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Wilson v Mackay Hospital and Health Service[2021] QSC 178

Wilson v Mackay Hospital and Health Service[2021] QSC 178

SUPREME COURT OF QUEENSLAND

CITATION:

Wilson v Mackay Hospital and Health Service [2021] QSC 178

PARTIES:

ELLIE ANN WILSON

(applicant)

v

MACKAY HOSPITAL AND HEALTH SERVICE

ABN 87 427 896 923

(respondent)

FILE NO/S:

SC No 28 of 2021

SC No 493 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

29 July 2021

DELIVERED AT:

Rockhampton

HEARING DATE:

14 July 2021

JUDGE:

Crow J

ORDER:

  1. 1.The period of limitation within which to commence an action for damages for personal injuries suffered by the applicant arising from the subject incident on 27 February 1999 be extended up to, and including, 25 June 2021.
  2. 2.The respondent file and serve written submissions as to costs within 7 days hereof and the applicant file and serve written submissions in reply within 3 days’ receipt of the respondent’s written submissions.

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – GENERALLY – where the applicant seeks to pursue a claim for damages for personal injuries arising from an incident which occurred when she was a child – where the applicant suffers, and has since her late teens, from general neuroses and post-traumatic stress disorder – where the applicant had attended upon a psychologist for her conditions – where, in August 2020, the applicant was informed by her psychologist that here conditions may affect her ability to work – where in March 2021 the applicant was diagnosed by a psychiatrist as having a class 2 impairment which will impact her ability to work – where the limitation period in which to commence proceedings expired on 17 August 2016 pursuant to s 29(2)(3) of the Limitation of Actions Act 1974 (Qld) – where the applicant filed a claim in the Supreme Court on 18 June 2021 - where the applicant seeks to extend the period in which to commence under s 31 of the Limitation of Actions Act 1974 (Qld) - whether a material fact of a decisive nature arose in the 12 months preceding the filing of the claim – whether an extension of time within which to file a claim ought to be granted

Limitation of Actions Act 1974 (Qld), s 11, s 29, s 30, s 31

Ferrier v WorkCover Queensland [2019] QSC 11, followed
Healy v Femdale Pty Ltd [1993] QCA 210, applied

Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352, followed

Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20, followed

Wood v Glaxo Australia Pty Ltd [1994] 2 QD R 431, followed

COUNSEL:

P T Cullinane QC for the applicant

C C Heyworth-Smith QC for the respondent

SOLICITORS:

Taylors Solicitors for the applicant

Barry Nilsson Lawyers for the respondent

  1. [1]
    Ellie Ann Wilson (Ellie) wishes to pursue damages for personal injuries arising from an incident which occurred when she was a child. The limitation period within which she was permitted to commence such proceedings expired on 17 August 2016, her 21st birthday.[1]
  2. [2]
    Ellie applies under s 31 of the Limitation of Actions Act 1974 (Qld) (LAA), to extend the limitation period applicable to the subject proceedings.

Background

  1. [3]
    Ellie was born on 17 August 1995. Ellie’s little sister, Kate, was born on 22 January 1997. On approximately 26 February 1999, Kate fell ill with vomiting and diarrhoea.[2]  Kate’s mother was so concerned as to Kate’s state of health that she took Kate to the Mackay Base Hospital on the morning of 27 February 1999.[3]
  2. [4]
    After being assessed at the Mackay Base Hospital, Kate was discharged and taken home by Mrs Wilson. Ellie recalls when Kate returned home, she was unable to get up and play and that Kate appeared to be ignoring Ellie.[4]  Ellie observed Kate then to begin vomiting large volumes of dark brown fluid. An ambulance was called. Ellie was taken to her neighbour’s house. Kate was returned to the Mackay Base Hospital in an ambulance, however (within three hours of her discharge), Kate was dead on arrival.[5]
  3. [5]
    In his report of 3 April 2000, Dr Walker in commenting on the examination notes made by Kate’s treating physician stated:[6]

“The examining doctor reported that she was afebrile, but listless and pale with dry lips. He mentioned that tissue turgor was normal or good and that the abdomen was soft and non-tender. I noticed that the nursing observations included a pulse rate of 170.

…

The description of the baby as being listless and pale, when taken with the recorded pulse rate of 170, I think might have suggested the child was seriously ill and the degree of dehydration was more than mild.”

  1. [6]
    Ellie recalls that time as one of great distress. Ellie subsequently suffered from disturbing dreams.  Ellie deposes that the period between December and February each year is difficult, as Kate’s absence is felt on Christmas, her birthday on 22 January, and the date of her passing on 27 February.[7]
  2. [7]
    Despite these difficulties, Ellie succeeded at school. Ellie considers that it was towards the end of her secondary education that she began to develop what she called panic attacks. On one occasion, either in December 2012 or January 2013, Ellie attended on Ms Boal, a psychologist in Mackay.  Ms Boal provided Ellie with coping strategies to deal with her anxiety, which Ellie found of assistance.[8]
  3. [8]
    In 2013, then aged 17, Ellie commenced studying a Bachelor of Fine Arts (Drama) at the Queensland University of Technology (QUT). Ellie completed her Bachelor of Fine Arts (Drama) in the usual three-year time period required for the degree. Ellie then commenced and completed a Masters of Teaching (Early Childhood) in the usual two-year period. In November 2017, aged 22, Ellie had successfully completed 5 years of tertiary education.
  4. [9]
    When Ellie moved away from her home in Mackay to student accommodation in Brisbane in February 2013, Ellie suffered from panic attacks associated with flashbacks on an increasing basis of 3 to 4 times per week.[9] Ellie attended upon Dr Jennifer Schafer at the QUT Health Service in late 2013, early 2014, and was referred to a psychologist, Ms Pavia. After six sessions of treatment, Ms Pavia said in her report of 30 April 2014:[10]

“Ellie has engaged well in cognitive behaviour therapy to address her symptoms of anxiety, panic, PTSD and depression. We have covered strategies to reduce anxiety; manage panic attacks; sleep routine; and study stress. We have discussed issues around PTSD and grief. We have also started to look more at issues and memories relating to her past and her trauma. Ellie is successfully utilising strategies to reduce her anxiety symptoms and is gaining insight into the past and how it is impacting upon her life currently. She reports benefit from her sessions and I believe she will benefit from ongoing sessions to continue to address these issues.”

  1. [10]
    It is apparent from the record that, with Ms Pavia’s assistance, Ellie was able to successfully complete her studies, engage in sports such as netball,[11] study successfully full time, work part time (such as teaching private students speech and drama), and to maintain a stable relationship with her partner, Mr Clifford.[12]
  2. [11]
    On 17 August 2016, when Ellie turned 21 years, she was by any reasonable measure a successful, if not accomplished, young lady with the expectation of a bright future. After graduating with her Masters degree in November 2017, Ellie commenced employment in January 2018 as a part time teacher at Bethany Lutheran Primary School (“Bethany School”) working two days one week and three days the next week. Ellie supplemented her income with other employment including working as a casual relief teacher with both the Department of Education and Lutheran Education Queensland.[13]
  3. [12]
    Ellie deposes that her Principal at Bethany School had informed her that once the school reaches 320 students, Ellie would be considered for a full-time position.[14] However, in cross examination, Ellie explained despite the student cohort having reached 320 students, she remained on staff as a part-time teacher only.[15]
  4. [13]
    On 30 January 2020, Ellie attended upon her GP, Dr Shipley, at “Top Health Doctors Greenslopes” complaining of headaches. Dr Shipley recorded to appointment as a “long session” and noted:[16]

“Does suffer from long term headaches…has PTSD over sigifanct [sic] event when witnessed her sister dying at 3 y.o - has had counselling everal [sic] years ago…

…

Teachers [sic] young children in arts/drama – part time – going well but can be understandably stressful job as well at times…

…

crying when talking about PTSD and past – appropriate plan:

gave some counselling…

advised to come back for dr [sic] led acupuncture…

se [sic] Dr Vincent for ongoing counselling...

Reason for visit:

PTSD

Concussion.”

  1. [14]
    It should be appreciated that the principle reason for the visit in January 2020 was headaches caused by concussion and the PTSD was very much a secondary issue.
  2. [15]
    A little over five months later, on 9 July 2020, Ellie returned to see Dr Shipley, the Doctor recorded:[17]

“[M]ental health getting more out of control - wanted to re-engage in psychotherapy - last time was in 2015 for 7 months…

…

Going to work still no time off, on school holidays.”

(Emphasis added.)

  1. [16]
    The diagnosis was depression and anxiety and Dr Shipley referred Ellie to Alithea Taylor, clinical psychologist. Ellie attended upon Ms Taylor and the treatment would appear to have been highly beneficial. In this regard, Dr Shipley’s notes on three occasion are particularly relevant. 
  2. [17]
    On 16 October 2020, Dr Shipley records:[18] 

“[H]as shown improvement but is now starting more intense therapy…discussed SSRI to help with psychotherapy – will start paroxetine to help stop…worried about new therapy but excited at same time…aware it may ne [sic] intensive with regard to her past trauma…talked about the possibility of a claim from the hospital associated with the death of her sibling that caused PTSD...discussed how this can also adversely affect her while process if [sic] taking place…gave counselling today…still very nervous but cping [sic] ok in life at the moment… has new part time job teaching drama at school – about 5 hours per week.”

  1. [18]
    On 7 January 2021, Dr Shipley records:[19]

“[H]as noticed paroxetine helping cope with PTSD and anxiety…not escalating has bene [sic] in past…had lots of triggers dueing [sic] xmas as went back to MAckay [sic] where it all occurred and mum tends to be a partial trigger as well...went to a lawyer to discuss affidavit, went through events again, that created first panic attack in 5 weeks in the lawyers [sic] office…understandable…doing well overall…discussed how court case unfortunately holds back some progress as well as it all needs to be revisited…psychologist happy with progress…”

  1. [19]
    On 14 January 2021, Dr Shipley records:[20]

“[C]ame for mental health plan...K10 much better than last year…going well…see mental health plan for detailed plan…seeing counsellor today…meds working well…”

  1. [20]
    I accept Dr Shipley’s astute observations and they accord with my own observations of Ellie as a witness in court. Despite a most careful and gentle cross examination by senior counsel for the respondent, Ellie had difficulty controlling her emotions during cross examination, crying during most of it. As Dr Shipley predicted, the discussion of the past did trigger distress and it may have caused a setback in treatment for the condition.

Extension of time

  1. [21]
    Section 11 of the LAA prevents actions for personal injuries being brought any time after the expiration of three years from the date the cause of action arose, for all personal injuries other than dust-related conditions,[21] and actions for child abuse.[22] By virtue of s 29(1)(c) of the LAA, the period of limitation for a personal injury claim where the right of action arose when the claimant was a child, expires on the claimant’s 21st birthday.[23]
  2. [22]
    As is plain here, Ellie’s right of action arose when she was approximately three-and-a-half years old and therefore expired on 17 August 2016, when Ellie turned 21. On 18 June 2021, Ellie filed a claim and statement of claim in the Supreme Court alleging personal injury as a result of negligence caused by the respondent in respect of the death of her sister Kate. 
  3. [23]
    Section 31(2) of the LAA provides:

“(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—

  1. (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
  1. (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.”

  1. [24]
    Section 30 of the LAA provides:

“30 Interpretation

  1. (1)
    For the purposes of this section and sections 31, 32, 33 and 34—
  1. (a)
    the material facts relating to a right of action include the following—
  1. (i)
    the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
  1. (ii)
    the identity of the person against whom the right of action lies;
  1. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
  1. (iv)
    the nature and extent of the personal injury so caused;
  1. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
  1. (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—
  1. (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
  1. (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;
  1. (c)
    a fact is not within the means of knowledge of a person at a particular time if, but only if—
  1. (i)
    the person does not know the fact at that time; and
  1. (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.
  1. (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.”

  1. [25]
    The focus of the enquiry, therefore, is whether Ellie can satisfy the requirements of s 31 of the LAA and prove that a material fact of a decisive nature has come within her means of knowledge in a period between 18 June 2020 and 18 June 2021.
  2. [26]
    In Queensland v Stephenson,[24] the High Court majority (Gummow, Hayne and Crennan JJ) accepted the construction of Davies JA when his Honour said:

“…The subject of the verb 'was' in that paragraph of s 31, in my opinion, is the compound phrase 'material fact of a decisive character relating to the right of action'. Thus the question is not when all material facts came within the means of knowledge of the applicant. It is when all material facts of a decisive character relating to the right of action came within his means of knowledge.”

  1. [27]
    Further important principles are set out by the majority, Gummow, Hayne and Crennan JJ, in Stephenson as follows:[25]

“[29]  The better view is that the means of knowledge (in the sense given by para (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have ‘a decisive character’. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant's right of action is of a decisive character until a reasonable person ‘knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing’ the features described in subparas (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.

[30]   The practical result of this construction 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.”

(Emphasis added.)

  1. [28]
    Perhaps the most important principle which may derived from their Honours’ reasons at [29], is that an applicant may know all material facts which will not trigger time running against an applicant until all of those material facts are combined to acquire the status of being of a decisive character and that may occur when the ”circumstances” of the applicant alter or “develop”. Furthermore, their Honours’ reasons at [30] highlights the importance of the distinction between justification in bringing an action as required in s 30(1)(b)(i) and mandating one is brought (a different concept) as set out in s 30(1)(b)(ii). The mandatory requirement specifically refers to the applicant’s own interests and circumstances being taken into account.
  2. [29]
    As I said in Ferrier v WorkCover Queensland,[26] there are five steps that an applicant must establish to obtain an extension of the limitation period pursuant to s 31, acknowledging however that the first two steps are a composite test. Therefore, the applicant bears the onus of showing that:
    1. (a)
      all material facts;
    2. (b)
      of a decisive character;
    3. (c)
      was not within the applicant’s means of knowledge until a date no more than 12 months prior to the relevant date (the filing of a claim and statement of claim or the equivalent under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the Personal Injuries Proceedings Act 2002 (Qld), the Motor Accident Insurance Act 1994 (Qld);
    4. (d)
      there is evidence to establish a right of action – “something like a prima facie case”;[27] and
    5. (e)
      no prejudice, in the relevant sense, would be occasioned to the respondent that would justify disallowing the application.
  3. [30]
    If an applicant succeeds in persuading the court in respect of the above five elements, then discretion under s 31(2) of the LAA is enlivened and “the court may order that the period of limitation of the action be extended…”
  4. [31]
    In the present application, senior counsel for the respondent makes no concessions but rather submits that the applicant has not established any of the necessary elements. As set out below, I do not accept this submission.

Material Fact of a Decisive Nature

  1. [32]
    The material fact of a decisive nature relied upon by Ellie is[28] the receipt by Ellie on 14 August 2020 of advice from Ms Taylor, psychologist, as set out in paragraph 47 of Ellie’s affidavit. In paragraph 47, Ellie deposes:[29]

“47. At one of the sessions, on or about 14 August 2020, a discussion came up about my desire to increase my hours of work at Bethany [School]. I wanted to move to full time employment, having previously discussed this with the principal at Bethany [School]. Alithea Taylor counselled me against taking up full time work. She said I would not be able to cope with that given the symptoms of Post-Traumatic Stress Disorder. She said that she wanted to give me a letter for me to give to my employer explaining the symptoms that I was suffering from. I was reluctant to do this.”

  1. [33]
    The effect of a known condition of Post-Traumatic Stress Disorder (PTSD) in disabling Ellie from working full time is a material fact within the meaning of s 30(1)(iv), that is as to the “extent of the personal injury so-caused”.  The other material facts, negligence, the identity of the negligent party, causation, was, as may be seen below, known. Indeed, the nature of the personal injury in the form of PTSD was known, however its extent was not known. Ms Taylor’s advice in counselling Ellie against working full time is certainly a material fact, however, I am not persuaded that that advice alone was of a decisive character within the meaning of s 30(1)(b). As may be seen above in Stephenson,[30] a material fact becomes of a decisive character “if, but only if” it justifies, in an economic sense, the bringing of the claim and mandates in a broader sense, taking into account the applicant’s own personal interests and circumstances, that such a claim ought to be brought.
  2. [34]
    Although I accept Ms Taylor did on 14 August 2020 counsel Ellie against taking up full time work, I do not consider that alone is sufficient to justify, in an economic sense, the bringing of a case, let alone mandates such a course of action as required by s 30(b)(ii) of the LAA. In my view, a competent lawyer would not advise Ellie that she had a worthwhile case until they had received a written report and not simply rely on an oral pronouncement of such an important opinion.
  3. [35]
    On 25 August 2020, Ms Taylor wrote a letter, seemingly to Ellie’s employers, to inform them of Ellie’s condition and advise of the need to take adequate notice of the same.  However, the letter did not record any professional opinion that Ellie could not work full time for any period of time, but rather is optimistic in nature.[31]  The letter records that: “[Ellie] has engaged well in therapy and her prognosis is good, however, it is my expectation she may require treatment for some time to come.” Ms Taylor also stated that Ellie’s current symptoms are “unlikely to impact on Ellie’s day to day vocational activities.”[32] In my view, a competent lawyer would place reliance on Ms Taylor’s letter and conclude that, at that point, the likely quantum of Ellie’s case would be so low that the case would not be economically justifiable.
  4. [36]
    The unchallenged evidence of experienced solicitor Mr Naylor, was that it would cost in the vicinity of $40 000 and $60 000 for Ellie to take her case to the compulsory conference stage.[33] Ms Taylor’s advice was not of the nature so as to justify the bringing of the case in an economic sense and nor, with respect to the difficulties observed above in engaging in the litigation process, is it of the nature to mandate that Ellie should bring a case.
  5. [37]
    I would conclude however that the information provided by Ms Taylor would lead a reasonable person who is intelligent and well educated, like Ellie, to seek an opinion of a psychiatrist upon the likely extent of the post-traumatic stress disorder and in particular in relation to Ellie’s work prognosis. I am fortified in this conclusion by the contents of paragraph 55 of Ellie’s affidavit, in which she deposes that she received advice from Mr John Taylor, a solicitor, that “he did not know whether I had a worthwhile claim..”[34]
  6. [38]
    Mr John Taylor is the principal of Taylors Solicitors in Mackay. Mr Taylor has been a solicitor for 43 years, having been admitted on 31 January 1978 and is very experienced in personal injury litigation. Mr Taylor acted for Ellie’s parents in their personal injury claim against the respondent, having settled those claims in or about 2002, after court proceedings had commenced.
  7. [39]
    After having obtained the information provided in her parents’ litigation and the information in the letter from the psychologist Ms Taylor, the advice from Mr Taylor was to obtain a proper and detailed psychologist’s and psychiatrist’s reports, and until that was done, all that could be said was that Ellie had a “possible claim for damages”.[35]
  8. [40]
    Mr Taylor acted promptly and obtained a report from the psychologist Ms Taylor, the report being dated 1 March 2021[36] and arranged for Ellie to attend upon Dr Frank New, psychiatrist, on 5 March 2021.
  9. [41]
    In her detailed report of 1 March 2021, Ms Taylor, psychologist, has concluded in respect of prognosis that improvements since commencing treatment were significant, however, it was likely that full remediation may take some significant time and that Ellie may experience a resurgence of symptoms in the future.[37] Ms Taylor went on to say:[38] “[b]ased on these facts, it is likely that Ellie’s psychological injuries have impacted on her capacity to manage full time work commitments in a consistent way over the span of her professional career...”
  10. [42]
    Ms Taylor proposed medium to long-term therapy for 12 to 18 months with fortnightly intervention stating that: “[f]unctional treatment outcomes include a remission of symptoms impacting on Ellie’s ability to live a full and happy life both vocationally and personally”. Accepted at its highest, Ms Taylor’s opinion was of an impact, currently of an undefined level, on Ellie’s ability to manage full time work which may resolve in 12 to 18 months. In my view, such evidence does not “justify” an action, let along “mandate” it.
  11. [43]
    Although, due to the date of injury preceding the Civil Liability Act 2003 (Qld), the Act does not apply, in assessing Ellie on 5 March 2021, the psychiatrist Dr New, assessed Ellie as having a Class 2 impairment in respect of adaptation. This type of impairment,  as defined in schedule 6 of the Civil Liability Regulation 2014 (Qld), is a conclusion that Ellie cannot work more than 20 hours in her pre-injury position or could work full time but in a “different” position. 
  12. [44]
    In my view, Dr New’s diagnosis of Ellie as having a Class 2 impairment in respect of adaptation is the material fact of a decisive nature. Whilst it is true that Ellie has been receiving therapy and seeing a psychologist for some time, to address the symptoms of PTSD, depression, and anxiety stemming from the event of 27 February 1999, she had never been informed of any serious economic impact resulting from her condition. By his diagnosis of the class 2 impairment, Dr New put it plainly – Ellie cannot work more than 20 hours a week in her current position and, should she wish to work full time, would be required to change to a “different” position.
  13. [45]
    As the evidence above shows, Ellie has spent several years of her life training to become a teacher and it would now seem is unable to fulfill full-time work in that role due to her diagnoses. Given her extreme youth (relative to a normal working career), the “material fact” that she would not be able to work full-time or pursue employment in her chosen field is one which converts her claim to a “worthwhile claim” which is sufficient to “justify the bringing of an action on the right of action”. Therefore, I conclude that it was not until in early 2021, upon the receipt of Dr New’s reports, that Ellie had all material facts of a decisive nature.

Means of Knowledge

  1. [46]
    The respondent submits that:[39] “[i]n any event, the Applicant took no steps (reasonable or otherwise) prior to the expiration of the limitation period to find out whether her psychological symptoms would give rise to economic loss, making a claim which may result in an award of damages sufficient to justify the bringing of an action.”
  2. [47]
    As explained by P Lyons J in Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352, the means of knowledge test is set out in s 30(1)(c) has both a subjective and objective element. As set out above, it is plain that Ellie is an intelligent, educated young person and taking into account Ellie’s subjective nature, the question then becomes what reasonable steps would a person of Ellie’s intelligent nature and characteristics undertake in order to find out the likely economic impact of her known condition of PTSD.
  3. [48]
    In Healy v Femdale Pty Ltd [1993] QCA 210 the Court said:

“The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take ‘appropriate advice or to ask appropriate questions if in all circumstances it would not be reasonable to expect the plaintiff to have done so.’”

  1. [49]
    The above passage from Healy v Femdale was cited with approval by the Court of Appeal in Suncorp Metway Insurance Limited v Norris [2012] QCA 101 (Daubney J, with whom McMurdo P and Muir JA agreed).[40]
  2. [50]
    The respondent focussed upon a comment recorded in Dr New’s report that Ellie had occasion to “drop back” when she was teaching and “this also happened during her university studies once or twice a year”. Ellie explained in cross examination that dropping back at university meant obtaining an extension for an assignment.[41] The mere fact that a university student may seek an extension on an assignment once or twice per year is not something which, in my view, could be considered as such a severe warning sign of an impending problem to make it reasonable for an intelligent person to seek further medical advice.
  3. [51]
    It is to be recalled that when Ellie attended upon Dr Schafer in 2013, she was aged 18 years and Ellie remained 18 when she received the 10 sessions of therapy from Ms Pavia in 2014. Ms Pavia’s reports note that the absence of further treatment and Ellie’s success in university were all causes for optimism and certainly not warning signs. In the five-year period between 2014 and 2019 Ellie completed her primary degree, her master’s degree and found employment (albeit part time employment). However, the obtaining of part time employment was situational, that is it was caused by the lack of student numbers at that time at Bethany. The reference to dropping back in an employment sense was explained by Ellie as “dropping back from taking extra relief days”.[42]
  4. [52]
    Furthermore, I accept Ellie’s evidence that it has never been indicated to her by any person that she would not obtain fulltime employment. I conclude that despite difficulties, Ellie did get on with her life such that it was not reasonable for her to, at that point, obtain any further advice as to the likely effect of the PTSD. In my view, Ellie did take reasonable steps when she had difficulty in July 2020, by promptly attending on her general practitioner, Dr Shipley. There was then appropriate treatment provided by the psychologist, Ms Taylor.
  5. [53]
    In my view, it was reasonable for Ellie to discuss with Ms Taylor the effect of the condition upon her employment and in particular her ability to work fulltime and this, it appears, is what in fact occurred. In my view the steps taken by Ellie as an intelligent educated person were reasonable insofar as Ellie sought and obtained both medical and legal advice as to her position. In fact, prior to March 2021 the legal advice which Ellie had received (from a very experienced practitioner)[43] was that a claim for damages may be “possible”. It cannot be said that where the scope of a claim, particularly with relevance to the claim’s economic viability, is beyond the means of knowledge of an experienced legal practitioner, it ought to be in the means of knowledge of the applicant, Ellie.
  6. [54]
    I conclude the material facts of a decisive nature , namely, the extent of Ellie’s personal injury and the impact this would have on her ability to work was not within her means of knowledge until she obtained the report of Dr New on 8 March 2021.

Right of Action

  1. [55]
    Section 31(2)(b) requires an application to bring “evidence of a right of action”. Of this requirement Macrossan CJ, in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, said:[44]

“If a general observation is permissible at this point it can be said that applicants for extension of limitation periods are not intended by the legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action. Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge’s mind of the material which the applicant presents or the existence of which he demonstrates or points to. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial. There are some resemblances in this to the situation of a defendant who resists a summary judgment application. The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time… Fundamentally, the standard required on an application for extension of time under the Act comes from the literal words of s. 31(2)(b): ‘evidence to establish the right of action’. These words will be construed according to the evident policy of the legislation.

…One way in which the onus has been expressed is that the applicant must demonstrate something like a prima facie case. The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff’s evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s. 31(2) (b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case… ”

  1. [56]
    Exhibits JCT-31 and JCT-32,[45] the report and file note of Dr Allan Walker, more than adequately meet this test. Senior counsel for the respondent submits that Dr Walker’s report and file note do not satisfy the test because Dr Allan Walker has passed away and therefore such evidence would not be admissible at trial. As Macrossan CJ pointed out in Wood v Glaxo, the evidence need not be in a form which would be admissible at trial. Furthermore, the fact that Dr Walker has now passed away renders his opinion admissible under s 92 of the Evidence Act 1977 (Qld) as numerous authorities have concluded that the word “fact” in s 92 (and equivalent sections in other jurisdictions) is wide enough to cover opinion.[46]

Prejudice

  1. [57]
    The respondent identifies, as specific prejudice, the inability to obtain the record of the one consultation on the psychologist Tanya Boal in 2013. Whilst I accept there is some prejudice to the respondent in this regard, I do not conclude that it is of such substance that it ought to defeat the application. As has been shown, Ellie has received numerous treatment sessions with Ms Pavia and Ms Taylor and at the very least, until Ms Taylor’s report on 1 March 2021, no opinion had been expressed to suggest that Ellie would have any economic impairment as a result of suffering PTSD.
  2. [58]
    Whilst the absence of Ms Boal’s record of the singular attendance does work some prejudice against the respondent, I consider that it is highly likely that the prejudice is minor and inconsequential.
  3. [59]
    The other prejudice pointed to by the respondent is the likelihood of distress being felt by Dr Sadleir. Dr Sadleir was the clinician who saw Kate at the hospital on the morning of 22 February 1999 and has explained the distress that he felt in respect of the case, and in respect of the coronial inquest.[47] Whilst difficult and traumatic for Dr Sadlier, I conclude that does not amount to a specific prejudice. Dr Sadlier has not said to Ms McCutcheon or others that he has lost some memory or evidence of the traumatic incident but rather has informed Ms McCutcheon that the revisiting of the events of the coronial inquest cause him distress.
  4. [60]
    In the present case there are numerous hospital records in respect of Kate’s death, as well as a coronial inquiry. There is a great deal of information regarding the circumstances surrounding liability currently on record. Whilst I accept that there is a presumption of general prejudice in terms of the dimming of recollections over time, that is met in the present case by the hospital record and the coronial inquest.

Conclusion

  1. [61]
    I conclude that the applicant has met each of the five requirements in order to succeed in an application to extend the time period pursuant to s 31 of the LAA. Where the five requirements are satisfied, the discretion reposed by s 31(2) is broad.
  2. [62]
    In my view, the likely trauma to Dr Sadlier by the revisiting of the sad events of 22 February 1999 is not only relevant but is of some weight. That has to be balanced against the rights of the applicant, Ellie, a young person on the cusp of her career who has suffered from a personal injury and faces an uncertain future. Due to the nature of the injury of PTSD, and the likely effect of bringing the claim on Ellie as set out by Dr Shipley, I conclude that there is detriment both to Ellie and to Dr Sadlier in the bringing of a claim, however, that detriment is, in my view, is of less weight than the extinguishment of Ellie’s rights to bring a claim in respect of the PTSD which she is diagnosed with.
  3. [63]
    In my view, where Ellie has in fact already suffered from a relapse in her symptoms as a result of bringing the application and having been medically advised as to the likelihood of harm being suffered by bringing the claim, yet nonetheless persists in bringing her claim fortifies the conclusion that it is appropriate that the discretion to extend the time limitation period ought to be exercised in her favour.
  4. [64]
    I conclude that the application has succeeded. I order that:
  1. 1.The period of limitation within which to commence an action for damages for personal injuries suffered by the applicant arising from the subject incident on 27 February 1999 be extended up to, and including, 25 June 2021. 
  2. 2.The respondent file and serve written submissions as to costs within 7 days hereof and the applicant file and serve written submissions in reply within 3 days’ receipt of the respondent’s written submissions.

Footnotes

[1] Limitation of Actions Act 1974 (Qld) s 29(2)(3).

[2]Exhibit JCT-31 to the affidavit of John Cooper Taylor filed 21 May 2021, page 298.

[3]Exhibit JCT-29 to the affidavit of John Cooper Taylor filed 21 May 2021, page 295.

[4]Affidavit of Ellie Ann Wilson filed 21 May 2021, paragraph 20.

[5]Exhibit JCT-29 to the affidavit of John Cooper Taylor filed 21 May 2021, page 295.

[6]Exhibit JCT-31 to the affidavit of John Cooper Taylor filed 21 May 2021, page 298.

[7]Affidavit of Ellie Ann Wilson filed 21 May 2021, paragraph 31.

[8]Affidavit of Ellie Ann Wilson filed 21 May 2021, paragraph 33.

[9]Affidavit of Ellie Ann Wilson filed 21 May 2021, paragraph 35.

[10]Exhibit JCT-9 to the affidavit of John Cooper Taylor, page 84.

[11]See Exhibit JCT-9 to the affidavit of John Cooper Taylor, page 85.

[12]Affidavit of Ellie Ann Wilson filed 21 May 2021, paragraph 38, 40.

[13]Affidavit of Ellie Ann Wilson filed 21 May 2021, paragraph 8-14.

[14]Affidavit of Ellie Ann Wilson filed 21 May 2021, paragraph 16.

[15]T1-5.

[16]Exhibit JCT-10 to the affidavit of John Cooper Taylor filed 21 May 2021, page 93.

[17]Exhibit JCT-10 to the affidavit of John Cooper Taylor filed 21 May 2021, page 93-94.

[18]Exhibit JCT-10 to the affidavit of John Cooper Taylor filed 21 May 2021, page 94-95.

[19]Exhibit JCT-10 to the affidavit of John Cooper Taylor filed 21 May 2021, page 95.

[20]Exhibit JCT-10 to the affidavit of John Cooper Taylor filed 21 May 2021, page 95.

[21] Limitation of Actions Act 1974 (Qld) s 11(2).

[22] Limitation of Actions Act 1974 (Qld) s 11A.

[23]That is, three years after they turn 18.

[24](2006) 226 CLR 197 at 205 [19].

[25] Queensland v Stephenson (2006) 226 CLR 197 at 208 [29]-[30].

[26][2019] QSC 11 at [23].

[27] Wood v Glaxo Australia Pty Ltd [1994] 2 QD R 431 at 434.

[28]Exhibit 1 to the hearing of 14 July 2021, paragraph 16.

[29]Affidavit of Ellie Ann Wilson filed 21 May 2021.

[30](2006) 226 CLR 197.

[31]Exhibit JCT-6 to the affidavit of John Cooper Taylor filed 21 May 2021, page 56.

[32]Exhibit JCT-6 to the affidavit of John Cooper Taylor filed 21 May 2021, page 56.

[33]Exhibit 4 to the hearing of 14 July 2021.

[34]Affidavit of Ellie Ann Wilson filed 21 May 2021, paragraph 55.

[35]Paragraph 59, affidavit of Ellie Ann Wilson filed 21 May 2021.

[36]Exhibit JCT-7 to the affidavit of John Cooper Taylor filed 21 May 2021.

[37]Exhibit JCT-7 to the affidavit of John Cooper Taylor filed 21 May 2021, page 62-63.

[38]Exhibit JCT-7 to the affidavit of John Cooper Taylor filed 21 May 2021, page 63.

[39]Exhibit 2 to the hearing of 14 July 2021, paragraph 25.

[40]At [43].

[41]T1-13.

[42]T1-13, line 18.

[43]Above at [38]-[39].

[44]At 434-435.

[45]To the affidavit of John Cooper Taylor filed 21 May 2021.

[46] Warner v Women's Hospital [1954] VLR 410 at 415; Lenehan v Queensland Trustees Ltd [1965] Qd R 559; Morley v National Insurance Co [1967] VR 566; Mansour v Standard Telephone and Cables Pty Ltd [1983] 3 NSWLR 205 (CA); Supetina Pty Ltd v Lombok Pty Ltd (1984) 5 FCR 439; Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 707.

[47]Affidavit of Milyka Lee McCutcheon filed 12 July 2021, paragraph 15-16.

Close

Editorial Notes

  • Published Case Name:

    Wilson v Mackay Hospital and Health Service

  • Shortened Case Name:

    Wilson v Mackay Hospital and Health Service

  • MNC:

    [2021] QSC 178

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    29 Jul 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ferrier v WorkCover Queensland [2019] QSC 11
2 citations
Jump To
Cite 1 - [2019] QSC 11
Cite 2 - [2019] QSC 11
Healy v Femdale Pty Ltd [1993] QCA 210
2 citations
Jump To
Cite 1 - [1993] QCA 210
Cite 2 - [1993] QCA 210
Honour v Faminco Mining Services Pty Ltd [2009] QCA 352
2 citations
Jump To
Cite 1 - [2009] QCA 352
Cite 2 - [2009] QCA 352
Lenehan v Queensland Trustees Ltd [1965] Qd R 559
1 citation
Jump To
Cite 1 - [1965] Qd R 559
Mansour v Standard Telephones and Cables Pty Ltd [1983] 3 NSWLR 205
1 citation
Jump To
Cite 1 - [1983] 3 NSWLR 205
Morley v National Insurance Co [1967] VR 566
1 citation
Jump To
Cite 1 - [1967] VR 566
State of Queensland v Stephenson (2006) 226 CLR 197
4 citations
Jump To
Cite 1 - (2006) 226 CLR 197
Cite 2 - (2006) 226 CLR 197
Cite 3 - (2006) 226 CLR 197
Cite 4 - (2006) 226 CLR 197
State of Queensland v Stephenson & Anor (2006) HCA 20
1 citation
Jump To
Cite 1 - (2006) HCA 20
Suncorp Metway Insurance Limited v Norris [2012] QCA 101
1 citation
Jump To
Cite 1 - [2012] QCA 101
Supetina Pty Ltd v Lombok Pty Ltd (1984) 5 FCR 439
1 citation
Jump To
Cite 1 - (1984) 5 FCR 439
Trade Practices Commission v TNT Management Pty Ltd & Ors (1984) 56 ALR 647
1 citation
Jump To
Cite 1 - (1984) 56 ALR 647
Warner v Women's Hospital (1954) VLR 410
1 citation
Jump To
Cite 1 - (1954) VLR 410
Wood v Glaxo Australia Pty Ltd[1994] 2 Qd R 431; [1993] QCA 114
3 citations
Jump To
Cite 1 - [1994] 2 Qd R 431
Cite 2 - [1994] 2 Qd R 431
Cite 3 - [1994] 2 Qd R 431

Cases Citing

Case NameFull CitationFrequency
Heathcote v Oaky Creek Coal Pty Ltd [2021] QSC 1841 citation
Heathcote v Oaky Creek Coal Pty Ltd (No 2) [2021] QSC 2182 citations
Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2021] QSC 240 2 citations
Wilson v Mackay Hospital and Health Service (No 2) [2021] QSC 214 5 citations
1

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