Caroline Shaw v Broadbent[2010] QSC 433

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 15 October 2008.

2. On 15 October 2008 Caroline Shaw 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, Australian Hospital Care (Pindara) Pty Limited trading as Pindara 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 first arose when the applicant underwent surgery on 7 September 2005 and so the period under s 11(1) of the Act expired on 7 September 2008, slightly more than a month before she commenced proceedings.  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.  Not all of her action is affected by s 11 of the Act; however, it does affect that part of her action which relates to injury caused before 15 October 2005.

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 15 October 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 first respondent has 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. 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, 15 October 2007, ie one year before the action was commenced. 

14. The second respondent does not oppose the application on that basis. The application is opposed by the second respondent on two grounds: on the ground that the plaintiff has not established that she has a right of action apart from the defence founded on the expiration of the limitation period; and on the ground of prejudice.

15. Section 31(2)(b) of the Act provides that where, on an extension application to a court by a person claiming to have a right of action to which s 31 applies, it appears to the court that there is evidence to establish the right of action apart from the effect of a defence founded on the expiration of a period of limitation, then the discretion to grant the extension application arises.  Prejudice is relevant to the exercise of that discretion.  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”.

16. 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 15 October 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.

17. The second question to be examined is whether the court is satisfied that there is evidence to establish a right of action against the second respondent. If that question is answered in the affirmative, then the occasion to exercise the discretion to grant the extension application against the second respondent arises. If that question is answered in the negative, then the extension application against the second respondent will be dismissed.

18. If the second question is answered in the affirmative, the third 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

19. 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 15 October 2007.

20. 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)(b)).  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.”

21. 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. 

22. 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.

23. 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.

24. 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).

25. 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

26. 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 15 October 2007, it is necessary to examine the facts of the matter both before and after that date.

Before 15 October 2007

27. The applicant, Caroline Shaw, formerly known by her married name, Caroline Ceccato, was born on 9 August 1971 and underwent bilio-pancreatic diversion (BPD) surgery conducted by the first respondent, Dr Broadbent, at the second respondent hospital on 7 September 2005. At the time of the surgery she was 34 years old, a mother of four children under the age of thirteen and was studying a Bachelor of Architecture at the University of Queensland.  She deferred her studies so that she could undergo the surgery. 

28. The applicant said that her pregnancies caused her to put on weight and that she was unable to lose this weight despite trying a variety of diets. She found out about the first respondent on the internet after being advised by her general practitioner to do some research into weight loss options. She told her general practitioner, Dr Jey Kumar of Loganholme Medical Surgery, about the first respondent and obtained a referral to consult him.

29. Prior to undergoing the surgery the applicant had a medical history which included sleep deprivation, asthma, gall and kidney stones and depression. She had been prescribed anti-depressants from time to time.

30. 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.

31. The applicant’s first consultation with Dr Broadbent was in April 2005. She weighed approximately 180 kilograms at the time and, at the consultation, Dr Broadbent diagnosed her as having a fat storage disease which prevented her from losing weight. The applicant said that Dr Broadbent described BPD surgery as the “Rolls Royce” of weight loss surgery and told her that the only way her fat storage disease would be cured would be if she underwent the operation.

32. Following her first consultation, the applicant regularly 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. As a condition of undergoing the surgery the applicant was also referred to Lee Quist, a former patient of Dr Broadbent and obesity counsellor.

33. In mid-May 2005 the applicant commenced a low-fat vegan diet and exercise regime as recommended by the first respondent. She continued to attend consultations with the first respondent and was repeatedly reminded of the importance of following his instructions with respect to diet and exercise. In addition, she was made aware by the first respondent that he was both a barrister and surgeon and said that she was very impressed by this. The applicant was led to believe that any problems experienced following the surgery would be the result of what the first respondent termed “patient error”.

34. Prior to the surgery on 4 July 2005 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 recalls 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.

35. The applicant was admitted to the hospital on 6 September 2005 and underwent the BPD surgery together with a sleeve gastrectomy, duodenal switch and appendectomy performed by the first respondent on 7 September 2005. She weighed 148 kilograms at the time of the surgery, a loss of 32 kilograms from when she first consulted Dr Broadbent.

36. During the period immediately after the surgery, the applicant recalls experiencing some lung pain but feeling “quite good”. She was able to move around. Around 13 September, however, she recalls feeling weak and being unable to keep food down. She was discharged on 14 September.

37. The applicant was cared for by her mother at home. She felt ill and could hardly eat anything at all. She consulted with the first respondent on 19 September 2005 complaining of deep pain and tiredness. He told her that she should continue with the diet and exercise program.

38. The applicant consulted the first respondent again on 25 September 2005 as she had developed a high temperature and was unable to eat because of nausea. She also had trouble walking and holding her head up. She was admitted to the hospital a second time and diagnosed with streptococcus (“the second admission”). A chest x-ray showed she had a moderate left pleural effusion with overlying basal collapse/consolidation as well as mild consolidation in the right middle lobe. She was transferred to the Intensive Care Unit of the hospital where her chest was drained. The applicant was discharged from the hospital on 7 October 2005 and instructed to continue with exercise. That advice was repeated at two further consultations on 24 October 2005 and 31 October 2005.

39. The applicant was subsequently admitted to the hospital on 1 November 2005 after her husband telephoned the first respondent concerned about her condition (“the third admission”). The applicant was diagnosed on 5 November 2005 with a fistula between her lower bronchus and upper stomach. She was placed on naso-gastric feeding and antibiotics and underwent blood transfusions. The applicant was advised by the first respondent against surgery to repair the fistula and was told that it would close spontaneously.

40. Around 10 November 2005 the applicant’s husband became so concerned about her condition that he requested another doctor, Dr Rutherford, take over her care. Dr Rutherford arranged for a dietician, Julie Albrecht, to review the applicant regularly and care for the applicant until her discharge on 7 December 2005.

41. After her discharge the applicant sought the assistance of Dr Carmody for ongoing care and management.

42. In April 2006 when she attended an OSSIE meeting, the applicant learned of the death of Roseanne Mafi, a patient of Dr Broadbent who had also undergone BPD surgery. The applicant had met Ms Mafi previously during her first admission to the hospital. From what she was told at the meeting, the applicant formed the view that Ms Mafi had died of an infection following her failure to comply with the first respondent’s instructions about nutrition and exercise.

43. The applicant was undergoing great turmoil in her personal life. There was a history of domestic violence in her marriage. Her evidence was that she endured many years of emotional and sexual abuse and in August 2006, she and her children left the family home and moved in to her parents’ garage. She subsequently took out a Domestic Violence Order against her husband.

44. The applicant has had ongoing problems since she underwent the BPD surgery including bowel obstructions, chronic wind pain, cramping and incontinence. She also suffers from debilitating fatigue, lack of concentration and constant muscle aches and pains. In 2007 the applicant attended twice at the emergency department at Logan Hospital because of bowel obstruction.

45. The applicant initially believed that most of her problems were attributable to what the first respondent described as “patient error”, such as the failure to comply with the first respondent’s diet and exercise program. She did not believe, however, that the pain in her lungs was caused by any error on her part. She nevertheless had “every faith” that she would recover completely.

46. Significantly, on 19 October 2006 the applicant consulted a solicitor, Clare Creevey of Clewett Corser & Drummond Lawyers, about potentially making a negligence claim against the first respondent. The applicant said that she attended Ms Creevey’s office with her mother. She was told that the process for making a claim was long, difficult and potentially expensive as she could be liable for the first respondent’s costs if she lost.

47. Clewett Corser & Drummond Lawyers wrote to the applicant on 19 October 2006 referring to discussing a “potential claim for damages for personal injuries arising out of medical treatment provided to you by Dr Broadbent and in particular the surgery performed by him on 7 September 2005 and his treatment of you following that surgery”. In that letter, Ms Creevey said that she understood the applicant’s concerns to be that –

• She was misled with respect to the risks involved in BPD surgery;
• She was not provided with appropriate information about alternative weight loss procedures;
• The surgery was performed negligently;
• If investigations had been performed in a reasonably competent manner the defect that was the cause of her symptoms would have been identified with the result that her experience of symptoms would have been for a lesser period of time and would have less severe and permanent repercussions; and
• Dr Broadbent’s supervision post-surgery was inadequate giving rise to malnourishment and an inability to recover from complications.

Ms Creevey told the applicant the cost of obtaining an independent medical report to support her claim.

48. The applicant did not recall reading this letter and said she was not living at the address it was sent to at the time. She did, however, recall receiving a letter from Clewett Corser & Drummond in October 2006 and “throwing it on the floor” as she was unable to read it owing to her poor mental state.

49. In an email to Ms Creevey dated 29 October 2006 the applicant explained that she was unwilling to proceed with the action against Dr Broadbent as the “stress of worrying about the money would kill me”. The applicant also said that she could not go ahead with the action as the three concerns about her case, as outlined to her by Ms Creevey, were legitimate and would be hard to overcome. This email suggests that the applicant did read Ms Creevey’s letter of advice dated 19 October 2006. In that letter, Ms Creevey warned the applicant that she would have to commence action within three years of the cause of action arising or lose her right to sue Dr Broadbent. She did not give her any advice about suing the hospital.

50. Ms Shaw’s evidence as to why she did not take proceedings against Dr Broadbent at that time was that she doubted she had a case as it had been reinforced to her on many occasions that if things went wrong it was because of patient error. She did not have the emotional or physical energy to focus on anything apart from regaining her health and returning to work. The applicant also said that at the time she was in a very poor financial situation and was concerned about looking after her children as a single parent. She also knew that Dr Broadbent was a barrister and was “truly terrified” that he would make things very difficult for her. She did not think it was worth putting herself and her family through more suffering if she did not have a very good chance of being successful.

51. She accepted the solicitor’s advice that “there were a few big risks I had which could prevent me from establishing a case.” Those risks were identified by her solicitor as issues she would need to overcome in order to succeed. They included that the surgery might have been appropriate in her circumstances, that she signed a consent form which clearly identified a multitude of risks including those which ultimately did arise as complications for her, and she was well aware of the risks of the surgery from research she undertook on the internet yet still chose to proceed.

52. This advice came to Ms Shaw when she was in a position of great stress because of her matrimonial problems, she was living in her parents’ garage and had responsibility for her four young children. But more significantly she was suffering physically and psychologically because of the surgery carried out by Dr Broadbent and his treatment of the complications that arose from that surgery. When she gave evidence in court on this application she was pale, quiet and not assertive, consistent with being a person who was overawed by Dr Broadbent and fearful of suing him when she thought she was at real risk of losing. The first respondent urged the court to draw an adverse inference from the applicant’s not calling Ms Creevey and the applicant’s mother to give evidence. However, I have relied substantially on the written records and the objective facts and my assessment of the applicant. In those circumstances the evidence of Ms Creevey and the applicant’s mother would have added little.

53. Ms Shaw consulted with a general practitioner, Dr Plint, in June 2007 and told her of all of the problems caused to her by the surgery performed by Dr Broadbent. She told Dr Plint that she had decided not to sue because she did not want to tie herself up with legal action and wanted to get on with her life.

Events after 15 October 2007

54. The applicant said that she was not aware that anyone else was pursuing a claim against the first respondent until around September 2008 when her partner heard through the media about a number of complaints made against the first respondent and told her about them. The applicant claims that it was only then that she linked her ongoing stomach problems with the BPD surgery. The applicant said that although she did not feel emotionally capable she was convinced by her partner that it would be worthwhile to speak to a solicitor.

55. The applicant alleged that prior to September 2008 she believed that her post-operative complications were unique and mainly her own fault for doing the wrong thing and not fully complying with the first respondent’s instructions. She also said that she was terrified of the first respondent as he was both a barrister and surgeon and this appears to have deterred her from instigating action against Dr Broadbent prior to September 2008.

56. The applicant consulted with a solicitor from Maurice Blackburn Lawyers in relation to a medical negligence claim. On 9 October 2008 the applicant’s solicitors served an Initial Notice on both the first respondent and second respondent pursuant to the Personal Injuries Proceedings Act 2002. 

57. Ms Shaw’s claim and statement of claim against Dr Broadbent and the hospital was filed on 15 October 2008. In her statement of claim, as amended 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.

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

• The first respondent failed to perform the BPD surgery to the standard of a reasonably competent surgeon;

• The applicant 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; and

• 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 streptococcus milleri infection by failing to undertake adequate preparation for surgery and failing to undertake adequate post-surgical treatment.

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

59. 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.

60. 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. 

61. 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.

62. 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 a greater risk of infection. According to Dr Woods, an example of Dr Broadbent’s incorrect advice was that he informed Ms Shaw that fat is converted to glucose. This was incorrect as only protein can be turned into glucose. A further error was that Dr Broadbent advised the applicant to adopt a vegan diet yet did not direct her towards appropriate protein-rich foods.

63. In addition, Dr Woods was of the view that even more significantly, Dr Broadbent failed to adequately treat and investigate the applicant despite her presenting post-operatively with obvious symptoms of infection. Because of delayed treatment of the applicant’s gastric leak and subphrenic collection, she developed a gastro-bronchial fistula.

64. Dr Woods was also of the opinion that the applicant was at a significant disadvantage in coping with her post-operative complications as she was malnourished. At no time was she provided with adequate nutrition whilst under the care of Dr Broadbent and it was only until she came under the care of Dr Rutherford and a dietician that she finally received nutritional support.

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 15 October 2007.

66. 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.

67. 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.

68. The first respondent submitted that well prior to September 2008 the applicant was aware that she may have had a right of action because:

• After the BPD surgery she became seriously unwell with post-operative complications;

• She elected not to return to the first respondent’s care after 10 November 2005 and allowed her husband to seek out Dr Rutherford to take over her management and treatment at the second respondent hospital;

• In February 2006 she saw a counsellor at the University of Queensland and told her that she had experienced severe complications as a result of botched surgery.  The applicant denied in cross-examination using the word “botched” but accepts that she may have said something to give the counsellor that impression;

• She sought legal advice from a solicitor, Clare Creevey, in October 2006 in respect of a potential negligence action and was aware of her ability to commence a common law claim for personal injury or to complain to the Health Rights Commission; and

• She consulted with her general practitioner, Dr Plint, on 18 June 2007 and advised her that she made a decision not to sue over her abdominal problems as she had chosen to undergo the operation in the first place and wanted to get on with her life and not tie herself up in legal action.

69. It is relevant here to note, as Keane JA held in HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 at [44]:

“… it is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.”

70. The material facts of a decisive character were found in the advice of Dr Woods: the negligent, indeed apparently grossly negligent, treatment of her by Dr Broadbent had been responsible for the complications she had suffered after surgery and that those complications had been inadequately investigated and wrongly treated. She then knew 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.

71. Had she taken all reasonable steps to find out that fact? Although she suspected that Dr Broadbent was negligent and it was this negligence that had caused her injuries, she still believed that it was her failure to follow his instructions that caused her continuing post-operative symptoms and complications. She was a very vulnerable person as could be seen when she gave evidence. She took advice from a solicitor but that advice led her to believe that there was an unacceptable risk of losing if she commenced litigation against Dr Broadbent who had emphasised to her that he was a barrister as well as a surgeon. She had taken all the steps that it was reasonable for a person in her position to take to discover the material fact of a decisive character which was found in the advice of Dr Woods, and yet had not found that out. Only after that did she know that an action against the first respondent had 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 she ought in her own interests and taking her circumstances into account to bring an action on that cause of action.

Conclusion

72. 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 15 October 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 15 October 2008.

Extension application against the second defendant

73. The extension application against the second respondent requires an examination of two questions: first whether there is evidence to establish a right of action; and secondly, whether the court’s power to extend time should be exercised in the face of the prejudice that the second respondent said it would suffer if the extension application were granted.

Right of action against the second defendant

74. In order to establish a right of action, the applicant must show that there is evidence which can reasonably be expected to be available at trial which, if unopposed by other evidence, would be sufficient to prove her case: see Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 435; Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549 at 559 [29]. 

75. The applicant relies in part on the expert evidence of 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.

76. In a report dated 24 November 2009, Ms Sharp gave her overall opinion, set out in detail the applicant’s history during her three admissions to the hospital, and gave her opinion on the questions asked by the applicant’s solicitors:

(a)What is the role of a nurse in the context of caring for a patient both pre- and post-operatively for abdominal surgery?

(b)Whether the diet and nutrition advice as administered by nursing staff at the hospital during Ms Shaw’s stay for the BPD surgery and during her subsequent post-operative admissions fell below a reasonable standard of care taking into account standard hospital policy and procedures regarding the adequate care of a patient?  What is the role of a nurse in this regard?

(c)What aspect of the nursing care fell below a reasonable standard to be expected of a private hospital in Australia during the year Ms Shaw was admitted (2005)?

(d)Whether given Ms Shaw’s condition as stated in the hospital notes following the BPD surgery she should have been discharged from hospital on 14 September 2005 and 7 October 2005?

(e)If Ms Shaw should not have been discharged on 14 September 2005 and 7 October 2005 what treatment or action should have been provided by the nursing staff?

(f)Did the failure by the nursing staff to provide adequate treatment fall below a reasonable standard to be expected of nursing staff at a Private Hospital in 2005?  If so in what way?

(g)Has the failure to provide reasonable treatment by the nursing staff caused or materially contributed to Ms Shaw’s injuries?  If so in what ways?

What is the role of a nurse in the context of caring for a patient both pre- and post-operatively for abdominal surgery?

77. Ms Sharp’s report set out that the role of a nurse pre-operatively in caring for a patient who was to undergo major abdominal surgery such as BPD surgery might include giving a bowel preparation to clean out the intestines to reduce the possibility of contamination of the surgical field if the bowel is nicked during surgery; removal of body hair from the relevant area by clipping, as shaving is a risk factor for post-operative infection; antiseptic showers prior to surgery, the hospital’s care track recommends two such showers, one on the day of admission and one on the day of surgery; giving an anti-coagulant injection and application of thrombo-anti-embolic stockings to the lower limbs to prevent deep vein thrombosis; and ensuring that a dietician is involved constantly during the admission, including a consultation with the patient prior to surgery, and informing senior nursing staff if there is an objection to this by a doctor, the family or the patient.

78. The post-operative role of nursing care involves focusing on the patient’s intake and output; managing pain; noting when the patient passes flatus; checking the surgical site, naso-gastric aspirate and the wound drains; and observing temperature, blood pressure and blood test results. Although nurses are not expected to interpret blood test results, in Ms Sharp’s opinion they can be expected to question abnormal results and notify the surgeon and nurse manager. The nursing staff should report to the surgeon, wound care and infection control consultant and senior nurse abnormal temperatures and raised white cell count as these are indications that a patient is developing or has developed a surgical site infection. Consultations with a dietician should continue post-operatively and should be arranged to occur following discharge to make decisions regarding food and fluid intake. The nurse, Nurse Unit Manager or discharge nurse should make arrangements for a community nurse to care for any patient being discharged with a drain in situ or with wound dressings that require changing.

Whether the diet and nutrition advice as administered by nursing staff at the hospital during Ms Shaw’s stay for the BPD surgery and during her subsequent post-operative admissions fell below a reasonable standard of care taking into account standard hospital policy and procedures regarding the adequate care of a patient?  What is the role of a nurse in this regard?

79. Ms Sharp qualified her opinion by saying that she was not qualified to comment on the diet and nutrition advice and that she had not seen the hospital policy. However, she said that usual care for a patient undergoing such abdominal surgery would be to request consultation with a dietician. The nurse’s role is to ensure that a dietician is involved throughout the patient’s stay in hospital and if there is an objection to this by a doctor or the patient or her family to inform senior nursing management.

What aspect of the nursing care fell below a reasonable standard to be expected of a private hospital in Australia during the year Ms Shaw was admitted (2005)?

80. Ms Sharp expressed the opinion that the care provided by the staff of the second respondent hospital fell below a reasonable standard expected of a private hospital in 2005 in the following ways:

• By shaving rather than clipping the applicant’s body hair (which increased the risk of post-operative infection) and failing to provide two antiseptic showers prior to surgery contrary to the hospital’s care track;

• By failing to organise a consultation with a dietician;

• By failing to question the surgeon about input from a dietician;

• By failing to ask a senior nurse manager to intervene and obtain input from a dietician contrary to ANMC^[5] Elements 4.2 and 4.3;

• By failing to notify the surgeon that the applicant’s blood results were available on the ward and were normal or abnormal;

• By failing to notify senior management and Dr Broadbent or another doctor about all the abnormal results;

• By failing to notify a senior nurse or the surgeon of the low haemoglobin.

Whether given Ms Shaw’s condition as stated in the hospital notes following the BPD surgery she should have been discharged from hospital on 14 September 2005 and 7 October 2005?

81. Ms Sharp accepted that the applicant was fit enough for discharge post-operatively on 14 September 2005. Although there were no arrangements made for her to consult a dietician, there was no need for her to remain in hospital. However, Ms Sharp took issue with the applicant’s discharge on 7 October 2005 following her second admission to the hospital. Her stay in hospital had involved a period in the intensive care unit with a streptococcus milleri sepsis and a pleural effusion which required drainage and her condition on the day of discharge was only mediocre. She still had a cough, was nauseated, required anti-emetics and was complaining of pain. There was no further mention of the five sores which she had on her head prior to the BPD surgery. In her overall opinion, Ms Sharp had expressed the view that a nurse acting with reasonable care would have notified the surgeon of those sores prior to her undergoing the BPD surgery as they might have increased the risk of a post-operative surgical site infection. Although there were many abnormal blood results between 1 and 5 October, no blood results were recorded after that date in spite of the fact that there is no reason to believe that they could have been normal on the day of discharge. Dr Broadbent failed to mention any of the abnormal results in his progress notes.

If Ms Shaw should not have been discharged on 14 September 2005 and 7 October 2005 what treatment or action should have been provided by the nursing staff?

82. Ms Sharp said that the applicant seemed to be fit for discharge on 14 September 2005, but certainly not on 7 October 2005. Ms Sharp expressed the opinion that nurses could have reported the abnormal blood results to Dr Broadbent and/or senior nursing management and should have insisted that she not be discharged without some assurance that she would improve at home under the care of her general practitioner and that a dietician was involved post-discharge.

Did the failure by the nursing staff to provide adequate treatment fall below a reasonable standard to be expected of nursing staff at a PrivateHospital in 2005?  If so in what way?

83. Ms Sharp said that her criticism was not so much about the treatment the nurses provided but rather that they did not ask senior nursing management to intervene, help or advise on what to do when the applicant’s blood results were so abnormal; nor did they ask senior nursing management to insist on input from a dietician or on what to do when she was being discharged home when still very ill.

Has the failure to provide reasonable treatment by the nursing staff caused or materially contributed to Ms Shaw’s injuries?  If so in what ways?

84. Ms Sharp expressed the opinion that had the applicant not been discharged home with very abnormal blood results on 7 October 2005 and had nursing staff advocated for her by discussing the situation with senior nurse managers, asking for a second opinion, then the outcome for the applicant could have been much better.

85. However, there was evidence which was not to similar effect on some of the matters raised by Ms Sharp. The second respondent’s solicitor spoke to Dr Woods on 27 and 30 March 2010. He said that the applicant’s post-operative infection “bore absolutely no relationship to whether the plaintiff was given a pre-operative antiseptic shower, whether the skin was clipped or shaved prior to surgery or whether or not the patient may have had some sores on her head at the time of her admission to hospital for surgery.” He also expressed the opinion that it was not within nursing expertise to comment on the cause of the applicant’s intra-abdominal sepsis. He said that a surgeon would not be troubled by a moderate drop in haemoglobin and albumin levels such as happened to the applicant after her BPD surgery. He said he would not expect the surgeon to be specifically notified of these results or expect that they should be brought to his attention as they fell within normal expectations after this operation.

86. When cross-examined Ms Sharp said her criticisms were restricted to the first two admissions. She agreed that she was not qualified to interpret blood results nor what the effect was of the sores on the applicant’s head. She maintained her view that Dr Broadbent, or in his absence, the nurse supervisor should have been informed of the applicant’s low haemoglobin. She said that the nurses should have informed the surgeon of the applicant’s being febrile, tachycardic, having abnormal fluid balance, shoulder tip pain and increased temperature all of which may be symptoms of abdominal infection.

87. Ms Sharp was cross-examined in detail about the nursing notes found in the chart on Ms Shaw’s second admission from 25 September to 7 October 2005. She did not criticise most of the nursing of the applicant on her second admission. For example, on the morning of 26 September the nurse noted that the patient had rigors and was shaking with pain in her legs and nausea. Her temperature was normal but her oxygen saturation level was down, her pulse rate was raised and the nurse was unable to obtain a blood pressure reading. On settling, the applicant’s oxygen saturation returned to normal, her pulse rate reduced and her blood pressure was normal but her temperature rose to 39.5°. The chart notes showed that Dr Broadbent was contacted and he ordered blood cultures. The chart notes also showed that QML was contacted immediately after that. The chart showed QML took blood cultures at 8.45am.

88. At 9.30am, the applicant was complaining of increased pain and continuous nausea. Dr Broadbent was contacted and made orders for analgesia and anti-emetics. QML took more blood at 12.05pm. There is no specific note of that being ordered by a doctor although Ms Sharp conceded that a blood test must be ordered by a doctor and so such an order must have been given demonstrating that not everything that occurs with regard to a patient will necessarily be recorded in the chart. At 6.45pm Dr Broadbent was noted as having seen the applicant and ordered treatment to continue and for blood tests to be repeated if her temperature rose above 38.5°.

89. The chart showed that the applicant was noted as febrile with a temperature of 38° at 2.00am. There was a note to that effect at 5am by which time her temperature had dropped to 37°. Dr Broadbent saw the applicant at 6.30am and noted her temperature was down that morning. He ordered a repeat of the blood tests to be conducted that day. That continued when the nursing staff recorded her temperature at 39° at 11.30am. The chart recorded that the nursing staff contacted QML for the blood cultures and faxed the pathology results to Dr Broadbent. Further blood cultures came in from QML at 12.20pm. The chart notes showed that QML was contacted at 12.30pm and that they were to fax results to Dr Broadbent.

90. At 6.30pm Dr Broadbent saw the applicant and made a provisional diagnosis as to the cause of the infection and prescribed antibiotics. At 8.30pm the chart recorded that the applicant “looks and feels terrible. Tachycardic, hypotensive & febrile.” The blood culture result was phoned to Dr Broadbent. Ms Sharp conceded she had no criticism of the treatment by the nurses or their communications with the surgeon on the second admission to that point.

91. At 6.00am on 27 September 2005, Dr Broadbent saw the applicant and recorded in her chart a range of investigations and treatment for her condition including consulting with other doctors and when he would review her next. At 6.30am the nursing staff recorded in the chart that the applicant felt unwell. She had pain in the left upper quadrant extending to her back and into her left shoulder, difficulty in breathing with the pain, was nauseated, her temperature had risen from 38.5° at 1.00am to 38.8°, she was tachycardic and her blood pressure had dropped to 88/54, her oxygen saturation level was poor and her urine output was low and dark brown orange in colour. There was no note that a doctor was specifically notified of these observations which were consistent with sepsis. Further pathology was taken by QML which was consistent with Dr Broadbent’s instruction on 25 September and with his notes at 6.00am that morning.

92. The chart then showed that Dr Andrew Jones attended the applicant later that morning in accordance with the note made by Dr Broadbent at 6am. Dr Jones recorded the results of his physical examination, the pathology results and the appropriate drug treatment. The applicant was then seen by Dr Lindsay at 12.30pm who recorded that he noted Dr Jones’s notes and had sighted the CT and discussed it with the radiologist. He also made further notes of his observations and a discussion with Dr Jones and with Dr Broadbent who said he would ask Dr Harrington to review and advise. At 7pm the applicant was seen again by Dr Broadbent. At 9.15pm extensive nursing notes were made. The applicant had a high temperature, low blood pressure and tachycardia persisted. She remained Nil By Mouth. She still had dark concentrated urine in spite of the fact that Dr Broadbent had ordered 500 millilitres to be given intravenously at 7.00pm. Her mother was in attendance and staying overnight. These were serious abnormal signs.

93. At 5.30 am on 29 September 2005, the chart recorded that her temperature remained elevated and she was suffering from tachycardia, was breathless with reduced oxygen saturation and still had dark concentrated urine. Although she was using pain relief regularly she had a pain score of 4 to 5 at rest and up to 7 on movement.

94. Counsel for the second respondent appeared to concede in the form of the question she asked, that the nurses had not notified a doctor during the night which was of concern to Ms Sharp who expressed the opinion that a patient should not have been left like that overnight without a doctor’s being notified. Ms Sharp did not, however, as she conceded, have the expertise to give an opinion as to what effect that failure to notify a doctor might have had.

95. The applicant was seen by Dr Broadbent at 6.00am. He recorded that she remained unwell with a raised temperature and left chest pain and that she was weak. He reviewed her fluid balance and ordered more blood tests. He noted that Dr Jones and Dr Lindsay would review her and he would return in the afternoon.

96. The applicant was seen by Dr Jones and the physiotherapist again on 29 September 2005. At 2.00pm, she had a temperature of 37.5° and a pulse rate of 100 to 120. Ms Sharp noted that that respiration rate was far too high for a patient who was lying in bed. Her oxygen saturation was very low which indicated that she was not breathing properly. Her urine measure was far too low. There was no note that a doctor had been notified of these signs. Dr Broadbent however then saw the applicant. His note said that she looked a “bit better”, her temperature was down and her pulse was down and that she felt better. He made no note of her oxygen saturation. The time was noted and the chart does not reveal whether he was phoned or not; but Ms Sharp said that with such abnormal results she would have expected to see it noted that Dr Broadbent had been notified if that is what happened. Ms Sharp conceded that the fact that it was not recorded in the notes did not necessarily mean that it did not happen.

97. At 1.30 am on 30 September 2005, the chart recorded that Dr Broadbent was notified of her huge fluid imbalance, urine output and vital signs. Ms Sharp was of the opinion that notifying Dr Broadbent on this and other occasions was appropriate but was critical of the failure to do so on other occasions. It must have become evident between 2.00pm on 29 September when her urine levels were as low as 10ml an hour and 1.30am on 30 September when she had a positive fluid balance of almost 8 litres that her fluid imbalance was increasing. Ms Sharp was of the opinion that Dr Broadbent should have been notified of this earlier than he was; and more should have been done for the applicant during the night.

98. The applicant was seen by Dr Broadbent at 6.00am on 30 September 2005. He noted her temperature was down and her blood pressure up and that her urine output was just satisfactory. She was noted by him to be very distressed with pain which prevented her from moving. She was frustrated, depressed and anxious. Given the problem with pain management he queried whether the Intensive Care Unit (ICU) would be an option. She was seen later that morning by Dr Jones who noted her temperature, her pain and her blood test results and further noted that he agreed that she should be put into ICU. Ms Sharp had no criticism of the care received in ICU.

99. Counsel for the second respondent cross-examined Ms Sharp as to the effect of shaving Ms Shaw and failing to give antiseptic showers. Ms Sharp conceded that it is difficult to say whether the organisms on the skin caused the infections Ms Shaw suffered after her surgery. However, policies had been put in place based on research which shows that if a patient is shaved or not given antiseptic showers, that patient is more likely to develop post-surgical site infection. An example of such a policy was the Infection Control Guidelines published in November 2001 by Queensland Health which Ms Sharp annexed to her report.

100. Ms Sharp was critical of the failure to organise or question the absence of a dietician. Ms Sharp said that most nurses would know that people need a balanced diet of fat, protein and carbohydrates so if a nurse sees that a person is not being given any of these components in their post-operative diet, they should question it.

101. Counsel for the second respondent questioned the applicant about her compliance with Dr Broadbent’s dietary requirements. She described herself as a most compliant patient. She accepted Dr Broadbent’s advice until Dr Rutherford took over her care. Although she was a most compliant patient, her responses to questions about what she would have done, had she been given advice, by a properly qualified dietician, that Dr Broadbent’s dietary advice would damage her health showed that she would have questioned his advice if she had been offered an alternative by a qualified person and may not have followed Dr Broadbent’s advice. That is reinforced by the fact that she no longer followed Dr Broadbent’s advice once she came under Dr Rutherford’s care and he arranged for her to be seen by a qualified dietician. In any event, she was not offered advice from a qualified dietician by Dr Broadbent or by the hospital while she was his patient.

102. She described in her evidence how she came under Dr Rutherford’s care:

“One of the nurses, I don't even know which one, placed a card with Dr Rutherford's details on my bedside table in the hospital for me to find and there was talk about the ward that it was very unprofessional to say things about a surgeon but the nurses would often go mutter mutter mutter mutter under their breath about things that were happening to me, and so one of them was bold enough and I'm sorry, I was too sick to know which one, but one of them was bold enough to say, ‘It doesn't hurt to get a second opinion, does it?  Just give this gentleman a ring and find out whether the care you're getting’ - I think she was very worried for my health and so my husband rang Dr Rutherford for some advice.”

103. Ms Sharp expressed the opinion that as the applicant was in a mediocre condition on 7 October 2005 the nurses should have insisted that she not be discharged without some assurance that she would improve at home under the care of her general practitioner and that a dietician would be involved post-discharge.

104. In support of the second respondent’s contention that there is no evidence to establish a right of action, counsel submitted that Dr Broadbent was not an employee of the hospital and was not remunerated by the hospital. In order to operate at the hospital, a doctor must be a credentialed Visiting Medical Officer (VMO). Dr Broadbent was a VMO at the hospital with clinical privileges for general surgery. There was no written contract for services between the hospital and a VMO for the provision of medical services. He invoiced his patients directly and whilst at the hospital, the applicant was treated pursuant to his orders. The hospital provided him with the necessary operating equipment and instrumentation, operating theatre nurses, a ward bed for admission of his patients and post-operative nursing care.

105. Janet Lloyd has been the Director of Clinical Services at the hospital since March 2003. According to Ms Lloyd’s affidavit, the VMO who admits a patient is considered by the hospital to have sole responsibility for decisions about the patient’s medical management. Prior to admission, a registered nurse from the hospital obtains a nursing history from the patient. The patient is required to bring a signed hospital consent form with her to the hospital on the day of admission. A patient is prepared for surgery by the hospital nursing staff in accordance with the VMO’s medical orders. Dr Broadbent’s medical orders included under the heading “Intravenous Fluids/Diet”, the instruction “As ordered.”

106. The nursing staff is required by the hospital to act under the instruction of the VMO in relation to medical management but also to act in accordance with relevant hospital policies. In the ordinary course of events, if other medical practitioners such as anaesthetists or physicians are required to be involved in the care of a patient while admitted, the patient is referred by the VMO to other doctors who are credentialed at the hospital. Even when other health care providers are unexpectedly needed to attend to a patient, this is ordinarily arranged by the VMO. The hospital does not employ dieticians to attend patients independently of a VMO.

107. In order for patients to be discharged from the hospital, they must first be medically cleared by the responsible VMO. The nursing staff of the hospital then undertakes a nursing discharge summary once directed to do so by the VMO. The applicant’s discharge summary was completed by the nursing staff on 14 September 2005.

108. Counsel for the second respondent submitted that there was nothing to suggest that the hospital breached its duty to take reasonable care in providing nursing services to the applicant or to act reasonably in credentialing the first respondent. For example, counsel submitted that Ms Sharp’s criticism that nurses elected to shave rather than clip the applicant’s body hair is irrelevant as Ms Sharp is not able to point to what adverse effect this had on the applicant. More significantly, the applicant’s expert Dr Woods accepted that the applicant’s post-operative infection “bore absolutely no relationship to whether the plaintiff was given a pre-operative antiseptic shower, whether the skin was clipped or shaved prior to surgery or whether or not the patient may have had some sores on her head at the time of her admission to hospital for surgery.” However, despite this and concessions made by Ms Sharp in her evidence there remained criticisms of the nursing care which cannot be determined on an application of this kind. If accepted, they would prove a failure to exercise reasonable care which caused increased suffering to the applicant. If her criticism of the failure to organise or the failure to question the absence of a dietician in the care of the applicant were accepted, then there is arguably a causal link between that failure and the applicant’s consequential suffering.

109. It is also the case that the hospital had the responsibility for deciding whether a particular doctor could perform surgery at the hospital and, if so, what surgery he or she was entitled to perform and on what conditions. This was the process of credentialing and privileging surgeons. Ms Lloyd’s evidence was that this was to ensure that all the safeguards were in place so that surgery was performed safely in the hospital without risk to the patient. It is the hospital that takes on that responsibility.

110. Correspondence between the hospital’s clinical review committee and Dr Broadbent demonstrated the role of the hospital in monitoring his BPD surgery. On 28 February 2005, Dr Andrew Cary, chair of the clinical review committee wrote to Dr Broadbent saying that the committee was happy to proceed with the credentialing of this “challenging surgical procedure” and had determined that they could see no problems with the performance of the surgery. They requested, however, more detail of his statistics with regard to his BPD surgery including the morbidity and mortality associated with the surgery. His response of 14 March 2005 addressed individual cases of problems that arose post-surgery blaming the problems on the patient or, in one case, the anaesthetist. His letter said he included a brief audit of the BPD surgery carried out by him, a couple of articles from recent editions of the Journal of Obesity Surgery and a draft article for the Royal Australasian College of Surgeons.  He also expressed disappointment with the investigation by the hospital clinical review committee saying its concerns “could only have been raised out of “gossip and ignorance”.  He asserted there had been breaches of “recognised administrative rules” in the way the investigation had been carried out.

111. In his reply of 20 April 2005 on behalf of the clinical review committee, Dr Cary reiterated his request for an audit which had apparently not been enclosed with Dr Broadbent’s letter and told Dr Broadbent that he had been allowed to perform BPD surgery at the hospital but it was appropriate for the clinical review committee to review the surgery “if a doctor was not permitted to perform a surgical procedure at one private hospital for whatever reason”.

112. On 5 May 2005, Dr Broadbent replied enclosing “further copy of the BPD audit” and saying that he was not allowed to continue surgery at Allamanda Private Hospital because the hospital’s head office determined they could not afford indemnity insurance for this type of operation.

113. With regard to credentialing, on 2 May 2005, Dr Clive Wellington, the Chief Medical Officer for Affinity Health wrote to Professor Paul O'Brien, at the Monash Department of Surgery seeking his advice on the credentialing of practitioners to perform BPD. He said there was a surgeon at the second respondent hospital keen to start doing BPD surgery but Dr Wellington had advised against it until they obtained advice from Dr O'Brien. This letter and its reply was copied to the chief operation officer, the director of the second respondent hospital and the chairman “National MAC”.

114. On 12 May 2005, Professor O'Brien replied saying that BPD surgery was a legitimate operation which was very effective but because it achieved its effects through malabsorption leading to long term nutritional problems it needed very careful and knowledgeable follow up of the patient. Affinity Health should not refuse to accredit the operation but it was appropriate to impose certain requirements on its performance: the need for special training, ongoing quality control with monitoring for at least the first two years to see that there was not an inappropriate level of peri-operative complications; and a multidisciplinary team in place.

115. The third condition is significant to this case so I shall set it out in full:

“This is undoubtedly an area of bariatric surgical practice where a multidisciplinary team is really needed.  The patients need to have more than just ongoing surgical care.  There needs to be dietetics advice, there needs to be monitoring of nutritional status and monitoring of health status by a physician.  There is a minimum, therefore, for the need for at least those 3 professional groups to be involved.”

116. Correspondence ensued between the director of the second respondent hospital and Dr Broadbent. She told him on 24 August 2005 that the requirement for a general physician to be involved in post-operative care of the patients was non-negotiable. She said:

“In the opinion of the Pindara Hospital Executive, the Credentialing Committee, and Dr Clive Wellington – Chief Medical Officer of Affinity Health, that the views of Professor Paul O'Brien were valid and did not hint at any bias against BPD.  The recommendations made by Professor O'Brien were general in nature and have been upheld by the Credentialing Committee of Pindara Private Hospital.”

117. Dr Broadbent reluctantly agreed to nominate a physician credentialed to the hospital. He was then credentialed by letter of 18 August 2005 to perform BPD surgery at the second respondent hospital with no requirement for a dietician to attend his patients. He conducted BPD surgery on Ms Shaw on 7 September 2005. He did not involve a dietician in her care on any of the admissions for which he was responsible. It was only when Dr Rutherford took over care of her she was seen by a dietician.

118. It is apparent that the hospital, having taken advice on the conditions which should be in place for BPD surgery to be conducted safely, failed to put all of those conditions in place. This was at least arguably negligent and gives rise to a cause of action against the second respondent.

119. There is a further factor which suggests that the applicant should be allowed to litigate against the second respondent. The first respondent has 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. 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 a similar situation:

“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.”

120. This passage was cited with approval by Keane JA in Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549 at [28] and also applies in the circumstances of this case.

Prejudice

121. The next 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.

122. 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 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.”

123. 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.”

124. It is relevant in this case that the limitation period had only just expired for the BPD surgery performed on the applicant and had not expired for any of her treatment after 15 October 2005.

125. 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.

126. In respect of the second respondent’s contention that the application should be dismissed on the ground of prejudice, the second respondent submitted that nurses who cared for the applicant at the hospital have only a limited recollection of the applicant beyond the nursing chart owing to the length of time that has passed since her admission. All of the nurses relevantly involved in the applicant’s care have, however, been identified and have provided affidavits to the second respondent.

127. In particular, two nurses who cared for the applicant at the hospital have provided affidavits. From reviewing the applicant’s nursing chart, Susan Jackson identified her writing in the patient’s chart and confirmed that she was involved in the applicant’s pre-operative preparations. She had some independent recollection of the applicant and recalled that during her initial post-operative course when Ms Jackson was involved in her care she appeared to progress well. She was not involved in the later stages of the applicant’s care. She had no independent recollection of the applicant’s preparation for surgery save that she was very tall so Ms Jackson can remember helping her into her operating gown. 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.

128. The Nurse Unit Manager, Ms Shirley McKinnon, was also involved in the applicant’s care during her first admission to the hospital and has a vague independent recollection of her. In particular she remembers her size and her reaction to a specific medication, Voltaren. Ms McKinnon did not recall whether she had any other concerns about the applicant. Her evidence was if she had any concerns she would have raised them with Dr Broadbent and noted that in her chart. If any of the nursing staff had concerns about the applicant, she said that they would have raised them with her and she would have contacted Dr Broadbent and recorded that in the chart together with any orders made by him.

129. Ms McKinnon said that any pathology results for his patients were received by fax to the nursing station and would be reviewed by her as the Nurse Unit Manager. If any of the results were outside the normal range, it was standard practice to telephone the doctor to notify the doctor of the results and make a note of that in the records together with any orders made by the doctor. 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. She said she would like to think that anything of significance to the treatment and care of the applicant would have been recorded in the notes. She conceded that things can be omitted but she was firmly of the view that nothing of significance had been missed in this case.

130. There are good clinical reasons for the patient charts being so detailed and comprehensive. 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. It reduces the prospect that the nursing staff will have to rely on their actual memory.

131. 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. In this case the patient chart is comprehensive and the evidence was that nothing of significance was missing. Further the material about the conditions on which Dr Broadbent was allowed to operate is in writing.

132. 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”.

133. 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:

• The limitation period had not expired for any of the treatment provided to the applicant except for her first admission for BPD surgery and in that case it had not long expired;

• There are comprehensive records of the applicant’s care including the detailed patient chart (progress notes and general observations), consent form, nursing history and surgical discharge summary;

• The applicant had three admissions to the hospital, on the last occasion for over a month;

• The second defendant has available to it all the nurses relevantly involved in her care and they have some independent recollection of the applicant;

• The Nurse Unit Manager was adamant that nothing of significance had been left out of the applicant’s chart;

• The correspondence concerning the conditions on which the first respondent should have been and was allowed to operate is set out in writing;

• 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

134. The applicant has therefore satisfied the court that she has a right of action against the second respondent and 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 15 October 2008.

Orders

135. 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 15 October 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.  I will hear submissions as to costs.