Marsden v Broadbent[2010] QSC 431

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 Hannah Rantzen Marsden 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 22 October 2003 and so the period under s 11(1) of the Act expired on 22 October 2006.  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. 

14. 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”.

15. 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.

16. 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

17. 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.

18. 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.”

19. 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. 

20. 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.

21. 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.

22. 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).

23. 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

24. 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

25. The applicant Hannah Rantzen Marsden, formerly known as Jessica Lee McKenzie, was born on 28 September 1968 and underwent bilio-pancreatic diversion (BPD) surgery conducted by the first respondent, Dr Broadbent, at the second respondent hospital on 22 October 2003. She was 35 years old at the time of the surgery.

26. 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 the surgery, a person absorbs less fat and other nutrients and is unable to eat large quantities of food and consequently loses weight.

27. The applicant had an extensive psychiatric history owing to severe physical and sexual abuse suffered as a child. Prior to the surgery she was taking antidepressants on and off. She had been diagnosed with dissociative identity disorder and post-traumatic stress disorder when she was 16 years old.

28. The applicant did not have problems with her weight until her early thirties. To reduce her weight she exercised and also dieted. Although this was successful she became worried that she would put the weight back on and this prompted her to research weight loss surgery, such as gastric banding, on the internet. She was initially interested in undergoing gastric banding but was put off when she enquired about this procedure with Dr George Fielding and was told that she was not sufficiently overweight to warrant the operation.

29. Some weeks after this the applicant recommenced looking for weight loss surgery options on the internet and it was there that she found the first respondent’s details. When she telephoned the first respondent’s office an appointment was made for her without any questions asked.

30. The applicant’s first consultation with Dr Broadbent was on 23 September 2002. She weighed approximately 102 kilograms at the time. Following the consultation the applicant commenced a rigorous diet and exercise regime as recommended by Dr Broadbent which consisted of her keeping her fat intake below 6 grams per day and walking on average 3 to 4 hours per day. As recommended by Dr Broadbent, the applicant ate only fruit, vegetables and carbohydrates.

31. The applicant continued to consult with the first respondent for some time in preparation for the BPD operation. Following each consultation, described as an “education and doctrination [sic] session”, Dr Broadbent wrote to the applicant’s general practitioner, Dr Ernest Narodetsky, to provide an update on her progress.  At her second consultation with Dr Broadbent on 7 October 2002, the applicant was diagnosed with a fat storage disease described by Dr Broadbent as being a “relentlessly progressive”, “genetically transmitted problem”.  He warned against gastric banding due to its “very low long term success.” 

32. In the lead up to the surgery the applicant was told by the first respondent that if she exercised vigorously for an hour per day she would not feel hungry and would be able to survive almost entirely off her own body fat. At a later consultation she was told by Dr Broadbent that if she followed a fat-free diet and exercised, her fat stores would be mobilised and she would consequently have more energy and would eat less.

33. The applicant said she became obsessed with losing weight and intended to undergo the BPD operation in July 2003 when she was certain her private health insurance policy, taken out in July 2002, would be able to cover it.

34. The applicant’s surgery was delayed by her admission to the hospital on 1 June 2003. She was seen by Dr Broadbent and a laparoscopic cholecystectomy was performed on 2 June 2003. Ultimately the applicant was diagnosed with obstructive jaundice due mostly to the presence of stones in her common bile duct and gallbladder. She was referred to another specialist who performed an endoscopic retrograde cholangiopancreatography (ERCP) and sphincterectomy. She was discharged from the hospital on 12 June 2003 and advised by Dr Broadbent to keep up the fat free diet and exercise at home. Following her discharge the applicant continued to feel unwell and suffered abdominal pain causing her to be admitted to the Gold Coast Hospital on 27 June 2003 for 5 days.

35. As a condition to undergoing the surgery the applicant was referred by Dr Broadbent to Lee Quist, a former patient of Dr Broadbent and obesity counsellor. The applicant was told that she had to complete six counselling sessions with Ms Quist before she would be able to undergo BPD surgery. The applicant was led to believe by Ms Quist that in order for the operation to be successful she needed to comply with exactly what the first respondent told her before and after the operation.

36. The applicant consulted with the first respondent again on 10 September 2003 and was advised to increase exercise in preparation for the surgery.

37. Prior to the surgery on 18 September 2003 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.

38. The applicant was admitted to the hospital on 21 September 2003 and underwent BPD surgery together with a sleeve gastrectomy, duodenal switch and appendicectomy on 22 September 2003. She weighed 92 kilograms at the time of the surgery. Post-operatively, the applicant recalls having a high temperature and being given intravenous fluids and ice to suck. She was discharged on 28 September 2003.

39. Upon returning home, the applicant attempted to follow the first respondent’s advice by continuing with the fat-free diet and consuming small quantities of pureed fruit and vegetables and Gatorade. She was unable, however, to keep any food down. She was vomiting dark brown liquid at regular intervals. She consulted with the first respondent on 3 October 2003 and was advised to keep exercising.

40. On 4 October 2003 the applicant sought care elsewhere and was admitted to the Mater Private Hospital where she was treated for dehydration and given intravenous fluids.  The applicant had no-one at home to look after her and was so worried about her condition that she then admitted herself to a hospice, Spendlove House, on 7 October 2003 where she remained as an in-patient until 10 October 2003.  They gave her a letter to give to Dr Broadbent outlining her condition.

41. The applicant consulted with the first respondent again on 10 October 2003 and ultimately came back under his care. She said he scoffed at the letter. She was frightened and prepared to trust him and was re-admitted to the hospital for one night on 12 October 2003 where she was treated with intravenous fluids, given small quantities of liquid and advised to continue exercise and start drinking 50ml of fluid per hour.

42. The applicant consulted with the first respondent again on 20 October 2003 and informed him that she had vomited persistently since the BPD operation. He referred her to have a gastrografin test performed and this revealed that she had a bowel obstruction. She was again admitted to the hospital on 22 October 2003 and was diagnosed by the first respondent as having a partial bowel obstruction caused by an internal hernia. The first respondent performed two surgical operations in an effort to remove the bowel obstruction on 23 October and 30 October 2003 respectively. The applicant was moved to the intensive care unit on 7 November 2003. She was fed with a naso-gastric tube and, at the request of Dr Broadbent, was seen by a psychiatrist owing to her deteriorating mental condition and exhibiting abnormal personality traits. The psychiatrist told her that he thought BPD surgery was barbaric and mutilating.

43. Dr Broadbent apologised to her and refunded the gap payment, ie the excess over the Medicare refund, to help her out financially but told her that her body was the problem, not what he had done. He told her that her body was different from other people’s and so he had to “replumb” her differently. She accepted his explanation. He regarded the surgery as having been successful as she became thin.

44. The applicant recalls requesting food on 14 November 2003 and being placed by the first respondent on a diet which consisted of 3 x 50ml meals of fat-free pureed vegetables and fruit per day. She was unable to eat this food. The applicant discharged herself from hospital on 19 November 2003. At home she attempted to adhere to the fat-free diet and exercise regime and was eventually able to eat small quantities of soup.

45. From July 2005 the applicant consulted a general practitioner, Dr Pamela Douglas. Her blood test results showed she was severely malnourished so she explained to Dr Douglas that she had had surgery that had gone wrong. She told her about the surgery performed by Dr Broadbent. Notwithstanding her complaints about the surgery she still accepted what Dr Broadbent had told her: that it was her body that was to blame for her complications, not Dr Broadbent. She became very depressed. Indeed her anxiety and despair were evident when she was giving evidence.

46. In August 2005, she discovered information about the importance of protein intake when she was treated by dieticians at the Eating Disorders Clinic at the Royal Brisbane Hospital in August 2005.  Since then she has continued to follow Dr Broadbent’s advice, since he is the medical practitioner she has seen who specialised in BPD surgery, but has also tried to include more protein in her diet as advised by the dieticians. 

After 19 September 2007

47. 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. In particular she read an article in The Australian.  Prior to this, the applicant believed that her post-operative complications were attributed to her inability to comply with the first respondent’s rigorous exercise regime and the fact her body was different to that of others and was therefore reacting differently.  She believed that she was the only person to have suffered post-operative complications and as a result of this, felt ashamed and reluctant to speak about the operation. 

48. The applicant agreed in cross-examination to being a patient at the hospital at the time of the death of Ursula MacLeod, a patient of Dr Broadbent. She asked the first respondent about her death and was told that Ms MacLeod’s death had nothing to do with BPD surgery but was a result of an unexpected reaction to herbal tea.

49. The applicant made complaints to the Health Quality and Complaints Commission on 4 and 8 October 2007 after speaking to Ursula MacLeod’s daughter, Leesa MacLeod, who had been featured in the media with regard to Dr Broadbent. Her first complaint was about the surgery conducted on her by Dr Broadbent in April and September 2003 and the ongoing effects on her health. From that time on she believed that Dr Broadbent had failed to exercise an appropriate level of skill in the BPD surgery that he had performed. The basis of her second complaint was that Dr Broadbent appeared on television and was interviewed regarding his surgery skills. She alleged he discussed her details and medical history and showed the television crew her medical records. She at no time gave him permission to do that.

50. The applicant first consulted a solicitor from Maurice Blackburn Lawyers on 18 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.

51. 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 28 November 2007.  Solicitors for both the first respondent, Flower & Hart, and 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. 

52. On 22 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; she had been told by the first respondent that her post-operative complications were due to a reaction by her own body which was different to others and had thought that she was the only person who had suffered post-operative complications and did not consider that they may be due to negligence until she saw media reports in September 2007.

53. Ms Marsden’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 30 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.

54. 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 applicant developing surgical site infection by not undertaking adequate preparation for surgery and adequate post-surgical treatment; and

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

55. 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.

56. 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. 

57. 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.

58. Specifically in relation to the applicant, Dr Woods thought that Dr Broadbent had erred in recommending the BPD surgery as she was not an appropriate candidate. At the time of the surgery the applicant’s Body Mass Index (BMI) was 36.4 kg/m2 despite the standard selection criteria for patient selection being a BMI of more than 40 kg/m2 or 35 kg/m2 where there are significant co-morbidities. The nutrition and dietary advice and treatment was below the standard to be expected of a competent and skilled surgeon.

59. Dr Woods was also of the opinion that Dr Broadbent had acted illogically when the applicant presented to him with obstructive jaundice in June 2003 due to stones in the bile duct by unnecessarily performing a laparoscopic cholecystectomy on the applicant, ie removal of the gall bladder rather than removal of the stones in the bile duct which were later removed by an ERCP. The gall bladder could have been removed during the BPD surgery. Removing it first meant an unnecessary operation was carried out and delayed what was necessary ie removal of the stones in the bile duct.

60. According to Dr Woods, Dr Broadbent also failed to investigate adequately the applicant’s symptoms following the BPD operation or provide appropriate nutritional support even after she had undergone two further laparotomies.

61. The memorandum from Dr Woods was supported by a report from a psychiatrist, Dr Alston Unwin, about the inappropriateness of the applicant, who suffers from dissociative identity disorder, as a candidate for this type of elective surgery and the psychological effect of the surgery on her.

62. 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.

63. 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:

• She had consistently experienced symptoms of ill-health following the surgery;

• She had been unable to engage in any active employment since June 2004 and had been practically unable to work at all since the operation;

• She had at times been critically ill;

• The first respondent had caused damage to her body and extreme pain which he had been unable to rectify notwithstanding repeated surgical procedures;

• She had not suffered any of the complications she suffered following the BPD surgery before that surgery;

• She had been offered an apology and refunded money by the first respondent;

• She believed that her BPD surgery “went wrong”, was a “form of mutilation” and that the first defendant was an “unethical surgeon”.

64. 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.

65. 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 reading the article in The Australian, Ms Marsden was unaware 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. 

66. 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, based on what Dr Broadbent had told her, that it was her body that was at fault. She knew that another patient had died but believed that was because of her failure to follow his instructions. Although she consulted other medical practitioners she trusted and relied on Dr Broadbent. It is true that a psychiatrist had told her that in his opinion BPD surgery was mutilating and barbaric; but he did not say that the surgery had been performed negligently or that her treatment had fallen below the standard of a competent surgeon. The surgery was performed by an apparently reputable surgeon in an apparently reputable hospital. The surgeon gave her an explanation for her complications that she accepted. She was very vulnerable psychologically and this goes some way to explaining the level of trust she gave Dr Broadbent.

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 defendant 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 25 November 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 providing one rather two antiseptic showers (one the night before and one the day of the surgery);

• By failing to organise a consultation with a dietician, and failing to question the surgeon or ask a senior nurse manager to intervene to obtain input from a dietician;

• By failing to notify a senior nurse and the surgeon of abnormal blood results; and

• By failing to ask for assistance from a senior nurse manager or a mental health nurse in light of the applicant’s suicidal ideation.

78. 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.

79. The solicitors for the second respondent have identified and contacted all the relevant 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. They were Melissa Grant, Rose Unicomb and Judith Bryceson.

80. Ms Grant is able to explain what the usual practice was with respect to patients at that time. She recalled the applicant, in particular what she looked like, her name and that she was mentioned at some point during nursing handover. She did not have any recollection, independent of the patient file, of her involvement in the applicant’s care. She did not recall whether or not she had any concerns about the applicant’s care or whether any concerns were raised with her by someone else. If she had any concerns she said she would have raised them with the Nurse Unit Manager who was responsible in the daytime or the level 2 nurse who was responsible in the evenings. 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. She believed that anything of significance to the treatment and care of the applicant would have been recorded in the notes. She conceded, however, that she would not now have a recollection of anything omitted from the notes.

81. Ms Unicomb did not have an independent recollection of the applicant but was able to comment on what she was likely to have done in the event she was concerned about a patient. She was an enrolled nurse and so would have discussed any concerns with the registered nurse with whom she was working. If appropriate, she would have suggested that the registered nurse raise her concerns with the nurse supervisor on duty. It was not, however, part of her job as enrolled nurse to raise matters with anyone other than the registered nurse. 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. She believed that anything of significance to the treatment and care of the applicant would have been recorded in the notes.

82. The Nurse Unit Manager at the time was Judith Bryceson. She worked at the hospital from 1989 to 2007 and was a Nurse Unit Manager between June 2003 and May 2007. Ms Bryceson was able to give detailed evidence of the nursing regime required by the first respondent including pre-operative and post-operative care. For each patient a pre-operative checklist was completed as well as a comprehensive care-track document for BPD surgery which tracked the patient’s care before and after surgery.

83. 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 reduces the prospect that the nursing staff will have to rely on their memory.

84. Ms Bryceson’s evidence was that Dr Broadbent had a very strict regime for how he wanted his BPD surgery patients to be nursed, particularly in relation to diet and mobilisation. Dr Broadbent required patients to mobilise as soon as they were awake and stable after surgery. He also had a very strict regime with regard to fluids and diet involving initially ice to suck up to 30mls per hour, graduating to clear fluids at 30mls per hour, graduating to 50mls of fat-free pureed diet three times a day plus clear fluids at 30mls per hour. He was very clear that his instructions in relation to the patient’s diet were to be followed exactly.

85. Ms Bryceson’s evidence was that prior to going to surgery Dr Broadbent’s patients were to be showered and the operative area shaved or clipped. She did not recall whether this was the case for the applicant but the general practice was that the night before surgery Dr Broadbent’s patients were showered with an antiseptic solution and this was repeated on the morning of their surgery.  Also generally the patient’s hair was removed from their nipples to their pubic area with a pair of clippers.

86. Ms Bryceson said that after surgery Dr Broadbent was very precise and strict about what care was to be provided to his patients. Any concerns that a nurse may have had about a patient’s condition for example vital signs, abnormal pathology results, food intake or low outputs had to be either raised with her and she would contact the doctor, or with the doctor directly. Neither she nor any other nurse was permitted to involve other practitioners in the patient’s care without the approval of Dr Broadbent.

87. Her evidence regarding the applicant is that she remembered her name but could not recall any specific details about her care at the hospital or any queries being raised about her. She agreed in cross-examination 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 would have documented any concerns that she had or that were raised by other staff. She would also have documented it if the nursing staff thought the patient needed some other care or had requested another opinion. She conceded in re-examination, however, that it was possible that something may have been missed.

88. 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.

89. 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.

90. 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).

91. 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.

92. 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.

93. 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.

94. 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 22 September 2003.

95. 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.

96. 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.

97. 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.

98. 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.

99. 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.

100. 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.

101. 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.

102. 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.

103. 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.

104. 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.

105. 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”.

106. 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 have some recollection of the applicant;

• The applicant had three admissions to the hospital;

• Despite Ms Grant’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 the nurses relevantly involved in her care;

• 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;

Conclusion

107. 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

108. 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.