is that, in the present cases, the Queensland courts were obliged to struggle with the complex and obscure statutory language borrowed originally from a deficient English model.” (footnotes omitted).

7. A similar comment had been made by the Queensland Court of Appeal in Carlowe v Frigmobile P/L [1999] QCA 527 at [9]:

“That the extension provisions are complex and extremely technical and have been a fertile source of litigation has been adversely commented upon by the Queensland Law Reform Commission in their review of the Limitation of Actions Act 1974.”^[2]

8. In Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335 at [62], I added:

“The need for law reform is manifest and it has already been the subject of a Queensland Law Reform Commission Report.”

9. Nevertheless, the statute has not been amended and continues to be a fertile source of uncertainty and therefore litigation.

10. Section 31 relevantly provides:

“31Ordinary actions

(1)This section applies to actions for damages for negligence … or breach of duty … where the damages claimed by the plaintiff for the negligence … or breach of duty consist of or include damages in respect of personal injury to any person ...

(2)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.

(3)This section applies to an action whether or not the period of limitation for the action has expired –

…

(b)before an application is made under this section in respect of the right of action.”

11. The interpretation of s 31 is governed by s 30 of the Act, which provides:

“30Interpretation

(1)For the purposes of this section and sections 31 … –(a)the material facts relating to a right of action               include the following –

(i)the fact of the occurrence of negligence, … or breach of duty on which the right of action is founded;

(ii)the identity of the person against whom the right of action lies;

(iii)the fact that the negligence… or breach of duty causes personal injury;

(iv)the nature and extent of the personal injury so caused;

(v)the extent to which the personal injury is caused by the negligence, … or breach of duty;

(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 taken the appropriate advice 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 the 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.

(2)In this section –

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.”

12. The respondents have conceded for the purpose of this application that there is evidence to establish that the plaintiff has a right of action apart from the effect of the defence founded on the expiration of the limitation period so s 31(2)(b) of the Act need not be further considered.  Further, the first respondent does not oppose the application on the ground of prejudice. 

13. The application is opposed by the first respondent on the basis that there was no material fact of a decisive character which was not within the plaintiff’s knowledge or means of knowledge until after the relevant date for the purposes of s 31 of the Act, 19 September 2007, ie one year before the action was commenced.  The second respondent does not oppose the application on that basis.  The application is opposed by the second respondent on the ground of prejudice only.  Prejudice is relevant to the discretion that the court must exercise once an applicant has satisfied subsections 31(2)(a) and (b).  That discretion is found in the word “may” in the conferral of power to the court in the phrase “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”.

14. The first question to be examined is whether the court is satisfied that there was a material fact of a decisive character which was not within the applicant’s knowledge or means of knowledge before 19 September 2007. If that question is answered in the affirmative, she will succeed against the first respondent in this extension application. If the question is answered in the negative, then the extension application against the first respondent will be dismissed.

15. The second question to be examined is whether the court is satisfied that its power to extend time should be exercised in this case notwithstanding the allegation by the second respondent that it has suffered prejudice. If that question is answered in the affirmative, the applicant will succeed against the second respondent in this extension application. If the question is answered in the negative, then the extension application against the second respondent will be dismissed.

Extension application against the first defendant

16. The question to be determined in the application against the first respondent, stripped of its double negatives, is whether there was a material fact of a decisive character relating to the right of action which was not known to or within the means of knowledge of the plaintiff prior to 19 September 2007.

17. As the High Court observed in Queensland v Stephenson^[3] the test is a composite test, of which the practical result is that:

“An applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a) coincides with the circumstance that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests (as in s 30(1)(a)).  If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time.  If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.”

18. What is a “material fact” is governed by s 30(1)(a) of the Act.  It includes objectively ascertainable criteria such as the fact of the occurrence of negligence on which the right of action is founded, the identity of the person against whom the right of action lies, the fact that the negligence caused personal injury, the nature and extent of the personal injury so caused and the extent to which the personal injury was caused by the negligence.  In an extension application the applicant must show that, in spite of taking all reasonable steps to find out, he or she did not know a material fact before the relevant date or that he or she did not know that a material fact was of a decisive character. 

19. What gives material facts a “decisive character” is governed by s 30(1)(b) of the Act.  That subsection looks to the response of a reasonable person to the knowledge of material facts.  Material facts are taken to be of a decisive character if, but only if, a reasonable person knowing those facts, and having taken the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, would regard those facts as showing:

• 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

• 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.

20. Whether or not a material fact of a decisive character is “within the means of knowledge of a person” is governed by s 30(1)(c) of the Act, which is cast in the negative, so that a fact is said not to be within the means of knowledge of a person at a particular time if, but only if, the person does not know the fact at the time, and 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.  It is not the reasonable person which is the subject of the test but this applicant taking whatever reasonable steps were appropriate for her to have taken in the circumstances.

21. In Dick v University of Queensland,^[4] Thomas JA said:

“As to the third step, the question was whether the existence of an alternative safe system of work was ‘within the means of knowledge’ of the plaintiff during the relevant period.  His Honour observed that it is not enough that the plaintiff did not know; it is a question of his means of knowledge.  His Honour then emphasised that it is the means of knowledge of the plaintiff which are relevant and not the means of knowledge of a hypothetical reasonable man, citing the remarks of Lord Reid in Smith v Central Asbestos Co. such as ‘the plaintiff must have taken all such action as it was reasonable for him to take to find out’ and ‘… this test is subjective.  We are not concerned with ‘the reasonable man’”.  Dawson J. observed that s. 58(2) [Qld s. 30(1)(c)] unlike s. 57(1)(c) [Qld s. 30(1)(b)] ‘makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense’.”(footnotes omitted).

22. This factor was further explained by Keane JA in NF v State of Queensland [2005] QCA 110 at [29]:

“It is to be emphasized that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of ‘all reasonable steps’, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps.  The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.”

Material fact of a decisive character not within her means of knowledge

23. In order to ascertain whether the applicant has satisfied the court that there was a material fact of a decisive character which was not known to her or within her means of knowledge before 19 September 2007, it is necessary to examine the facts of the matter both before and after that date.

Before 19 September 2007

24. The applicant, Cathryn McWhae, was born on 13 October 1940 and underwent bilio-pancreatic diversion (BPD) surgery conducted by the first respondent, Dr Broadbent, at the second respondent hospital on 5 July 2001. She was 61 years old at the time of the surgery. Prior to the surgery the applicant worked part-time in her family-owned supermarket. She had left school at the end of Grade 10 and trained as a nurse. She worked in country hospitals and then worked in a supermarket in partnership with her husband. She returned to nursing part-time in a nursing home until 1993 when she returned to part-time work in the supermarket.

25. BPD surgery is described as a type of bariatric weight loss surgery involving the removal of approximately three-quarters of a person’s stomach and the diversion of parts of the small intestines. As a result of BPD surgery, a person absorbs less fat and other nutrients and is unable to eat large quantities of food and consequently loses weight.

26. Prior to undergoing the surgery the applicant had a medical history which included a partial hysterectomy, tubal ligation and appendectomy. She also suffered from depression. It seems that the applicant struggled with her weight for about 20 years before undergoing the surgery. She had repeatedly tried dieting and although she had not always been overweight her weight tended to fluctuate dramatically. After attempting a variety of weight loss techniques with little success, the applicant became depressed and began to consider surgical weight loss options. She found out about the first respondent through a friend.

27. The applicant’s first consultation with Dr Broadbent was on 7 July 2000. She weighed approximately 144 kilograms at the time and said that at that consultation, Dr Broadbent diagnosed her with a metabolism disorder called a fat storage disease which prevented her from losing weight. Dr Broadbent told her that lap band surgery would not work and only BPD surgery would successfully reduce her weight. The applicant was also told that to be eligible for the surgery, she would have to adhere to all of Dr Broadbent’s instructions and commence a rigorous fat free diet and exercise regime in an effort to lose weight. Following the consultation the applicant stopped eating fats and started doing a great deal of exercise. She struggled to lose weight on this diet and was repeatedly told by the first respondent that she was not complying with his instructions.

28. The applicant continued to consult with the first respondent for some time in preparation for the BPD surgery. Following each consultation, described as an “education and indoctrination” session, Dr Broadbent wrote to the applicant’s regular general practitioner, Dr Archinal, to provide an update on her progress. In a letter to Dr Archinal dated 7 July 2000 the first respondent explained that the applicant had a genetically inherited fat storage disease. In a further letter to Dr Archinal dated 1 November 2000 Dr Broadbent’s frustration with the applicant was plain. He spoke of “patient duplicity” and criticised the applicant for making “little progress if any over the 4 ½ months that we have been discussing this procedure.”

29. As a condition of undergoing the surgery the applicant was referred by Dr Broadbent to Deborah Marshall, a former patient of Dr Broadbent and obesity counsellor. The applicant said that she was led to believe by Ms Marshall that in order for the operation to be successful she needed to comply with exactly what the first respondent told her to do before and after the operation and follow his strict diet and exercise program. The applicant also attended meetings of a support group created by Dr Broadbent for BPD patients, known as OSSIE (Obesity Surgery Support Information and Education), which met at the hospital.

30. Ultimately, the applicant struggled to adhere to Dr Broadbent’s fat-free diet and exercise regime. She was told by Dr Broadbent that another patient had suffered weakness and fatigue after the operation because she had failed to follow his pre-operative advice. She was repeatedly told by Dr Broadbent that he would not perform BPD surgery on her until she was able to guarantee that she had made the lifestyle changes required.

31. The applicant’s surgery was eventually scheduled for July 2001. As the applicant was from Merimbula in New South Wales, on the recommendation of Dr Broadbent, she stayed in Queensland for six weeks prior to undergoing the surgery.  

32. The applicant was told by the first respondent not to discuss the surgery with anyone. She recalled that the first respondent would also often stress the fact he was a barrister as well as a doctor, particularly when he gave her forms to sign. If this allegation be true, and there is no reason to think that it is not, it may suggest that Dr Broadbent is unsuitable to remain on the register of legal practitioners and I will refer the matter to the Legal Services Commissioner for further investigation.

33. Prior to the surgery on 20 June 2001 the applicant signed a consent form, acknowledging that the operation depended on “patient compliance”. By signing the consent form, the applicant agreed that post-operatively she would eat a restricted diet consisting of 3 x 50ml fat-free meals per day until ideal weight was reached, after which 3 x 100ml reduced-fat meals were allowed. She also agreed to carry out the exercise programme exactly as requested by Dr Broadbent and recognised that the likelihood of success of the surgery was good provided that she complied and continued to comply with all of Dr Broadbent’s instructions. The applicant specifically recalled that when she was given the form, Dr Broadbent reminded her that he was a barrister and said that he had covered every necessary item in the consent form. He also emphasised to her that the main risk of the surgery was non-compliance with instructions.

34. The applicant was admitted to the hospital on 4 July 2001 and underwent the BPD surgery together with a two-third vertical sleeve gastrectomy, duodenal switch, 250cm digestive limb of small bowel, 65cm absorptive limb and gall bladder removal. She weighed 125 kilograms at the time of the surgery.

35. Post-operatively, the applicant felt extremely ill. She was given pureed food but was unable to keep it down. She kept vomiting and had acute pain in the left side of her abdomen. On 17 July 2001 the applicant developed a small leak from the top of her stomach and underwent further surgery. She was also diagnosed with an intra-abdominal sepsis. On 25 July 2001 the applicant had 2.51 litres drained from a subphrenic and pelvic abscess. She was further found to have an anastigmatic leak of inter-abdominal collection and was transferred to the Critical Care Unit of the hospital where she was subsequently given blood transfusions on 20 and 28 August 2001.

36. The applicant was discharged from the hospital on 27 September 2001 despite her inability to keep food down and ongoing pain, weakness, loss of balance and fatigue. She consulted the first respondent on 5 October 2001 and was told that she simply needed to adhere to the fat-free diet of 50mls of pureed fruit, vegetables and cereal three times per day and continue exercising.

37. The applicant returned to her home in New South Wales, however in mid October 2001 became alarmed when she found that she was leaking fluid from her stomach.  She telephoned the first respondent and he directed her to come to Queensland immediately to see him as no one else understood BPD surgery.  The applicant said she and her husband drove all night to Queensland and that when they arrived she was saturated in fluid which had leaked from her stomach. 

38. The applicant was re-admitted to the hospital on 18 October 2001 for wound infection and was diagnosed with a fistula and staphylococcal septicaemia by the first respondent. In respect of the fistula she said that she was told by Dr Broadbent that he could not operate on it and the best thing would be to let it heal by itself. The applicant had a tube inserted into her stomach and a naso-gastric tube.

39. She was eventually transferred to a hospital closer to her home in New South Wales, Bega Hospital, on 11 December 2001.  At about that time, the applicant’s daughter told her that a staff member at the second respondent hospital had told her that she “should get out of there as soon as possible.”

40. Whilst at Bega Hospital the applicant was cared for by Dr AJ Collins and was fed by naso-gastric tube.  She was also monitored by a dietician.  She recalls that during this time Dr Collins said that it was possible that she would never leave hospital and would die.  She decided not to return to Dr Broadbent for further treatment.

41. Ms McWhae was transferred to the Alfred Hospital in Melbourne on 23 January 2002 after her daughter found out about another doctor, Professor O'Brien, who had knowledge of BPD surgery.  Ms McWhae agreed in cross-examination that she thought that her daughter told her, at about this time, that on hearing of her case Professor O'Brien remarked, “There are a lot of hillbillies out there.”  Professor O'Brien performed surgery to repair the applicant’s gastro-cutaneous fistula by conducting a laparotomy, division of adhesions, drainage of abscesses, resection of fistulae and mesh herniaplasty.  In his letter to Dr Collins and copied to Dr Broadbent, Professor O'Brien said that although the operation was difficult he felt that the applicant’s problem was partially controlled. 

42. The applicant asked one of the assisting surgeons what they had found and he said, “The mess we expected to find.”

43. The applicant was discharged from the Alfred Hospital on 8 or 9 February 2002 and although she recovered from the operation, she continued to suffer from fatigue, nausea and abdominal problems throughout 2002.

44. She agreed in cross-examination that she knew from that time that she suffered from significant health problems relating to her surgery and, she added. “lack of patient compliance, as I was told.” She said she still believed what Dr Broadbent had said, that problems were due to patient non-compliance, in particular not exercising enough post-operatively and not taking sufficient fluids.

45. On 23 March 2003 the applicant was admitted to the Intensive Care Unit of the Canberra Hospital with severe pneumonia and empyema of the left lung requiring drainage.  She was discharged on 23 April 2003

46. In 2004 the applicant was found to have arthritis in her knees. The orthopaedic surgeon sent her to an ear nose and throat specialist who in turn sent her to a neurologist who diagnosed balance problems caused by the antibiotics she had been prescribed at the second respondent hospital.

47. Towards the end of 2004 the applicant she felt depressed, anxious and unable to cope with her ill health. She subsequently developed a drinking problem by about the start of 2005.

48. The applicant was diagnosed with osteoporosis in February 2007.

After 19 September 2007

49. The applicant first began to think that her post-operative complications may have been due to negligence when she saw media reports of problems experienced by other patients of Dr Broadbent on 22 September 2007. Prior to this, the applicant believed that her post-operative complications were somehow linked to her ongoing health issues and did not realise that there were others who were experiencing similar problems. She also thought that her complications may have been attributable to non-compliance with Dr Broadbent’s instructions.

50. Until that time, the applicant was in awe of the first respondent as he was both a barrister and surgeon. She trusted the first respondent and did not think that there was any way he would have done anything wrong. When she gave evidence before me on this application she was obviously very frail and was clearly not sophisticated. Although she had worked as a nurse in the past, she did not have a high level of education.

51. On 15 October 2007, she submitted a complaint to the Health Quality and Complaints Commission in which she canvassed her history of treatment by Dr Broadbent and by other medical practitioners subsequently.

52. The applicant first consulted a solicitor from Maurice Blackburn Lawyers on 31 October 2007 in relation to a medical negligence claim. She then instructed Maurice Blackburn to investigate whether her health complications had been caused by the negligence of Dr Broadbent and/or the hospital.

53. On 26 November 2007 the applicant’s solicitors served an Initial Notice on the first respondent pursuant to the Personal Injuries Proceedings Act 2002.  A further Initial Notice was served on the second respondent on 30 November 2007.  Solicitors for the first respondent, Flower & Hart, and for the second respondent, Minter Ellison, advised that the Notices were served out of time and requested that the solicitors for the applicant provide a reasonable excuse for the delay. 

54. On 5 February 2008 the applicant’s solicitors advised both Flower & Hart and Minter Ellison that the applicant’s excuse for delay was that she had serious medical problems following the BPD surgery and had been concentrating on recovery; and that she did not consider that her complications may be due to negligence until she saw media reports on 22 September 2007.

55. Ms McWhae’s claim and statement of claim against Dr Broadbent and the hospital was filed on 19 September 2008. In her statement of claim, as amended on 17 November 2009, the applicant claims that it was a term of the contract between the applicant and the first respondent and/or the second respondent and/or it was the duty of the respondents that the respondents would exercise reasonable care and skill in the provision of treatment and advice and that the relevant treatment, advice and surgery provided would be commensurate with that of a competent and skilled surgeon and/or medical facility. The applicant alleges that the duty owed by the second respondent was non-delegable. She alleges that her injuries were caused or contributed to by the negligence and/or breach of contract of the first and/or second respondent.

56. The particulars of the breach of contract and negligence are:

• She was discharged from the hospital despite being unstable and at risk of developing serious complications following the BPD surgery;

• The first and/or second respondent failed to monitor her post-surgery or provide her with an appropriate nutrition plan so as to prevent her from developing malnutrition and other complications following the BPD surgery;

• The first and/or second respondent failed to provide her with appropriate nutritional advice both before and after the BPD surgery, failed to advise of the likely complications and failed to exercise reasonable care and skill in the provision of advice, patient selection, surgery and treatment;

• The first and/or second respondent failed to give her adequate and correct warnings as to the risks associated with BPD surgery particularly in regard to accurately explaining the risk of morbidity and the importance of nutritional advice;

• The first and/or second respondent failed to consult with or refer her to other medical practitioners for treatment following BPD surgery;

• The first and/or second respondent failed to prevent the plaintiff developing surgical site infection by not undertaking adequate preparation for surgery and adequate post-surgical treatment;

• The first and/or second respondent failed to prepare the plaintiff for surgery by clipping body hair and/or providing two antiseptic showers so as to provide adequate protection against infection.

57. The applicant’s solicitors met with Associate Professor Simon Woods, a general surgeon specialising in surgical treatment of obesity, in Melbourne on 4 March 2009 to seek an expert opinion on the BPD surgery performed by Dr Broadbent on the applicant and others.  A memorandum in respect of this meeting was prepared by the applicant’s solicitors and reviewed and signed by Dr Woods.  That memorandum said that although Dr Woods had not seen the surgical technique performed by Dr Broadbent and therefore thought that it was difficult to critique, he could identify four salient points in relation to Dr Broadbent’s performance of the surgery:

1. Dr Broadbent made the patients vulnerable pre-operatively by his nutrition, dietary and exercise regimen. The patients came to major surgery compromised, in a weakened state and with a reduced ability to heal;

2. He exacerbated that vulnerability post-operatively by giving them inappropriate nutritional advice and failing to maintain standard nutritional parameters;

3. He generally refused to request or accept advice from other practitioners.  Even when he did acknowledge that the patient had nutritional deficiencies he did not provide adequate care;

4. He turned a blind eye to obvious symptoms such as fevers and repeatedly blamed the patient for not complying when he should have been investigating the cause of the symptoms.

58. The memorandum also said that Dr Woods was of the opinion that:

• Dr Broadbent failed to increase the protein intake of his patients pre-operatively and post-operatively despite high protein being a fundamental requirement for a healthy immune system and post-operative wellbeing;

• It was inappropriate for Dr Broadbent to feed some patients temporarily via a naso-gastric tube where there are problems with the stomach (the tube should be placed into the small bowel);

• Dr Broadbent’s pre-operative regimen was fundamentally flawed as patients would come into the operation protein and vitamin deficient;

• Dr Broadbent promoted a vegan diet which is just possible to maintain post-operatively if the patient eats enough vegetable proteins.  Dr Broadbent, however, discouraged patients from eating those vegetable proteins;

• Dr Broadbent exhorted his patients to exercise but insisted on a protein deficient diet.  A person cannot exercise and maintain muscle mass unless the patient  maintains protein;

• Dr Broadbent provided “seriously misleading” information to his patients on food composition;

• A short-term problem with Dr Broadbent’s conduct was that patients deficient in protein and vitamins would have their recovery hampered and a reduced ability to cope with complications and infection.  The most common short-term risk of the operation is staple line leakage;

• There are several long-term problems that may arise following BPD surgery – BPD surgery deliberately gives the patient malabsorption and as a result, adequate protein is needed otherwise the patient will become malnourished; a serious vitamin A and vitamin D deficiency may lead to reduced bone mass and possible osteoporosis, dysfunction of the immune system, depressive symptoms and increased risk of a variety of cancers. 

59. Dr Woods recognised that despite its inherent risks, the long term results of BPD surgery for obesity are very satisfactory and that there was no reason why patients should not be back at work and living normal lives following appropriate monitoring.

60. Specifically in relation to the applicant, Dr Woods thought that it was more probable than not that the incorrect nutrition and dietary advice of Dr Broadbent had contributed to the applicant’s post-operative complications. The applicant’s lack of protein and vitamins considerably lessened her capacity to recover from a major surgical procedure and exposed her to greater risk of infection.

61. Dr Woods was of the opinion that the applicant had suffered serious post-operative complications which may have been prevented or minimised had she been provided with adequate nutrition. At no time was she provided with adequate nutrition whilst under the care of Dr Broadbent.

62. The second respondent’s solicitors also spoke to Dr Woods on 27 and 30 March 2010. By letter dated 31 March 2010, they confirmed his views that:

• Ms McWhae suffered intra-abdominal sepsis due to a leak from the stomach.  The source of the sepsis was fluid leaking into the peritoneum.  This infection was totally unrelated to the manner in which the skin was prepared for surgery;

• The development of the leak and consequent infection bore no relationship to whether or not the applicant was given pre-operative antiseptic showers, or whether the skin was clipped or shaved prior to surgery;

• It was not within nursing expertise to comment on the cause of the applicant’s abdominal sepsis.

63. The applicant’s solicitors submitted that the expert evidence of Dr Woods suggesting that the advice and treatment of the first respondent was below the standard expected of a competent and skilled surgeon is the material fact of a decisive character which was discovered by the plaintiff after the expiration of the limitation period.

64. The first respondent, Dr Broadbent, submitted that the court should dismiss the application on the basis that the applicant’s material fact of a decisive character relating to her right of action was within her knowledge or means of knowledge at a time more than one year before the commencement of the proceedings. In particular he referred to what she knew before 19 September 2007:

• Before her surgery she knew of another patient who had undergone the same surgery and was “in dire straits”;

• After her initial surgery, she was readmitted to the second respondent hospital on 18 October 2001 where she stayed until she was transferred to the Bega Hospital where she stayed until late January 2002;

• Whilst at Bega Hospital she was told she might die, she heard negative comments about her former treatment and decided not to consult Dr Broadbent again;

• When operated upon in 2002, the assisting surgeon told her that they found the mess they expected to find and had tried to undo the damage caused by the first respondent;

• Later she learned that she had acquired a balance problem because of the antibiotics she had been given in the second respondent hospital;

• She made a complaint to the Health Quality and Complaints Commission in October 2007 about all of these matters.

65. The applicant must show that there was a material fact of a decisive character relating to the right of action which was not known to or within her means of knowledge before 19 September 2007.

66. The material facts in this case included the occurrence of negligence on which the right of action is founded, the fact that the negligence caused personal injury and the nature and the extent to which the personal injury was caused by the negligence. Prior to seeing the media reports on 22 September 2007, Ms McWhae did not actually know that the injuries to her were caused by negligence on Dr Broadbent’s part. She then instructed solicitors who obtained a report from Dr Woods. All of this happened after 19 September 2007. Those facts were of a decisive character because they showed her that an action on the cause of action which she then knew she had (that is that the negligence of Dr Broadbent had caused her personal injury) would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on that cause of action; and that she ought in her own interests and taking her circumstances into account to bring an action on that cause of action. She did not know before 19 September 2007 that her injuries were caused by Dr Broadbent’s negligence. As Thomas JA held in Dick v University of Queensland [1999] QCA 474 at [20]:

“The distinction between knowledge that someone has caused an injury and knowledge that that person has caused it negligently is fundamental.”

67. Had she taken all reasonable steps to find out that fact? She did not suspect that Dr Broadbent was negligent and it was this negligence that had caused her injuries. Rather she believed that it was her failure to follow his instructions that was causing her symptoms. The applicant specifically recalls that when she was given the consent form, Dr Broadbent reminded her that he was a barrister and said that he had covered every necessary item in the consent form. He emphasised to her that the main risk of the surgery was non-compliance with instructions. Until September 2007, she was in awe of the first respondent as he was both a barrister and surgeon. She trusted the first respondent and did not think that there was any way he would have done anything wrong. On giving evidence she appeared to be an unsophisticated and trusting person. While another person may have been more assertive in endeavouring to find out if it was negligence on the part of Dr Broadbent that had been responsible for her post-operative complications, this frail and unassertive lady took all the steps that it was reasonable for her to take.

Conclusion

68. The applicant has therefore shown that there were material facts of a decisive character relating to the right of action which were not known to her or within her means of knowledge before 19 September 2007. The first respondent did not suggest that there were any discretionary reasons to refuse the application; it is appropriate to grant the orders sought in the application against the first respondent. The period of limitation for bringing proceedings against the first respondent should be extended to 19 September 2008.

Extension application against the second defendant

69. The first respondent conceded that there is evidence to establish that the plaintiff has a right of action against the first respondent apart from the effect of the defence founded on the expiration of the limitation period and the applicant has satisfied the court that there were material facts of a decisive character relating to the right of action which were not known to her or within her means of knowledge until one year before the litigation commenced. Consequently the applicant will be able to litigate her claim against the first respondent. This has some relevance to her claim against the second respondent.

70. In Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 372, Clarke JA, with whom Kirby P and Hope JA agreed, held, in respect of a case involving the limitation period where there was more than one possible defendant:

“According to well recognised principles where a plaintiff, who has sued multiple defendants one or more of whom may be liable, shows prima facie that at least one defendant may be responsible, the court is bound to hear the whole of the evidence before entertaining submissions by any other defendant that no case has been established against him. This is so even if the plaintiff has not called any evidence demonstrating the fault of the particular defendant.

The rationale of the rule, as explained in Menzies v Australian Iron & Steel (1952) 52 SR (NSW) 6269 WN (NSW) 68, is that if the rule were otherwise the defendant against whom a prima facie case was shown might escape liability by addressing evidence to the effect that the defendant against whom the case had been dismissed was the party who was actually at fault. Indeed that is what occurred in Hummerstone v Leary [1921] 2 KB 664, the case cited in Menzies. Obviously that result would be inimical to the interests of justice.”

71. This passage was cited with approval by Keane JA in Raschke v Suncorp Metway Insurance Limited at [2005] 2 Qd R 549 at [28].

72. As the second respondent did not seek to contest that there was a material fact of a decisive character that was not known to the applicant or within her means of knowledge until 19 September 2007, it is unnecessary to traverse the evidence led to establish that.

73. The question to be examined is whether the court is satisfied that its power to extend time should be exercised in this case notwithstanding the allegation by the second respondent that it has suffered prejudice.

74. An applicant who satisfies the elements of s 31(2) of the Act is not entitled as of right to an order.  The applicant must still justify the exercise of the court’s discretion in his or her favour.  The principal discretionary ground which might prevent an order being made to allow such an applicant to commence proceedings outside the limitation period is prejudice that will be suffered by a respondent if such an order is made. The onus remains on the applicant to establish that the discretion should be exercised in her favour. As Keane JA held in HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 at [57]:

“Even where the requirements of s 31(2) have been satisfied, the burden remains on the applicant for relief to show good reason for the favourable exercise of the discretion.  An applicant who is unable to show that a fair trial can take place notwithstanding the delay which has occurred will not discharge that burden.”

75. The leading case on the effect of prejudice on the court’s discretion is Brisbane South Regional Health Authority v Taylor [1996] HCA 25.  Toohey and Gummow JJ explained it at 548-549 as follows:

“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”(footnotes omitted).

McHugh J held at 555:

“If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, [the medical practitioner] might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself.  But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important.  To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action.  This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent.  But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”

76. To understand the prejudice which the second respondent said it will suffer if an extension order is made against it, it is necessary to consider the evidence sought to be led against it. The applicant led expert evidence by Catherine Sharp, an experienced nurse, to endeavour to prove that the second respondent was in breach of its contract, and failed in its non-delegable duty, to exercise reasonable care and skill in the provision of treatment and advice and that the relevant treatment, advice and surgery provided would be commensurate with that of a competent and skilled medical facility.

77. In a report dated 16 October 2009, Ms Sharp opined that the care provided by the staff of the second respondent fell below a reasonable standard expected of a private hospital in the following ways:

• By shaving rather than clipping the applicant’s body hair prior to surgery -  this was said to increase the applicant’s risk of surgical site infection;

• By failing to provide the applicant with two antiseptic showers pre-surgery.  Ms McWhae was not showered at all;

• By failing to use impermeable wound dressings to prevent bacteria from entering the surgical site;

• By failing to notify senior nursing staff and the surgeon that the applicant was “spitting up refluxed old blood-stained liquid” the day after surgery;

• By failing to notify the surgeon, wound care consultant or senior nurse manager of the applicant’s surgical site infection symptoms;

• By failing to notify staff of the applicant’s high temperature and raised blood pressure;

• By failing to organise a consultation with a dietician or question the surgeon about input from a dietician;

• By failing to provide the applicant with an alternating air pressure mattress when she developed a pressure ulcer on her back in late July 2001;

• By failing to notify the wound care consultant, surgeon or senior nursing manager when some 2550mls were drained from one of the applicant’s pigtail drains on 24 July 2001; and

• By failing to notify the surgeon or senior nurse manager of the applicant’s hypertension four days after the surgery.

78. Ms Sharp further said that the applicant should not have been discharged from Allamanda Private Hospital on 27 September 2001 as she:

• Was still nauseated and required intramuscular injections of Maxalon;

• Had low haemoglobin even after undergoing a blood transfusion;

• Had abnormal blood results; and

• Was sent home without arrangements being made for the input of a dietician.

79. The factual basis for Ms Sharp’s opinion is found in her examination of the comprehensive records kept by the hospital, including the applicant’s medical chart which includes detailed and extensive notes made by the nursing staff. She was not specifically cross-examined about her report about the applicant.

80. The solicitors for the second respondent have endeavoured to identify and contact the nursing staff responsible for the care of the applicant in order to obtain statements regarding their recollection of their involvement in the applicant’s care. Those enquiries have identified nurses who have been contacted and some who had not been contacted by the time of the hearing of the extension application.

81. The nurses contacted and who have provided affidavits are Lisa Beale, Colleen Jarvis, Christine Carter and Gayle Fuller. Registered Nurse Kathy McLoughlan, who was the discharge nurse, has refused to assist unless summonsed.

82. Ms Carter has been a level 2 registered nurse since 1998. She remembered the applicant’s name and that she was from another State and recalled that the applicant had an “adverse outcome after surgery”. She recalled that the applicant’s pigtail drain drained a lot of fluid both when she was involved in her care and earlier. However she did not remember whether she, or anyone else, had any concerns about her care. She said that if she had been concerned about the applicant, she would have raised her concerns with Dr Broadbent initially and if not satisfied with his response, would have spoken to the Nurse Unit Manager or the hospital co-ordinator if the Nurse Unit Manager was not available. She would have recorded that in the applicant’s chart. Her evidence on cross-examination was that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. Anything of significance to the treatment and care of the applicant would have been recorded in the notes. However, she agreed in re-examination that if something was omitted from the notes she would not be able to recollect that at this distance.

83. Ms Beale said that she had a vague independent recollection of the applicant and recalled that she was a “very sick lady”. Her evidence was that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. Anything of significance to the treatment and care of the applicant would have been recorded in the notes. She was unable to recall the specifics of the nursing care she provided to the applicant nor whether she had any concerns about the applicant. She said that if she had any concerns she would have raised them with the nurse in charge of the ward. When she was the nurse in charge she would have raised them directly with Dr Broadbent. In either case she would have made a corresponding note in the patient’s medical chart.

84. The Nurse Unit Manager at the time of Ms McWhae’s admissions, Ms Fuller, had a vague recollection of Ms McWhae as she had a burn on her leg when she was first admitted to the hospital. However, she did not recall whether nursing staff raised any concerns or queries about the applicant’s care. Ms Fuller’s evidence was that generally if nursing staff raised concerns with her about a patient’s condition, for example the patient’s haemoglobin levels, temperature or other aspects of the patient’s care, this was recorded in the patient’s chart. If the results were abnormal, Dr Broadbent was notified. Her usual practice was to have a conversation with the Director of Nursing about any adverse outcomes. She said that in some cases incident reports were kept.

85. Ms Fuller was able to give evidence as to Dr Broadbent’s requirements for shaving or clipping patients prior to surgery, showering prior to surgery and pre-operative and post-operative care. While she did not specifically remember whether the applicant was shaved or clipped prior to undergoing surgery, she recalled that Dr Broadbent required all patients to be clipped from the nipples to the pubic area prior to surgery. Her evidence was that at this time clippers were used to remove hair from the area. Her oral statement in evidence as to not remembering in what year the change from generally shaving to clipping happened was of little moment for two reasons: first, she has been a nurse since 1969 and there was no suggestion that the change in practice was recent; secondly, Dr Broadbent required all his patients to be clipped. It appears unlikely then that the second respondent would be disadvantaged in answering this allegation of negligence.

86. Ms Fuller said that the first respondent was autonomous in his care and did not want any other practitioners involved with his patients. She said any suggestion that another practitioner or allied health professional, such as a dietician, should become involved would be dismissed. She did not always regard this as appropriate.

87. Counsel for the hospital submitted that criticism by Ms Sharp of matters not noted in the chart were difficult to deal with. An example was Ms Sharp’s criticism that the nursing staff failed to notify senior nursing staff and the surgeon that the applicant was “spitting up refluxed old blood-stained liquid” the day after surgery. This was noted in the patient’s chart at 3.30pm on 6 July 2001. Counsel refers to the fact that Dr Broadbent saw the applicant on his evening round at 6pm. He gave an order for a reflux medication to be started. If Dr Broadbent was not contacted, presumably it was not considered necessary because of his regular round being imminent. It does not appear that the hospital would be disadvantaged in dealing with an allegation that this omission was negligent.

88. Moreover, a close examination of the patient chart tends to reveal that the nurses were meticulous in their note taking including whenever they contacted Dr Broadbent outside his normal rounds. Examples of this are found on 16 and 17 July 2001. Notwithstanding that Dr Broadbent saw the applicant in the hospital at 10pm, the patient notes record that he was contacted by the nursing staff at 10.30pm and again at 1.30am. He saw the patient at 4.15am and 7.00am.

89. There are more notes to similar effect, which tend to show that the patient chart was detailed and comprehensive and reduce the prospect that the nursing staff would have to rely on their actual memory. There are good clinical reasons for this. Patients in hospital are nursed around the clock by different nurses on different shifts and so it is important that all relevant and significant details are recorded. Nurses cannot be expected to retain any detailed recall apart from what is recorded in the patient chart. This explains why it is important that comprehensive notes are kept in the patient chart and no doubt explains why the notes kept in this case appear to be so comprehensive.

90. Another nurse involved in her care was identified as Kathy Fitzgerald. However, the second respondent’s solicitor gave evidence that Nurse Fitzgerald’s evidence may not be relevant because the evidence she might be able to give is dealt with by other witnesses on behalf of the second respondent.

91. The medical chart also shows that other nurses who were involved in the care of the applicant around the time of her admission to the hospital were RN Johnson and Kim Robinson. The second respondent does not hold any contact details for them and it is likely that they were agency nurses. The solicitors for the second respondent requested the Queensland Nursing Council for their contact details or that they pass on the solicitor’s contact details to them and ask them to contact them. That request was made on 29 March 2010 and no response was received by 30 March 2010. The solicitors have not asked the second respondent for the name of the agency that they used nor contacted the agency for whom they worked.

92. The second respondent also called evidence, in each of the cases involving this hospital, of its relationship with Dr Broadbent and other records kept by the hospital.

93. Christine Samin was the Director of Nursing at the hospital from 1997 until 2007. She provided evidence on affidavit about the relationship between Dr Broadbent and the hospital and about Dr Broadbent’s medical orders. David Millen, the current Manager of Clinical Services at the hospital, also provided an affidavit in relation to Dr Broadbent’s medical orders.

94. As the Director of Nursing at the hospital, Ms Samin was required to attend meetings of the Medical Advisory Committee, the committee responsible for accrediting specialist medical practitioners, otherwise known as Visiting Medical Officers (VMOs).

95. The first respondent had been accredited as a VMO at the hospital for a number of years prior to Ms Samin’s appointment as Director of Nursing. The first respondent held clinical privileges for general surgery which entitled him to admit patients to the hospital for the purpose of undergoing elective and emergent surgical procedures. Dr Broadbent was not an employee of the hospital and there was no employment contract in existence between the hospital and the first respondent. The hospital did not remunerate him and he invoiced patients directly for his medical services.

96. VMOs at private hospitals operate their own medical practice independent of the hospital. They utilise the hospital facilities and nursing staff for patients who require admission and treatment at a private facility. In order for a patient to be admitted to the hospital, they must be referred for admission by a credentialed VMO.

97. In the case of the first respondent, he had allocated surgical operating time at the hospital and would book patients on his surgical list as required. He would determine the date of their surgery according to his set surgical list and he would then notify patients of the date and time of their admission to the hospital and obtain their consent to undergoing the nominated procedure.

98. The hospital required the first respondent’s patients to sign a generic hospital consent acknowledging that they had engaged the first respondent to undertake the nominated procedure, that they understood that he was “not an employee of the hospital …” and that the hospital had not given the patient “any advice as to the medical treatments/procedures to be undertaken …”. Ms Samin attached a copy of the consent form signed by the applicant on 4 July 2001.

99. Details of the patient bookings would then be faxed by the VMO’s private practice rooms to the hospital. Any emergency procedures that could not be added to the surgical list would be arranged by the first respondent in collaboration with the hospital coordinator and/or the theatre manager.

100. Following the patient’s admission to the hospital, a nursing history was undertaken which detailed the reason for the patient’s admission, his or her medical and surgical history and information relevant to discharge planning. A copy of the applicant’s pre-admission nursing history was exhibited to Ms Samin’s affidavit.

101. Apart from this discussion by nursing staff with the patient pre-operatively, there was no discussion with the patient regarding the medical details of the proposed surgery. That was the sole responsibility of the first respondent. The first respondent had responsibility for the medical decisions made regarding the patient’s management while admitted to the hospital. The hospital did not supervise any of its VMOs in the management of their patients or the performance of surgical procedures undertaken by them.

102. The patient was prepared for surgery in accordance with the orders given by the patient’s admitting VMO. The medical orders detailed the VMO’s instructions for the pre-operative preparation of patients, nurse initiated medications and post-operative instructions.

103. Exhibited to Ms Samin’s affidavit were Dr Broadbent’s medical orders for all procedures from January 2001. Under the heading “Specific Pre-op Preparation”, was the instruction to “shave all operation sites”. Beside the instruction to shave all operation sites was drawn the symbol <. The top line led to a note dealing with the shaving requirements for laparoscopic hernia and the bottom line to a note “See specific instructions for instructions for Bilary Pancreatic Diversion and major Colonic Surgery”. In context, this appears to be a reference to Dr Broadbent’s instructions for shaving for BPD and major colonic surgery. Ms Samin could not recall whether specific medical orders ever existed for BPD surgery and said she understood that the hospital had been unable to locate such orders. Ms Samin said she understood that the hospital had attempted to locate copies of the medical orders in place for the first respondent prior to this time, but had been unable to do so. She was not able to recall whether any medical orders existed prior to January 2001. Any such order would not, in any event, be relevant to the applicant’s surgery which occurred after that date.

104. Mr Millen said that he had caused a search to be undertaken of the archived files of medical orders held by the hospital for visiting medical officers and had been advised that the hospital had been unable to locate any written “specific instructions” from the first respondent in relation to BPD surgery.

105. Ms Samin’s evidence was that on admission to the hospital, the patient was considered to be the sole responsibility of the admitting VMO. If other medical or allied health care providers were required to be involved in the patient’s management, it was at the discretion of the VMO, who must make the appropriate referrals directly to such other doctors who were credentialed at the hospital.

106. The hospital did not employ dieticians whilst Ms Samin held the position of Director of Nursing. If a dietician was required to become involved in the patient’s management, a referral was made by the VMO to a dietician credentialed by the hospital. Dieticians who were credentialed by the hospital operated their own private practice independent of the hospital and were not employed or remunerated by the hospital.

107. The decision to discharge a patient must be made by the admitting VMO. Nursing staff did not have the authority to discharge patients from the hospital. Ms Samin’s evidence was that following discharge, the hospital had no ongoing role in the patient’s care. Her affidavit exhibited the Nursing Discharge Summary relevant to the applicant.

108. The applicant submitted that there is no prejudice to the second respondent: that the failure of nurses to remember the specific details of nursing care is not sufficient prejudice to conclude that a fair trial can no longer be conducted. The second respondent submitted that the court should not exercise its discretion to grant leave to extend the limitation period because of the prejudice occasioned to the hospital which prevented the matter being tried fairly.

109. There is no doubt that litigation provides difficulties if it is conducted after the limitation period is past and yet the legislation provides that the court may extend time. The question is whether the applicant has satisfied me that notwithstanding any prejudice caused by the delay it is possible to have a fair trial. To do so the applicant must displace what McHugh J referred to as the general rule in Brisbane South Regional Health Authority v Taylor at 555, that “actions must be commenced within the limitation period” which “should prevail once the defendant has proved the fact or the real possibility of significant prejudice”.

110. The factors that persuade me that any potential or actual prejudice is not significant, that it is possible to have a fair trial and so to exercise my discretion in favour of extending the limitation period against the second respondent in this case include:

• With the exception of the specific instructions with regard to shaving for BPD surgery, the hospital holds all the relevant general records relating to its relationship with the first respondent;

• More importantly, there are comprehensive records of this patient’s care including the hospital’s consent form, pre-admission nursing history, patient charts and discharge summary;

• Nurses remember the applicant because she had an adverse outcome after surgery;

• The applicant had more than one admission to the hospital;

• Despite Ms Carter’s reservation, the patient notes were agreed to reflect a thorough summary of the treatment provided, the medications dispensed and the nursing care provided.  Anything of significance to the treatment and care of the applicant was recorded in the notes

• The hospital had standard procedures and there is no reason to believe they were deviated from in this case;

• The second defendant has available to it nurses relevantly involved in her care;

• Although the second respondent has not yet been able to contact Nurses Fitzgerald, Robinson and Johnson, the second respondent’s solicitor had not, at the time of the hearing of the extension application, by any means exhausted all means of contacting them and conceded in any event that Nurse Fitzgerald’s evidence was unlikely to be relevant;

• As the matter will be proceeding against the first respondent, it is likely that many of the matters relevant to the applicant’s case against the first respondent will be litigated in any event;

• The second respondent has the advantage of the evidence of Dr Woods referred to earlier.  Liability will to a large extent depend not so much on what was done or not done by the nursing staff but what the consequences of those actions or omissions were, a proper subject of expert evidence.

Conclusion

111. The applicant has therefore satisfied the court to exercise the discretion to allow her to proceed against the second respondent. The period of limitation for bringing proceedings against the second respondent should be extended to 19 September 2008.

Orders

112. I will order that the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.  I will hear submissions as to costs.