Sciacca v Ling[2013] QSC 97

SUPREME COURT OF QUEENSLAND

1. The applicant was born on 18 May 1947. He was a successful businessman.^[1] His first enterprise was cane farming.  After that he diversified into coffee and bananas.  Later he owned a prawn farm and other aqua and agricultural ventures and he also engaged in the development of properties.  At one time he employed or supervised more than 20 employees.  The plaintiff impressed me as an intelligent man.  In his written outline senior counsel for the second defendant submitted the plaintiff was and remained “a sophisticated, intelligent person who was acutely aware of where his best interests lie.”^[2]  In my view the submission is well made.

2. The first defendant is a cardiologist and the second defendant a general practitioner.

3. The plaintiff has a congenital condition known as “McArdle’s syndrome” and from time to time has suffered from rhabdomyolysis. Until the subject event the plaintiff had on about 10 or 11 occasions during his life developed symptoms of rhabdomyolysis including muscle weakness and red urine. Investigations at the university department of the Royal Brisbane Hospital led to the diagnosis of McArdle’s syndrome.

4. In early 2006 the plaintiff consulted the second defendant with symptoms of shortness of breath and chest tightness. Some blood tests were performed and elevated cholesterol was identified. On 27 February 2006 the second defendant prescribed “Lipitor” to treat the elevated cholesterol. The plaintiff says that he took the Lipitor as prescribed thereafter. On 16 March 2006 the plaintiff consulted the first defendant. The plaintiff alleges that during that consultation he told the first defendant that his treatment included Lipitor. The first defendant did not alter the regime.^[3]  Lipitor is the brand name of one of a class of drugs known as statins^[4].  It is known (and was at material times) that one of the side effects of taking statins, including Lipitor, can be the suffering of rhabdomyolysis.

5. The plaintiff alleges that when the second defendant prescribed Lipitor and when the first defendant saw the plaintiff on 16 Mach 2006 and was told the plaintiff was taking Lipitor that both doctors were aware of the plaintiff’s prior medical history including the diagnosis of McArdle’s syndrome and that he had suffered from rhabdomyolysis in the past.

6. On 21 June 2006 the plaintiff was air lifted to and admitted to the Townsville General Hospital where it was diagnosed that he was suffering from severe rhabdomyolysis with acute renal failure, sepsis and disseminated intravascular coagulation.  He was placed in an induced coma.  He remained in hospital before being discharged after 37 weeks.

7. The plaintiff commenced proceedings for damages for personal injury against the defendants on 29 November 2010. This application is brought pursuant to s 31 of the Limitations of Actions Act 1974 (“LAA”) for an extension of the statutory limitation period. The plaintiff requires an extension of time because he failed to commence his proceedings within three years of the accrual of the cause of action.^[5]  It is common ground that in so far as the plaintiff sues the defendants in breach of contract the cause of action occurred on about 27 February 2006 in the case of the second defendant when he prescribed the Lipitor and as against the first defendant on or about 16 March 2006 when the plaintiff consulted him.  In so far as the plaintiff advanced this cause of action in negligence his cause of action occurred at the latest on 21 June 2006 when he consulted his then general practitioner Dr Roux and was admitted to hospital.^[6]

8. In the circumstance that the plaintiff commenced his proceedings on 29 November 2010 the “critical date” becomes 29 November 2009, for he must point to a material factor of a decisive character that was not within his means of knowledge until a date after the commencement of a year preceding 29 November 2010.^[7]

9. On behalf of the defendant it was conceded that the plaintiff had proven to the relevant standard that there existed evidence which, if accepted, would establish a right of action within s 31(2)(b) of the LAA. Neither defendant asserted that there were discretionary considerations^[8] which might affect the exercise of discretion against extending time should the applicant otherwise establish grounds for an extension.^[9]  Essentially two matters were in issue before me.  The first was whether the plaintiff’s claim that he was unaware of a particular fact^[10] until after the critical date should be accepted.  It was submitted on behalf of the second defendant that the plaintiff should not be believed, and if so his application would necessarily fail.

10. The defendants also contended that^[11]:

“(a)It should be found that the plaintiff did know of the fact of the causative role of Lipitor as early as June 2007 and certainly by 2008; and

2. any failure by him to ascertain the additional facts of a decisive character was as a result of him failing to take reasonable steps to ascertain those facts earlier than he did (see section 30(c)(ii)).

11. This latter submission, for reasons that I will explain, also involves a close consideration of the credit of the plaintiff.

12. The plaintiff filed his application for an extension of time on 8 June 2012. He filed an affidavit in support of the application on 16 July 2012 (the first affidavit)^[12] and in the affidavit he gave some background relevant to his medical condition and his knowledge of the risks associated with taking statins and of suffering from rhabdomyolysis:

“14. I have suffered from a condition known as Type V Glycogen Storage Disease (‘McArdle’s Disease’) all my life.

15. I have been advised by various medical practitioners and verily believe same to be true that one of the effects of McArdle’s Disease is that when I engage in excessive physical exertion I suffer from bouts of Rhabdomyolysis, which is, in lay terms, the breakdown of muscle fibres leading to the release of myoglobin into the bloodstream.  Myoglobin is harmful to the kidney and can cause kidney failure.

16. Although I did not know it at the time, my risk of Rhabdomyolysis, is significantly increased by ingesting cholesterol lowering medications known as statins, as is shown by the reports of:

a. Dr Don Todman, Neurologist, dated 29 July 2010, a true and  correct copy of which is exhibited hereto and marked  ‘SGS-02’;

b. Dr Eugene Galea, Cardiologist, dated 17 January 2012, a true and correct copy of which is exhibited hereto and marked ‘SGS-03’; and

c.Dr Colin Owen, General Practitioner, dated 19 February 2012, a true and correct copy of which is exhibited hereto and marked ‘SGS-04’.”

With respect to Lipitor and the illness he suffered on 21 June 2006 and subsequent treatment he swore:

“20.I began ingesting the Lipitor immediately after Dr Birchley prescribed it.

21. Approximately two to three months after I began ingesting Lipitor I started experiencing mild muscle tightening and pain, chest pain when breathing and influenza like symptoms.

22. I had initially thought I was suffering from influenza which would resolve itself over time but the symptoms significantly worsened over time to the point that I had fevers, severe muscle pain and very dark red coloured urine, and so on 21 June 2006 I attended on Dr Gabriel Roux, a general practitioner in Cardwell.

23. Dr Roux immediately arranged for me to be taken by ambulance to the Ingham hospital, and from there I was airlifted to the Townsville Hospital.

24. During my admission at the Townsville Hospital I was treated for:

a.Sepsis;

b.Acute renal failure;

c.Rhabdomyolysis;

d.Disseminated intravascular coagulation (DIC) with subsequent pulmonary emboli;

e.Myocardial infarction; and

f.Stroke.

25. The above conditions left me with a left sided hemiplegia and I was first discharged from the Townsville Hospital in or around early 2007 in a wheelchair.

26. My life has been severely affected by the aforesaid medical conditions I was treated for during my hospitalisation.  At present I still suffer from the hemiplegia and I ambulate with the assistance of a walking aid only at infrequent periods.  I am fatigued from doing so and am therefore often confined to a wheelchair.

27. I require significant care and assistance on a daily basis with daily chores.  Further, the sizable farming operations of which I was the major shareholder and general manager of prior to my hospitalisation have since failed and gone into receivership due to my inability to operate them after my discharge from hospital.

28. No one at the hospital ever told me what had caused my hospitalisation or the above resulting conditions.  With my congenital McArdle’s Disease and history of Rhabdomyolysis I concluded that I must have suffered an extreme bout of influenza which precipitated a Rhabdomyolysis attack.”

The plaintiff then swore, concerning his knowledge of facts and his acquisition of the information necessary to constitute a material fact of a decisive character: 

“The limitation period

29. If my cause of action against the Defendants arose on the day I was hospitalised, then the three year primary limitation period would ordinarily expire on or around 21 June 2009.

30. As outlined above, I was not informed by any hospital staff or any medical treatment providers that the cause of my health problems leading to my hospitalisation might have been the result of ingesting Lipitor.

31. It was not until I came across some research material in or around May 2010 (‘the research material’) that I became aware that Lipitor may be a precipitating factor for Rhabdomyolysis.

32. Exhibited hereto and marked ‘SGS-06’ is a true and correct copy of the research material, dated 9 February 2008.

33. Although the research material is date stamped 9 February 2008, I did not come to find it until May 2010, when I was cleaning out one of my desk drawers at home and came across it along with various other bits of unrelated printed material which my previous carer, Mr Warren Vetters (‘Warren’), or my house cleaners must have placed it there.  Warren was the only person who used my computer.

34. Warren became my carer in early 2008 and ended up leaving to pursue other employment on or around 25 April 2008.

35. Warren would quite often be using my computer for various purposes, including his own personal use.  Although my memory of it is hazy, I can vaguely recall a day in early 2008 when Warren was on the computer and asked me how to spell “Rhabdomyolysis”.  I told him how I thought it was spelt.  I was sitting in my arm chair about five or so meters from Warren as he looked it up on the computer. 

36. I recall him mentioning the word “statins” at the time, though I was not sure what a statin was.  Warren offered no explanation as to what a statin was and continued looking on the computer.  He did not discuss it any further with me.

37. Warren must have printed out the research material and placed it in my drawer at that time.

38. By May 2010 Warren was no longer working as my carer and I found myself with a lot of time on my hands.  I was going through all my paper work and found the research material.  Although it was by no means conclusive in proving that the defendants were negligent in any way, it prompted me to research further on the internet to discover whether there was a possible link between the Lipitor and my health problems, as I have outlined at paragraph 18 of my affidavit sworn 7 October 2010 and filed in this proceeding.

39. The  further research that I undertook in late May and early June 2010 comprised of various searches I performed on the internet, which lead me to articles such as ‘Rhabdomyolysis from Statin Use’ from www.statinanswers.com/rhab.htm, a copy of which was printed on 2 June 2010 and is exhibited hereto and marked ‘SGS-07’.  This further research showed a potential causal link between my ingestion of Lipitor 40mg and my ensuing health problems.

40. Until coming across the research material in May 2010 I had always thought my hospitalisation was the result of suffering from a Rhabdomyolysis attack precipitated by an extreme bout of influenza.  It had never occurred to me that the Lipitor could have been the cause.  Further, none of my doctors had ever informed me that the Lipitor was the cause either.

41. If I had read, or been told of the content of the research material of February 2008 at that time, or before I had discovered it in May 2010, I would have immediately enquired further as to its content, and considered the same, as I did in May 2010.

42. Upon discovering a possible link between the Lipitor and my illness, I immediately sought advice to confirm whether the Lipitor had caused or contributed to my health problems.  I thought it was reasonable to obtain this advice first before deciding whether to commence an action for damages for personal injuries.

43. On 16 June 2010 I attended upon Williams Graham Carmen Solicitors and instructed them to arrange a medico-legal report from Dr Don Todman, neurologist, whom I subsequently attended upon on 29 July 2010.”

Importantly the plaintiff swore:

“50. If the research material I came across in May 2010 constitutes a material fact of a decisive character, a 12 month extension of the limitation date should occur until May 2011 (‘the notional limitation period’).”

     (Emphasis added)

13. On 10 July 2012 the application was ordered to be heard on Friday 14 September 2012. On 12 September 2012 an affidavit of the plaintiff’s general practitioner, Dr Gabriel Hendrik Roux was filed and served by the solicitors for the second defendant.^[13] The following day, 13 September 2012, the plaintiff applied for an adjournment of the application essentially so that he and his legal advisers would have an opportunity to further investigate the matter in light of the affidavit from Dr Roux.  I made an order for the reasons given that day granting the adjournment and ordered that the application be transferred to the civil callover list for hearing dates to be set.

14. In his affidavit Dr Roux swore:

“5. In or around 2001, I started to provide medical treatment to the plaintiff, Salvatore Guiseppe Sciacca, who I know as Sam Sciacca.  Exhibited to this affidavit and marked ‘GHR-1’ is a true and correct copy of my file in respect of Mr Sciacca.

6. My file comprises of a patient summary, a record of consultations between 20 September 2001 and 23 February 2011, my clinical notes, which record the history taken from Mr Sciacca and the observations and notes I have made after examination of him, correspondence with other medical practitioners and other third parties, test results, charts and reports that I caused to be prepared.  The clinical notes, reports, test results, charts and correspondence that I caused to be prepared were prepared on or about the day specified on those documents.

7. My notes from my consultations with Mr Sciacca are contained in my Consultation Record. A copy of my Consultation Record is at pages 5 to 37 of Exhibit ‘GHR-1’.

8. In my Consultation Record, a reference to ‘Sam’ is a reference to Mr Sciacca.

9. I am aware that Mr Sciacca experienced a severe episode of rhabdomyolysis in June 2006, which resulted in his hospitalisation and serious long-term health effects (2006 Episode).

10. I have been aware that statin treatments were contraindicated for Mr Sciacca due to its link to the onset of rhabdomyolysis since in or around June 2007.

11. On 8 June 2007 I had a consultation with Mr Sciacca (Consultation A).  My notes from Consultation A were mistakenly entered as an addendum to a previous consultation note dated 30 May 2007, which related to a prescription for a vaccine.  My notes from the consultations on 30 May 2007 and 8 June 2007 are at pages 31 to 32 of Exhibit ‘GHR-1’.

12. My note with respect to Consultation A states as follows:

Appended by Dr G Roux on 8/6/07 at 10:45:

In to review whole stay in hospital and course of events

Records from TTH re-viewed and more requested

TRail (sic) of events discussed in detail

Note: Under impression that he could have managed at home

like he usually did with his rhabdomyolysis.

Mx

Advised and all discussed in detail

On leaving self and carer more happy and gratefull (sic) about

care in hospital and outside hosp

Note:

Statin was started by Dr Lim 4/52 before episode

13. My recollection of Consultation A, which has been refreshed by reference to my file, is that Mr Sciacca came in with his carer specifically to discuss the 2006 Episode and the chain of events leading up to it.  Mr Sciacca expressed dissatisfaction with his treatment and that he did not have an explanation for what caused the 2006 Episode.  We reviewed the Townsville Hospital Records that I had on file and requested further documents.  Mr Sciacca had suspected McArdle’s syndrome which is a very rare condition but which I was aware was linked to rhabdomyolysis. I recall indicating to Mr Sciacca that he would have sought medical attention more quickly upon experiencing symptoms which he had been experiencing for approximately 2 days, however, he indicated to the effect that he had a history of less severe episodes of rhabdomyolysis and he had thought he could have managed his symptoms at home like he usually did.

14. During Consultation A we discussed the trail of events preceding the 2006 Episode.  Mr Sciacca advised me that he had been started on statins by Dr Lim 4 weeks before the 2006 Episode.  The information regarding the prescription of statins emerged as a result of Mr Sciacca advising me that he had been started on statins before the 2006 Episode, rather than any view I had formed by reference to other notes or records.  I recall that at the time I considered it relevant that the statins had been prescribed 4 weeks before the 2006 Episode, as I was aware that statins were linked to the onset of rhabdomyolysis. I recall that I advised Mr Sciacca during the consultation that there was a possible link between the statin prescription and the 2006 Episode.

15. As at the date of Consultation A I did not have any relevant records from Dr Lim (I do have records in my file from Dr Ling, who is in practice with Dr Lim, at pages 38 to 42 of Exhibit ‘GHR-1’ which are marked as having been received in June 2010). 

16. I now understand that it was not Dr Lim who prescribed Mr Sciacca with statins before the 2006 Episode, but I recorded that in my notes as that was what Mr Sciacca told me at the time.

17. On 11 October 2007 Dr Adam Cannon, a cardiologist, stated in a letter to me that Mr Sciacca ‘was not started on a statin because of his tendency to rhabdomyolysis.’  A copy of the letter from Dr Adam Cannon dated 11 October 2007 is at pages 78 to 80 of Exhibit ‘GHR-1’.

18. Dr Cannon’s further correspondence to me dated 19 December 2007 confirmed that statins were unsuitable for a person with suspected McArdle’s syndrome, stating with respect to Mr Sciacca’s treatment:

‘Given this muscle problem with suspected McArdle’s syndrome, it seems prudent not to risk putting him on any significant cholesterol lowing (sic) agent such as a statin.  He obviously should adopt a very healthy low-fat low-cholesterol diet and use things such as logical margarine to try and lower his cholesterol as much as possible.’

A copy of the letter from Dr Adam Cannon to me dated 19 December 2007 is at page 86 of Exhibit ‘GHR-1’.

19. On 24 January 2008, I had a consultation with Mr Sciacca regarding ‘Medication Confusion’.  A record of my notes from the consultation on 24 January 2008 is at pages 27 to 28 of Exhibit ‘GHR-1’.  I note that I refer to a letter from Dr Cannon in my notes from my consultation with Mr Sciacca on 24 January 2008.

20. On 9 September 2008, I developed a management plan for the treatment of Mr Sciacca (Management Plan).  A copy of the Management Plan is at pages 204 to 205 of Exhibit ‘GHR-1’.  On the second page of the Management Plan (page 205 of Exhibit ‘GHR-1’), the Management Plan states, ‘Please bring this GPMP along when you make the appointments.’

21. ‘GPMP’ is an abbreviation for General Practitioner Management Plan.  There are no other management plans contained in my file for Mr Sciacca.  In my Consultation Record, where I refer to a GPMP I am referring to the Management Plan dated 9 September 2008.

22. A management plan is a generic review of a patient’s health status at the time.  It is not done in the presence of the patient.  Once it is complete, the management plan is sent to the patient for review and then they come in for a consultation to discuss the management plan.  No medications or other treatments recommended on the face of the management plan are commenced until after the plan and any relevant issues are discussed with the patient.

23. Following the preparation of Mr Sciacca’s Management Plan, I had a diabetes clinic consultation with Mr Sciacca on Friday 12 September 2008 (Consultation B).  The purpose of Consultation B was to discuss the Management Plan.  My notes from Consultation B are included in my Consultation Records (page 21 of Exhibit ‘GHR-1’).  My complete note from the diabetes clinic consultation with Mr Sciacca on Friday 12 September 2008 states:

Date:  Friday, 12/09/2008 10:16 AM

Presenting Problems:  Diabetes clinic

Provider:  Dr Gawie Roux

History:  Diabetes Clinic today

Was very concerned last night with BP 110 systolic and pulse 45

Pulse was 88 a short while later on his machine

Note:

Advised re machine unreliable in AF

Advised to optimal readings

Full GPMP discussed+ Team taks

Note:  NO statin now

-re Mcardle syndrome

-? Contact Lipidermiologist later

24. In the Management Plan, I refer to Required Treatments and Services.  Item 7 of the Required Treatments and Services states ‘Sam should be treated with a ‘Statin’ for raised Cholesterol and monitor regularly’ (Item 7).  I would have included this because one of the key medical issues affected Mr Sciacca was high cholesterol for which treatment with statins is best practice.

25. I recall that at Consultation B, Mr Sciacca pointed out to me that Item 7 was incorrect.  He said words to the effect:  ‘I can’t take statins because of my McArdle’s’.  This exchange is noted in my notes from Consultation B where I state ‘Note: NO statin now’ followed by ‘ – re Mcardle syndrome’.  I specifically recall this exchange and it stands out in my memory because it is not common for a patient to point out errors and also because I was very grateful that, by Mr Sciacca saying that to me, I had not made this mistake with respect to treatment for Mr Sciacca’s cholesterol.  As a result of this conversation, the treatment recommended in Item 7 (prescription of statins) was not undertaken and I made a further note, ‘? Contact Lipidermiologist later’, which identified that I had advised Mr Sciacca that he should consider consulting a specialist about alternative treatments for the medical conditions which had prompted Item 7.

26. On 4 February 2009 I had a consultation with Mr Sciacca. During the course of this consultation Mr Sciacca informed me to the effect that he was in the process of legal proceedings and that he would require me to prepare a report for his solicitors to assist in those proceedings.  A record of my notes from the consultation on 4 February 2009 is at pages 17 to 18 of Exhibit ‘GHR-1’.”

(Emphasis added)

Plainly the affidavit of Dr Roux called into question the accuracy of the plaintiff’s contention in his first affidavit that he first became aware of the possible involvement of the statin drug Lipitor in causing or contributing to his suffering from the episode that led to his hospitalisation in June 2006.

15. On 28 November 2012 the plaintiff filed a further affidavit^[14] (the second affidavit)^[15] in which he addressed matters sworn to by Dr Roux.  In it he swore:

“The consultation of 8 June 2007

8. At paragraphs 11 to 16 of Dr Roux’s affidavit he mentions a consultation he had with me on 8 June 2007.

9. At paragraph 14 Dr Roux states ‘I recall that I advised  Mr Sciacca during the consultation that there was a possible link between the stain prescription and the 2006 Episode’.

10. I attended the consultation with Dr Roux on 8 June 2007 with my then carer, Ms Wendy Nash.

11. I arranged for that consultation (being several months from my discharge from hospital), as I wanted to understand in simple terms what had caused the 2006 Episode.

12. I had always been told by my treating medical providers that the 2006 Episode was trigged by my congenital McArdle's Disease causing a bout of Rhabdomyolysis, which then led to the other above medical complications, including a heart attack and a stroke.

13. I have suffered from McArdle's Disease all my life.  It has, from time to time, caused me to suffer from bouts of Rhabdomyolysis, but I have never experienced the significant medical complications mentioned above.

14. It was explained to me by my various medical treatment providers that a bout of Rhabdomyolysis causes a breakdown of my muscle fibres, which leads to a release of myoglobin into my bloodstream.  Myoglobin is harmful to kidneys and can cause them to shutdown and stop working.

15. Although I understand there are a number of triggers for a Rhabdomyolysis attack, the most common cause for me is extreme physical exertion.

16. Prior to the 2006 Episode I had always managed the early signs of the onset of Rhabdomyolysis (which include muscle aches and pains, and dark coloured urine) by drinking plenty of water and rest.

17. During my consultation with Dr Roux on 8 June 2007 I remember telling him that I had never had such serious health problems before as a result of Rhabdomyolysis.

18. I said further to Dr Roux that I wondered whether the hospital’s decision to place me in an induced coma was the best option, given that I had always been able to successfully manage the early signs of Rhabdomyolysis in the past by just drinking plenty of water and resting my body.

19. I asked Dr Roux whether the hospital should have just given me the same basic treatment rather than placing me in an induced coma, and whether by doing so they may have made my condition worse.

20. My recollection of the consultation with Dr Roux on 8 June 2007 is hazy, partly because that discussion is now nearly five and a half years ago, but mostly because my head wasn’t right at that stage.  What I mean by that is that I had only been discharged from hospital for several months when I saw Dr Roux in June 2007.  I was in terrible shape in terms of my physical and mental condition.  I had a number of health problems from which I was suffering, the effects of which included:

a.Confinement to wheelchair due to paralysis of the left side of my body;

b.Severe depression and suicidal thoughts;

c.Mental confusion and decreased cognition;

d.Increased diabetes levels;

e.Memory loss, both long and short term;

f.Incontinence, both urinary and faecal;

g.Heart attacks and unstable blood pressure;

h.Significant pain to the left foot (because of foot drop disorder; and

i.Erectile dysfunction.

21. I remember Dr Roux telling me in the consultation (in the presence of my then carer, Wendy Nash) that the hospital gave me proper treatment.  I do not recall that he told me that statins caused my 2006 Episode, or that there was a possible link between statins and my 2006 Episode.

22. I cannot deny that Dr Roux might have said that there was a possible link between statins and my 2006 Episode.  I say that because I cannot remember it and my memory was not good at all during that period.  Perhaps more importantly, I did not know what a statin was at that stage and would not have understood the term if it was said.”

…  

“30.I cannot recall whether Dr Roux reviewed the TownsvilleHospital notes with me as he indicates at paragraph 13 of his affidavit.  I was in a very confused and depressed state at that stage.  It is entirely possible that Dr Roux did refer to the TownsvilleHospital records with me but, as I say, I cannot recall this.

31. I do remember discussing with Dr Roux all of the medications I was taking around the time of the 2006 Episode, in order to give a complete picture about my health at the time I was hospitalised.

32. I note from paragraph 12 of Dr Roux’s affidavit that he records in his consultation note ‘statin was started by Dr Lim 4/52 before episode’.  I may have said that Lim prescribed me Lipitor.  However, it was in fact Dr Birchley who prescribed the Lipitor.

33. At paragraph 16 Dr Roux states it was not Dr Lim that prescribed the statins but that was who I told him.  I accept that I may have said ‘Dr Lim’ during the consultation, but that would have been due to the mental confusion I was suffering from at that time, owing to my stroke and depression.  I am certain though that I would not have said the word “statin” during the consultation as I was unaware of what that word meant at that time.  I would have said “Lipitor” as this is the brand name I was familiar with.

34. Ms Wendy Nash was a carer of mine following my discharge from the Townsville Hospital and at the time of my consultation with Dr Roux on 8 June 2007.

35. Wendy accompanied me into Dr Roux’s room at every consultation whilst she was my carer and would have accompanied me to my consultation on 8 June 2007.

36. Dr Roux may have used the word ‘statin’ during the consultation, though I can’t be sure.  If he did, I am certain that I would not have understood what he was talking about as I did not know what a statin was at that stage.

Correspondence from Dr Cannon

37. At paragraphs 17, 18 and 19 of Dr Roux’s affidavit he states that Dr Cannon wrote to Dr Roux under cover of two letters dated 11 October 2007 and 19 December 2007, stating words to the effect that ‘Sam should avoid statins due to his tendency to Rhabdomyolysis and McArdle's Syndrome’.  I do not dispute the authenticity of those letters, but would verily add that neither Dr Roux nor Dr Cannon nor anyone else ever informed me of the contents of those letters and I had never seen them prior to the commencement of this proceeding.

38. I am aware that Dr Cannon sent to my former solicitors, Williams Graham Carman, a letter dated 16 July 2009 which essentially repeated the same view that I should avoid statins due to my tendency to Rhabdomyolysis. Again, I was never told of the contents of that letter and was never shown a copy of it prior to commencing this proceeding.

39. Williams Graham Carman obtained the letter from Dr Cannon to be used in my family law property settlement proceeding, which I had instructed Williams Graham Carman to act for me in at that time.

40. Exhibited hereto and marked ‘SGS-01’ is the relevant portion of my family law file held by Williams Graham Carman.  Those records demonstrate that upon receiving the report of Dr Cannon, Williams Graham Carman wrote to me simply to inform me that they had received the report and sought from me payment of Dr Cannon’s fee for supplying the report.  They did not send me a copy of the report or tell me that it suggested that I should avoid statins.

41. Part of the exhibited file of Williams Graham Carman also includes a letter from their office to my present solicitors, wilson/ryan/grose Lawyers, dated 14 August 2012.  That letter shows that Dr Cannon’s report was requested and used for the sole purpose of establishing my decreased vocational capacity as a relevant consideration for my family law property settlement proceedings against my former wife.

The consultation of 12 September 2008

42. At paragraph 25 of his affidavit, Dr Roux states that at a consultation with me on Friday, 12 September 2008 I told him ‘I can’t take statins because of my McArdle's’ or words to that effect.

43. I was accompanied by my then carer Neville Brown to that consultation.  I do not recall saying to Dr Roux ‘I can’t take statins because of my McArdle's.’  I say that for two reasons:

1. At that time I did not know what a statin was, so I would not have used that word.  I knew only of the brand name Lipitor when describing my cholesterol medication; and

b)One of the nurses at the TownsvilleHospital (during my admission) told me I was not supposed to take Lipitor while I was sick.  She said ‘it is not good for you in your condition’, or words to that effect.  I took that to mean that it was not appropriate for me to keep taking Lipitor because of the condition of my health resulting from my stroke, heart attack and other complications I suffered in the 2006 Episode.  I did not ever consider that it was due to my McArdle's Disease that I ceased taking Lipitor, but may have said to Dr Roux that I was previously told by a hospital nurse that I should not take Lipitor due to my poor health.”

(Emphasis added)

16. The second defendant responded with a further affidavit of Dr Roux^[16] in which he swore (relevantly):

“Consultation of 8 June 2007

17. I recall Ms Nash and that she attended this consultation with Mr Sciacca.

18. I refer to paragraphs 11-15 of my previous affidavit as to the events of this consultation.

19. I do recall Mr Sciacca advising me that he had been prescribed a statin by “Dr Lim.”  I initiated the enquiry as to the topic as I was aware that rhabdomyolysis had been linked to statins.

20. It is not my recollection that Mr Sciacca actually used the word “statin” which I have recorded.  Rather I believe that the note I made referring to “statin” was my interpretation of his affirmative response to my enquiry as to whether he had been prescribed Lipitor before the 2006 Episode.

Consultation of 12 September 2008

21. I refer to paragraphs 20-25 of my previous affidavit in respect of the General Practitioner Management Plan I developed for Mr Sciacca and the mistake I had made in recommending at Item 7 that “Sam should be treated with a ‘Statin’ for raised cholesterol and monitor regularly”.  My distinct recollection is that it was Mr Sciacca who advanced concern regarding statins and his McArdle’s Syndrome by reference to the General Practitioner Management Plan I had prepared.”

17. There was a subtle but important change in the emphasis of the evidence of the plaintiff between his first affidavit filed in July 2012 and the second affidavit filed in November 2012. In his first affidavit he swore that it was not until May 2010 that he became aware that Lipitor may have been a precipitating factor in causing the acute suffering of rhabdomyolysis and in essence the material fact relied upon for the extension of time^[17] whereas in the second a distinction is made between knowing that a “statin” may have been responsible and understanding that Lipitor was a “statin”.^[18]  The change was driven because of the evidence forthcoming from Dr Roux concerning his consultations with the plaintiff on 8 July 2007 and 12 September 2008.^[19]

18. In the preceding paragraph and earlier^[20] I have said that the material fact in issue before me was the causative role of Lipitor in the reoccurrence of “rhabdomyolysis” in June 2006.  I have not overlooked (nor did learned counsel who appeared for the parties) that the ultimate inquiry is the “composite” expression “a material fact of a decisive character relating to the right of action.”^[21]  Before me it was common ground that the material fact (whenever ascertained) only became “of a decisive character” some time after receipt of the report from Dr Todman of 29 July 2010^[22] (which confirmed to the plaintiff that material fact) and subsequently when he had taken appropriate advice on that fact.^[23] No submission was made that the plaintiff failed to take reasonable steps to find out any fact^[24] after May 2010 when, as he would have it, he discovered the material fact.^[25]  So the issue joined between the parties involves a consideration of the reasonableness of the plaintiff’s conduct if it be held that he did become aware of the causative link earlier in 2007, 2008 or 2009 as contended by the defendants. 

19. On one view the plaintiff’s evidence in paragraph 53 of his second affidavit resolves any controversy about the reasonableness of his conduct. The plaintiff swore:

“53. If Dr Roux had made it clear to me that Lipitor caused my 2006 Episode I would have sought legal advice immediately.”

This seems to be akin to an admission against interest by the plaintiff upon this issue if the facts are found as contended by the defendants in light of the prompt steps taken after the “discovery” in May 2010.  However in closing submissions before me senior counsel for the plaintiff submitted that even if it be found that Dr Roux told the plaintiff in 2007 or 2008 that Lipitor (not just a “statin”) was the cause of his rhabdomyolysis in 2006 (or if he otherwise became aware of that in 2009) either the plaintiff may not have appreciated the significance of that information or that he might reasonably have not acted in response to it because the plaintiff was suffering from memory or other cognitive complications arising out of the illness he suffered in 2006 or from a consequent depressive condition.^[26]  I will consider this issue after I have considered the issue of what was said by Dr Roux to the plaintiff and what came to the attention of the plaintiff in 2007, 2008 and 2009 concerning the material fact.

20. I now turn to the evidence given by deponents of affidavits who were cross-examined at the hearing. When cross-examined the plaintiff conceded that if there had been any suggestion that the June 2006 Episode was caused because of medication that had been prescribed that it was in his interests to pursue enquiries about whether he might be able to sue for damages.^[27]  He agreed that he pursued those enquiries with his general practitioner Dr Roux.^[28] 

21. Concerning the consultation of 8 June 2007 Dr Roux, when cross-examined said:^[29] that:^[30] 

“In all my – in all my records, and I’m – I’m sorry if this causes confusion but my – my records would indicate in medical terms was not necessarily [what transpired] in lay terms being the consultation, so I cannot tell you what word was used in the consultation with Mr Sciacca and what word he has used.  We were talking about a statin, that I can tell you, and that was recorded in my notes.

Well, you seem to prefer to use the word ‘statin’?—Sorry?

You seem to prefer to use the word ‘statin’?—It is a class reference to that type of lipid treatment those medications and such an easy word to refer to and I – for that class of medication.  It doesn’t only refer to Lipitor, it refers to quite a couple of other medications in the same class.”

In the context where Dr Roux was being cross-examined concerning his note that mentions “statin” it should be understood that it may not reflect the word actually used in the conversation that passed between the plaintiff and Dr Roux.  The plaintiff had been prescribed the statin sold under the brand Lipitor and it is open upon Dr Roux’s evidence that any discussion may have used that brand name rather than the word “statin”.^[31]

22. In paragraph 21 of the second affidavit the plaintiff swore that he could not recall Dr Roux telling him that statins may have caused the 2006 Episode at the consultation on 8 June 2007.^[32]  That claim is in the context of the plaintiff asserting that he had memory problems at the relevant time.  However when cross examined the plaintiff twice conceded that Dr Roux had told him that there was a link between taking a statin and his admission to hospital in June 2006.^[33]  It might be recalled that the primary purpose for the consultation that day was to address concerns the plaintiff had that his condition may have been caused or aggravated in the way in which he was treated at the Townsville Hospital.  Plainly at the time of this consultation the plaintiff was concerned to investigate and get to the bottom of why it was he had suffered so severely in 2006 compared to earlier episodes of rhabdomyolysis and also ascertain whether any person or event or treatment was responsible.  It is significant, in my view, that subsequent to the consultation with Dr Roux on 8 June 2007 until the plaintiff consulted Dr Todman in 2010 there is no record of the plaintiff making enquiries of any doctor to find out what might have caused the illness that lead to his admission to hospital in June 2006.^[34] 

23. In light of the plaintiff’s concession that he was told by Dr Roux on 8 June 2007 that a statin had caused or contributed to his 2006 admission to hospital the evidence concerning the conversation between the plaintiff and Dr Roux on 12 September 2008 when the management plan that had been prepared on 9 September 2008 was discussed is important.^[35]  In cross-examination Dr Roux gave evidence consistent with the contents of his first and second affidavit.^[36]  The plaintiff when cross-examined departed from the contention sworn to in his affidavits^[37] that at the relevant time he did not know what a statin was so that he would not have used that word.  On three occasions when cross-examined he admitted that on the occasion of the consultation with Dr Roux concerning the management plan Dr Roux told him that Lipitor was a statin.^[38]

24. The admissions made by the plaintiff when cross-examined that on 8 June 2007 Dr Roux told him that a statin had been causative of the admission in June 2006 and that on 12 September 2008 Dr Roux told him that Lipitor was a statin proves to my satisfaction that by 12 September 2008 at the very latest the plaintiff had been told by Dr Roux that the drug prescribed by the second defendant had played a role in causing the rhabdomyolysis that lead to his hospitalisation. Therefore, in light of the plaintiff’s concession that possession of that information was sufficient to indicate that it was then in his interests to pursue enquiries about whether he might be able to sue for damages (that is, by the latest 12 September 2008^[39]) might be thought sufficient to shift the focus to consideration of the “reasonableness” of the plaintiff’s subsequent conduct^[40]and to the plaintiff’s contention that he might have been suffering from impaired cognition or poor memory at relevant times but in fairness to the submissions made on behalf of the parties upon other evidence concerning the plaintiff’s knowledge. I will address these issues of fact and those submissions.

25. In or about June 2009 the plaintiff decided to travel to Mexico to undergo stem cell treatment in the hope it would improve his health.  He printed a form off the internet^[41] and on 10 June 2010 asked Dr Roux to complete that part relating to medical history or information.^[42]  In evidence the plaintiff acknowledged that the treatment was expensive and that it was a serious matter for him to undertake.^[43]  In that part of the form concerning current medical conditions Dr Roux wrote (as the “Current ‘Primary’ Diagnosis”):

“McArdle’s Syndrome - resulting in DIC/Rhabdomyolysis on Atorvastatin”^[44]

The plaintiff’s evidence was that he took the completed form and sent it off.  When asked whether he read the completed form the plaintiff’s evidence was unsatisfactory.  Initially he suggested he “may not have”, then “can’t remember” which became “may have” and ultimately “probably did”.^[45]  Then when pressed with the words written by Dr Roux the plaintiff swore that the word “Atorvastatin” would not have meant anything to him.^[46]

26. It is improbable that the plaintiff did not read the document completed by Dr Roux and with care. He had demonstrated a keen interest in understanding why he had been so ill in 2006 and in ascertaining if any person or persons were responsible. The document was completed for the purpose of what was, for the plaintiff, an important and expensive treatment to be undergone overseas. In my view the plaintiff would have been concerned to check the document, that it was accurate and that it had been completed. Further it is improbable that the plaintiff did not know that “Atorvastatin” was a specific reference to Lipitor. The plaintiff had demonstrated a curiosity about the cause of his 2006 illness, if he did not know what Dr Roux was referring to the probabilities, I am satisfied, are that he would have asked.

27. In 2007 Dr Adam Cannon treated the plaintiff. Dr Cannon is a consultant cardiologist practising in Townsville.^[47]  In 2009 the plaintiff was embroiled in litigation with his former wife in the Family Court.  His solicitors in those proceedings sought a report from Dr Cannon for the purposes of that litigation.  The plaintiff swore that the report was obtained for the purpose of “stalling” the proceedings.^[48]  A report from Dr Cannon dated 16 July 2009 was obtained and was exhibited to an affidavit affirmed by the plaintiff and filed in the Family Court proceedings.^[49]  The report of Dr Cannon relevantly includes:

“He had a past history of severe illness in 2006 with septicaemic shock and disseminated intravascular coagulation, with resultant pulmonary emboli, myocardial infarction and a stroke.  He spent some 39 weeks in the TownsvilleHospital from July until December 2006.  All details regarding that illness will need to be obtained from the Medical Practitioners involved in his care at the TownsvilleHospital.

…

He was not started on a Statin therapy because of his McArdle syndrome which predisposes him to muscular inflammation and rhabdomyolysis ”

28. In paragraph 38 of his second affidavit^[50] the plaintiff swore that he “was never told of the contents of that letter (referring to the report) and was never shown a copy of it prior to commencing this proceeding.”^[51]  He reasserted his contention that he had not seen the report from Dr Cannon until after 2010 in evidence before me.^[52]  That claim is distinctly unlikely.  The report had, as I have noted, been exhibited to an affidavit of the plaintiff that he affirmed on 14 August 2009 and his solicitors filed in the Family Court on 17 August 2009^[53].  Yet the plaintiff gave sworn evidence before me that he stood by the contents of paragraph 38 of his affidavit.^[54]  In evidence before me there is a further indication that the plaintiff had a copy of Dr Cannon’s report a year before he would have it.  The second defendant tendered a statutory declaration sworn by the plaintiff^[55].  Annexure “D” to the statutory declaration is a copy of the file kept by the solicitors who acted for the plaintiff in the Family Court proceedings.  One of the documents on the file is a copy of a letter dated 10 December 2009, which on its face was addressed to the plaintiff^[56]:

“10 December 2009

Salvatore Sciacca

PO Box 135 

CARDWELL QLD 4849

Dear Sam

FAMILY LAW MATTERS

You recently called regarding the outstanding account of Dr Adam Cannon.  A copy of the report provide by Dr Cannon is attached.  It was necessary to obtain that report in the course of preparing your matter for trial.  It was and continues to be an important part of your case that the court is fully appraised of your medical condition.  You authorised us to obtain the report by signing an authority on 8 July 2009.  we first sent you a copy of the tax invoice for payment in July of this year.  As you have not attended to payment we have now paid on your behalf.  In the circumstances we seek reimbursement from you.  We have included this amount in our further tax invoice for work done to date which is attached.

Yours faithfully

WILLIAMS GRAHAM CARMAN

Eddy Lago

PARTNER

ACCREDITED FAMILY LAW SPECIALIST”

29. When cross-examined about this letter the plaintiff said he could not remember the letter and that he was not sure that he had seen a copy of Dr Cannon’s report, but that if a copy had been sent to him the word, “statin” would have meant nothing to him.^[57] In view of the evidence I referred to earlier and my findings I reject this last suggestion by the plaintiff.^[58]  The plaintiff was closely cross-examined by senior counsel for the second defendant upon the issue of the Cannon report.^[59]  When cross-examined his answers to questions suggested he was deliberately evasive, being concerned to hedge until he knew more of the detail with which he might be confronted.^[60]  I closely observed the plaintiff when he gave evidence.  At other times when he was under cross-examination I had the distinct impression from the plaintiff’s demeanour that he was concerned that the evidence he was giving might appear improbable.^[61]  When giving evidence upon this issue there were significant hesitations or pauses by the plaintiff.  He seemed embarrassed by the evidence he was giving.  As the cross-examination proceeded the plaintiff overcame his initial hesitations and evasions and he became bolder and more emphatic that he had not seen the report until after he had commenced these proceedings.^[62]  Then when he was confronted by the evidence of his former solicitor’s letter to him of 10 December 2009 the evasion re-emerged.^[63]

30. I do not accept the plaintiff’s evidence upon the issue of Dr Cannon’s report. The probabilities are that the plaintiff was aware of its contents by 14 August 2009 when he affirmed the affidavit for the Family Court proceedings.

31. Exhibited to the Family Court affidavit was a discharge summary dated 21 December 2006 from the rehabilitation unit of the Townsville Hospital.^[64]  In the discharge summary the following is said in the section “Medical Report”:

“In view of his previous rhabdomyolysis we have discontinued his statin.”

32. In cross-examination the plaintiff accepted that he had received a copy of the discharge summary.^[65]  However he denied that he had read it at the time of his discharge in 2006.  That contention is plausible accepting that the plaintiff may still have been unwell in December 2006.  But in evidence his contention was that at the time he affirmed his Family Court affidavit and caused it to be filed in the Family Court (exhibiting the discharge summary as a “true copy”) in August 2009 he had not read it.  I do not accept the plaintiff’s evidence upon that matter.  For the reasons I gave concerning the medical report prepared by Dr Roux with respect to the stem cell research^[66] I regard it as highly improbable that the plaintiff did not read the discharge sometime between December 2006 and August 2009.

33. The plaintiff’s solicitors also procured a report from Dr Roux for use in the Family Court proceedings.^[67]  Dr Roux wrote to the plaintiff’s solicitors providing his report on 12 August 2009^[68] in which Dr Roux said:

“Mr Sciacca is suspected to suffer from a rare hereditary enzyme disorder called McArdle syndrome.  This syndrome is suspected to have caused serious side effects to the cholesterol medication he was taking in 2006.”

34. In evidence the plaintiff denied that he had seen that report until it was shown to him when under cross-examination.^[69]

35. I am reluctant to accept the plaintiff’s evidence. However no direct evidence was tendered before me that suggested the document had been provided to or shown to the plaintiff before he gave evidence before me. Consequently I am not in a position to make any finding as to whether or not this document had come to the attention of the plaintiff before he gave evidence before me.^[70]

36. At this juncture it is convenient that I record some findings concerning the evidence given by the plaintiff and Dr Roux. Earlier I set out at some length evidence given by Dr Roux in his affidavits and referred to some of his evidence when examined.^[71]  When he gave evidence Dr Roux impressed me as an intelligent and thoughtful man who was taking care to give accurate evidence of what he could remember.  While it may be that when a witness gives evidence by telephone, as did Dr Roux, the opportunity of a judge to form an impression of a witness is more limited than when evidence is given and tested by cross-examination before the judge, nevertheless the impression I gained assists in persuading me that Dr Roux’s evidence is reliable.  This conclusion is fortified by the circumstance that Dr Roux had available to him notes of his consultations and that for a long time the plaintiff had been his patient.  The evidence of the multiple health issues suggests that the plaintiff’s management cannot have been routine so that it is likely that for Dr Roux the consultations with the plaintiff stood out from those with others.  By contrast the plaintiff did not impress me as a reliable witness.  He was wheelchair bound when he gave evidence and it is plain from the evidence that he has been very ill and remains, to some extent infirm.  But even making allowances for this, including an impression gained towards the end of a rather long cross-examination that he appeared to tire, the plaintiff impressed me that he was alert and well able to understand the questions asked of him.  At times when he was cross-examined concerning the content of documents or affidavits it took him some time to turn the documents up, but this was due to physical limitations not, in my view, to any want of mental acuity. I will not repeat the findings or impressions I expressed earlier in these reasons.^[72] I have already commented upon the plaintiff’s demeanour and his evidence in important respects.^[73]  I have formed the view that the plaintiff was prepared to tailor his evidence to suit his interests rather than accuracy.  Where there is a conflict between the evidence of the plaintiff and that of Dr Roux upon the detail of what was said during consultations I prefer the evidence of Dr Roux. 

37. The plaintiff adduced evidence from Ms Wendy Nash who was a carer of the plaintiff in June 2007.^[74]  She accompanied the plaintiff to the consultation with Dr Roux on 8 June 2007.  She could not recall Dr Roux saying that there might be a link between a statin medication and the 2006 illness.  At that time she was not aware what a statin was.^[75]  When cross-examined she said she could not recall the word being used, she could not say it was not said, the word might not “have rung any bells with her”^[76] but the word “Lipitor” was mentioned, she knew of Lipitor because her mother was taking it, and she recalled that the plaintiff told Dr Roux that he had been prescribed Lipitor about four weeks before the 2006 episode^[77].  Ms Nash’s recollection was “vague”^[78] and when it was suggested Dr Roux said there was a possible link between that prescription and the 2006 episode she said she could not recall, it might have been said.^[79]  In the view I take the evidence of Ms Nash does not call into question the reliability of Dr Roux’s evidence.  It supports the implication suggested by Dr Roux that on that occasion when speaking he used the word Lipitor rather than statin.^[80]

38. Warren Vetters was a carer of the plaintiff from early 2008 until approximately May 2008. In his affidavit^[81] he identified by his handwriting a document concerning Lipitor that he printed on 9 February 2008 when he was using the plaintiff’s computer to conduct an internet search.  This is the same document that the plaintiff swore he first saw when he was cleaning out a desk drawer in May 2010.^[82]  In his affidavit Mr Vetters swore that he did not discuss the contents of the document with the plaintiff.  He maintained this when cross-examined.^[83] His evidence was that he discussed the matter with Dr Roux.^[84]  Dr Roux did not recall Mr Vetters raising this with him^[85], his practice was that matters would only be discussed in the absence of a patient with a carer or a family member with the patient’s approval^[86] and if discussions occurred they would be noted.^[87]  Dr Roux did not have a note of any carer raising issues concerning the plaintiff’s rhabdomyolysis or Lipitor with him in early 2008.^[88]  I have made findings and observations concerning the reliability of Dr Roux.^[89]  Mr Vetters when he gave evidence did not particularly impress me.  He was at times combative and dogmatic while on other occasions unsure in his recollections.  I did not gain a favourable impression when he gave evidence before me.  If Mr Vetters did raise with Dr Roux the issue of Lipitor and the condition rhabdomyolysis subsequent to the internet search on 9 February 2008 it is likely it was raised in the presence of the plaintiff.  The absence of a note by Dr Roux of such attendance suggests such an occasion might not have occurred.  But if it did the failure by Dr Roux to note it suggests it happened in the presence of the plaintiff as, consistent with the doctor’s practise, any discussion in the absence of the plaintiff in all likelihood would have been noted by Dr Roux.

39. The second defendant read and filed before me an affidavit by Christopher John Eastaughffe^[90].  Mr Eastaughffe was not cross-examined, nor was any application made to cross-examine him.  He is a private investigator and was retained by the solicitors for the second defendant to carry out inquiries on behalf of the second defendant.

40. On 7 August 2012 he had a telephone conversation with the plaintiff’s former wife, Noelene Sciacca. In his affidavit he swore:

“13. Ms Sciacca informed me that she was not living with Sam Sciacca when he was adversely affected by something.  She stated that she knew straight away it was caused by something.  She thought he had a bad stroke or a heart attack.

14. Ms Sciacca said he was not the same after that, there was a lot of anger, he wasn’t the same person.  She believed it happened in May, June, July 2006, somewhere around that.

15. Ms Sciacca stated she left Sam Sciacca in January, the beginning of 2006.

16. Ms Sciacca stated that Sam Sciacca had told her that his doctor, she struggled to remember the name but eventually settled on Doctor Birchley, was giving him something that had caused the attack.

17. Ms Sciacca explained that they had both been going to the same medical centre for 16 or 17 years, or since they were 16 or 17, but she was unclear on this.  She explained that they had different doctors at the medical centre.  She went to one and Sam went to another.

18. I asked Ms Sciacca words to the effect of ‘When did Sam tell you that it was something the doctor gave him’

19. She replied, ‘He was doing research a couple of years back and he told me that it was something the doctor was giving him’.

20. Something then came up about Sam’s current partner and I mentioned that I was surprised that the property was still in both her and her former husband’s names.

21. Ms Sciacca informed me that they still have not done the settlement.  She informed me that she had sacked her solicitor and walked away.  She indicated a dislike of solicitors and the cost.

22. I asked Ms Sciacca words to effect of ‘When you said Sam informed you a couple of years back that he was doing research, can you remember when it was, are there any landmarks that could tell you when it was, birthdays, events, anything?’

23. Ms Sciacca explained ‘It would have been 2008, 2009.  We’re in 2012, I’ve been in Cairns for two years.  It was while I was still in Innisfail’.

24. I asked, ‘Was it just before you left Innisfail, or some time earlier?’

25. She replied, ‘Earlier, it was some time before I left’.

(Emphasis added)

41. Ms Noelene Sciacca, the former wife of the plaintiff, swore two affidavits that were read and filed before me.^[91] In the first affidavit Ms Sciacca relevantly swore:

“8. In or around late 2010 I recall visiting my son, Michael, at his home.  Michael said Wayne had told him that Sam was suing Dr Simon Birchley for giving him cholesterol medication which Sam said was the likely cause of him falling ill and being hospitalised in mid-2006.

9. Prior to my conversation with Michael I was never aware that Sam’s cholesterol medication might have caused him to fall ill.  No one, including Sam, had ever suggested to me beforehand that Sam even suspected that he had had a bad reaction to the cholesterol medication.

10. Sam and I have not spoken to each other a great deal following our separation.  It was not until approximately six months ago that I spoke directly with Sam abut his claim against Dr Birchley.  That was by telephone call, and it was the first time that Sam had mentioned to me that he thought the cholesterol medication that Dr Birchley prescribed him was the cause of his illness in 2006.”

42. In her second affidavit Ms Sciacca swore:

“1. This affidavit is to supplement my earlier affidavit which was filed in this proceeding and which was sworn on 22 August 2012.

2. I have read the affidavit of Mr Christopher Eastaughffe sworn 14 August 2012.

3. I agree with the content of Mr Eastaughffe’s affidavit, though I would add that at the time Mr Eastaughffe called me to have that discussion I was preoccupied with work matters and consequently was mistaken when trying to recall the information Mr Eastaughffe sought.

4. I failed to tell Mr Eastaughffe during our telephone discussion that it was through my son that I first learned that the plaintiff (‘Sam’) thought Dr Birchley had given him something that had caused his hospitalisation in 2006.  As I say in my affidavit 22 August 2012, it was through my son Michael that I learned of this information.

5. I also made an error in saying to Mr Eastaughffe that I learned of this information in 2008 or 2009.  As I say in my affidavit, it was in fact in or around late 2010.

6. It was because I was preoccupied with work and that the events took place several years beforehand that I was mistaken during my telephone discussion with Mr Eastaughffe.”

43. On behalf of the second defendant it was submitted, in the circumstance that Ms Sciacca admitted the accuracy of the affidavit by Mr Eastaughffe, then the evidence of the plaintiff’s statement to Ms Sciacca that the illness that caused his hospitalisation had been caused by something Dr Birchley had given him in light of what he said about how he found out and when he discovered that information was a prior inconsistent statement admissible against the plaintiff pursuant to s 101 of the Evidence Act 1977.^[92]  Ms Sciacca was called and was cross-examined upon her affidavits.  She was visibly upset, even overwrought, when she gave evidence.  At times it was difficult to understand what she was attempting to convey in answer to questions asked of her.  At other times it was difficult for the cross-examiner to ask questions and elicit answers because of the witness’s tendency to answer or say something before the question had been asked or concluded.  Towards the end of her cross-examination she suggested that paragraph 3 of her second affidavit where she swore that she agreed with the content of Mr Eastaughffe’s affidavit was not accurate saying that she did not prepare her affidavit and that it had been prepared by solicitors for the party and sent to her.^[93]  Notwithstanding this belated challenge to the accuracy of Mr Eastaughffe’s affidavit no application was made on behalf of the plaintiff to challenge by cross-examination Mr Eastaughffe.

44. I have given consideration to the weight to be given to the evidence of Ms Sciacca^[94] both in relation to her belated assertion that Mr Eastaughffe’s affidavit was inaccurate but also to her claim that at the time she made the statements to Mr Eastaughffe she was preoccupied with work and that she had inadvertently misled him when she answered some of his questions.  As to the former there is no suggestion that at the time Ms Sciacca swore her affidavit on 18 February 2013 she was distraught or preoccupied.  Consequently I accept her sworn evidence in the affidavit that Mr Eastaughffe’s affidavit is accurate.  Concerning the latter, whether I should accept that Ms Sciacca was preoccupied when she spoke to Mr Eastaughffe, and that as a consequence she mistakenly told him that her former husband had told her the matters the subject of her first affidavit, I find it difficult to accept that the conversation recorded by Mr Eastaughffe in paragraph 16 through to the detail contained in paragraph 25 could have been a mistake due to preoccupation.  I reject Ms Sciacca’s evidence in this regard.  Accordingly I accept the evidence that the plaintiff made a prior inconsistent statement to his former wife in or about 2008 or 2009^[95] to the effect that when doing research he discovered that the illness and hospitalisation that occurred in 2006 had been caused by something that the second defendant had “given him”.^[96]

45. Returning to the contentions of the defendants^[97] and the plaintiff’s contention concerning his cognition or memory problems^[98] I was referred to a passage from the reasons for judgment of Dawson J in Do Carmo v Ford Excavations Pty Ltd^[99] which was quoted and applied by Thomas JA in Dick v University of Queensland^[100] where his Honour said:

“[26]The legislation in question, ss 57 and 58 of the Limitation Act 1969 (N.S.W.), is in pari materia with the Queensland legislation, ss 30 and 31 of the Limitation of Actions Act 1974.  In quoting further passages from Dawson J.’s judgment I have interpolated the relevant Queensland sections:

‘The form of the legislation requires, I think, a step-by-step approach.  The first step is to inquire whether the facts of which the appellant was unaware were material facts: s. 57(1)(b) [Qld s. 30(1)(a)].  If they were, the next step is to ascertain whether they were of a decisive character:  s. 57(1)(c) [Qld s. 30(1)(b)].  If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date:                s. 58(2) [Qld s. 30(1)(c)].’

(Footnotes omitted)

Of the third step Dawson J. spoke of Thomas JA in Dick v University of Queensland said^[101]:

“[34]In making a finding of fact on this important question, the reasonableness of the steps taken by the claimant needs to be considered, and of course a claimant will not succeed if he or she has unreasonably delayed in obtaining the necessary advice or information.  However, it seems to me, with respect, that the approach of Dawson J. with whom Brennan J. agreed, represents the correct method.  I note that Murphy A.C.J.’s judgment is at least consistent with that of Dawson J. (with whom Brennan J. agreed) and is inconsistent with the approach taken by Wilson and Deane JJ.  The gathering of the necessary information and awareness which will make it reasonable for a claimant to bring an action may well involve progressive stages of awareness.  Such situations were considered by the Full Court in Neilson v. Peters Ship Repair Pty Ltd and Randel v BrisbaneCity Council.  As those cases indicate, the question whether a fact is not within the means of knowledge of a person at a particular time is still a question of fact.  In Neilson I observed ‘it may be said of s. 30(d)(ii) that not many “steps to ascertain the fact” can reasonably be expected of a client when he is in ignorance of the need to ascertain it’.

[35]The appellant’s submission that the respondent, once having been provided with the information supplied by Dr Carroll, should instantly be taken to have consulted with all necessary experts (including industrial safety experts and solicitors) and to be taken to know such information as those persons would have supplied to him must be rejected.  In my view the date by which any necessary additional fact was within his means of knowledge is the date by which a court may find him to have been able to find it out by taking all reasonable steps to do so.

[36]In cases where a potential claimant lacks a material fact, and reasonably needs the help of a solicitor or someone else to obtain it, some further time may reasonably elapse before it should be held that such facts are within the claimant’s means of knowledge.  Such time will include the time which would reasonably elapse if the claimant, taking all reasonable steps to do so, consults solicitors or other persons, and those solicitors or those other persons undertake the necessary inquiries to ascertain the necessary additional facts to show whether or not there is a worthwhile cause of action.”

(Footnotes omitted)

46. The second defendant also referred me to the reasons of de Jersey CJ in Fyles v Clarke^[102] where his Honour said, referring to Castlemaine Perkins Ltd v McPhee^[103]:

“The question of what is reasonable is to be answered objectively with reference to a person in the appellant’s position and with his background and understanding.”

The defendants submitted that the evidence demonstrated that the evidence of the plaintiff’s knowledge that Lipitor was a statin, that it was likely to be a contributing cause to his suffering in 2006 combined with his concession that if he had known those facts he would have sought legal advice immediately^[104] warranted a finding that the plaintiff had not taken all reasonable steps within s 30(c)(ii) of the LAA.

47. The plaintiff relied upon two affidavits and two reports of Dr John Rogers, a consultant psychiatrist.^[105]  The second defendant also relied upon the evidence of a specialist psychiatrist, Dr Martin Nothling.^[106]  The significance of the evidence of Dr Rogers for the plaintiff was his opinion that the plaintiff was at material times suffering from “impairments in memory, concentration and understanding of new information” related to “the combination of his post-stroke syndrome and related Major Depressive Disorder as well as his lack of understanding of the relevant connection between statins and Lipitor.^[107] It might be noted, in fairness to Dr Rogers, that after he had an opportunity to review further material and the detailed report from Dr Nothling, his view altered somewhat.  He was “much less inclined to suggest that any significant degree of post-stroke organic brain syndrome or confusional state was present” at relevant times.^[108]  But he still maintained that the depressive condition that the plaintiff suffered from might have adversely affected his capacities for concentration and memory.  When cross-examined Dr Rogers frankly conceded that to a large part his assessment of the plaintiff depended upon accepting the accuracy of what the plaintiff told him.^[109]

48. The significance of any psychiatric, mental or other complication affecting memory and concentration in the context of a consideration of whether a person has taken “all reasonable steps” within s 30(1(c)(ii) of LAA was considered by the Court of Appeal in NF v State of Queensland ^[110].  In that case Williams JA said:

“[2] In my view it is clear from s 30(1)(b)(ii) and s 30(1)(c)(ii) of the Limitation of Actions Act 1974 (Qld) (fully set out in the reasons of Keane JA) that in particular cases the personal circumstances of the person seeking relief pursuant to the Act will be of vital importance. One only has to have regard to the following words in order to demonstrate that:

"the person . . . ought in the person's own interests and taking the person's circumstances into account" [s 30 (1)(b)(ii)]

"as far as the fact is able to be found out by the person"

[s 30(1)(c)(ii)].

Those words in s 30(1)(b)(ii) were considered and applied in the recent series of cases involving applications for extension of time by undercover police operatives:  Russell v State of Queensland [2004] QCA 370; Morris v State of Queensland [2004] QCA 371; Stephenson v State of Queensland [2004] QCA 483; Reeman v State of Queensland [2004] QCA 484; and Bougoure v State of Queensland [2004] QCA 485. Further reference could be made to the observation by this court in Healy v Femdale Pty Ltd [1993] QCA 210: "There is no requirement to take "appropriate advice" or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to do so." In similar vein is my observation in Young v The Commissioner of Fire Service [1997] QSC 43: "To my mind it is of critical importance here that the applicant's psychiatric condition prevented him from appreciating the nature and significance of the injury he had suffered and its likely consequences. The very psychiatric condition in question militated against the applicant knowing its seriousness and probable consequence."

49. To a similar effect Keane JA said:

“[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. This view is supported by the text of s 30(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b). The authorities do not afford conclusive support for this view; but they do not foreclose its acceptance, and it may be noted that in Young v The Commissioner of Fire Service Williams J, as his Honour then was, accepted that a psychiatric condition which prevents an applicant from appreciating the nature and significance of the injury he has suffered was relevant for the purposes of s 30(1)(c)(ii). I note that it appears that this decision was not cited to McGill DCJ in Hopkins.

[30] At this point I express my respectful disagreement with the observation of McGill DCJ in Hopkins where his Honour, speaking of the applicant's avoidance of a discussion of the incidents which caused her harm, said that this problem is:

"… not one which is readily accommodated within the framework of s 31 … It is essentially concerned with facts which were in a practical sense not available to the applicant in time. It is not, it seems to me, concerned with the situation where an applicant who was in possession of the important facts simply did not want to pursue the matter, for whatever reason. I do not think that the situation is changed by the fact that the desire not to pursue the issue is in a sense caused by the psychiatric injury itself. There is also a focus on what it was reasonable to do, which directs attention to what an ordinary reasonable person in the position of the applicant would have done, rather than what this applicant would have done, bearing in mind her personal emotional and psychological difficulties. A 'reasonable person endowed with the knowledge and experience of the plaintiff' [Pizer (supra) at [20]] is different from a reasonable person suffering the same psychiatric condition as the plaintiff."

[31] In my respectful opinion, the observation made in the last sentence cited from his Honour's reasons is correct so far as it goes, but it fails to recognize that s 30(1)(c) is not concerned with what might be expected of a reasonable person; it is concerned with what might reasonably be expected of the applicant in the particular case. I acknowledge that the view which commended itself to McGill DCJ in Hopkins is not foreclosed by the course of authority, but I consider that the approach of the learned primary judge more closely accords with the text and structure of s 30 of the Act.”

(Footnotes omitted)

50. On behalf of the plaintiff it was submitted that I should conclude that the plaintiff failed to follow up on the information he’d been given by Dr Roux, assuming I found facts as contended for by the defendants, because of the subtle and insidious effect of the plaintiff’s depressive condition affecting his memory and his cognitive functioning. Counsel for the plaintiff submitted that, assuming findings were made against the plaintiff upon what he was told or what came to his attention, the circumstance that no advice was sought from his lawyers until after May 2010 was indicative of cognitive problems. This was emphasised in light of the circumstance that the plaintiff had, prior to 2006, been an intelligent and vigorous successful businessman capable of decisive action.

51. The submission made on behalf of the plaintiff has a superficial attraction. The plaintiff suffered from depression subsequent to the 2006 illness. He was treated for that by Dr Roux. Further it may be granted that persons suffering from depression can suffer from an impairment to memory or cognitive functions to some degree. But the evidence points to the fact that the plaintiff through 2007 and following remained an intelligent man capable of decisive action and making decisions in his own interest. In 2007 and 2008 he was able to instruct solicitors to organise a “boardroom coup” to regain control of his corporate interests.^[111] In 2009 he was capable of instructing solicitors to engage vigorously in litigation in the Family Court.  It appears that he was busy attempting to refinance and re-establish his business interests in the months and years following his illness.  Dr Rogers only had the opportunity to see the plaintiff once (in November 2012).  He was not a treating doctor.  The evidence from Dr Roux does not suggest that following discharge from hospital the plaintiff’s memory or cognitive functioning was so impaired that he was not capable of making informed decisions as to where his interests lay nor capable of recalling or memorising facts and matters that might be important.  While the discharge summary from the Townsville Hospital and other records suggest depressive symptoms there is no evidence before me of any systematic neuro psychiatric assessment done contemporaneously that suggests significant cognitive or memory impairment.^[112]  There are other circumstances that are suggestive.  In the statement of claim filed in these proceedings^[113] the plaintiff alleges that he suffered from adverse medical consequences as a result of the negligence of the defendants including depression^[114] but it is not alleged that he suffered any significant cognitive or memory impairment.^[115]  Further in the affidavit filed in the Family Court which exhibited medical reports obtained for the purposes of “stalling” that litigation^[116] the plaintiff made no reference to any cognitive or memory impairment notwithstanding he made detailed references to other medical conditions and complications he had suffered as a consequence of the 2006 episode.^[117]  In the circumstances I do not accept Dr Rogers’ tentative suggestions that the plaintiff may have been suffering from memory or cognitive deficits consequent upon his depression in the years 2007 through to 2009 that may have affected him as submitted on his behalf.  The plaintiff has not made out a circumstance comparable to that considered by the Court of Appeal in NF v The State of Queensland.

52. In my reasons earlier I expressed a distinct preference for the evidence of Dr Roux to that of the plaintiff and set out my reasons for my reservations concerning the reliability of the plaintiff’s evidence upon certain matters.^[118]  The second defendant submitted that the evidence of the plaintiff about when he first became aware of the possible link between Lipitor and his 2006 illness should not be accepted and that his application should necessarily fail.^[119] My reservations concerning the plaintiff’s reliability and credit as a witness lead me to conclude that I am unable to accept his claim that the document printed by Mr Vetters on 9 February 2008 first came to his attention when he discovered it when cleaning out a desk drawer in May 2010.^[120]  The evidence however does not permit me to make a precise finding as to when that document first came to the attention of the plaintiff.  Nevertheless the evidence persuades me that in 2007 and 2008 (this was reinforced by the information that came to his attention in 2009) the plaintiff well knew that it was likely that Lipitor was responsible for causing him to suffer his illness in 2006.^[121]

53. It may be noted that when instructed in 2010 the solicitors on behalf of the plaintiff moved promptly to obtain expert reports and evidence in support of the plaintiff’s claim upon issues of liability.^[122]  It was suggested by counsel on behalf of the defendants that the reason why the plaintiff failed to move promptly when he became aware of the likely (or possible) link between Lipitor and the 2006 incident was because the plaintiff was simply unaware that there was a limitation period.  It should not be overlooked that the plaintiff had a number of matters to attend to following his discharge and recovery in 2007.  His business affairs were in disarray, he needed to regain control of his business and it appears he had financial difficulties and funding problems to deal with.  In addition his wife was pursuing him for a property settlement. It would seem the plaintiff turned his mind first to his business affairs.  He took steps to “stall” the Family Court proceedings.  It is likely in the view I take of the plaintiff’s intelligence and sophistication that he made a conscious decision to prioritise those matters that concerned him with the consequence that he only turned his efforts to further investigating and pursuing any rights against those who treated him when in 2010 he instructed his then solicitors to investigate the matter.

54. I do not believe the plaintiff when he says it was only in May 2010 that he discovered the possible link between Lipitor and his illness. He has not discharged the onus of proving that a material fact only came to his attention on or after 29 November 2009 (“the critical date”). Further the plaintiff armed with the information in 2007, 2008 and 2009 of the “material fact” did not take reasonable steps within the meaning of that term used in s 30(1)(c)(ii) of the LAA.

55. The plaintiff’s application is dismissed. I will hear submissions concerning costs.