Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QSC
  3. 2021
  4. Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) - [2021] QSC 240

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •  Notable Unreported Decision
  • Appeal Determined - Special Leave Refused (HCA)

Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)[2021] QSC 240

Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)[2021] QSC 240

SUPREME COURT OF QUEENSLAND

CITATION:

Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2021] QSC 240

PARTIES:

JESSIE PATRICIA MAGAREY

(Applicant)

v

SUNSHINE COAST HOSPITAL AND HEALTH SERVICE (NAMBOUR HOSPITAL)

(Respondent)

FILE NO/S:

BS 2970 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

24 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2021

JUDGE:

Brown J

ORDER:

The order of the Court is:

  1. The application filed 15 March 2021 is dismissed.
  2. The parties are to provide written submissions as to costs within seven days of the date of the delivery of these reasons.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where the applicant seeks an extension of the limitation period applicable to any claim for damages for personal injuries pursuant to s 31 of the Limitations of Actions Act 1974 (Qld) - whether the applicant has established such an extension should be granted – whether an opinion provided by a medical specialist is a material fact – whether, if the opinion is a material fact, the material fact is of a decisive character – whether the material fact was not within the applicant’s means of knowledge until a date of no more than 12 months prior to the relevant date – whether there is evidence to establish a right of action against the respondent – whether there is no prejudice occasioned to the respondent that would justify disallowing the application and there can be a fair trial in the matter

Limitations of Actions Act 1974 (Qld) ss 11, 30, 31

Personal Injuries Proceedings Act 2002 (Qld) ss 9A, 43

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Carlowe v Frigmobile Pty Ltd [1999] QCA 527

Castillon v P & O Ports Limited (No. 2) [2008] 2 Qd R 219

Dick v University of Queensland [2000] 2 Qd R 476

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234

Ervin v Brisbane Health Authority & Anor [1993] QCA 548

Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112

Healy v Femdale Pty Ltd [1993] QCA 210

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

HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325

NF v State of Queensland [2005] QCA 110

Pizer v Ansett Australia Limited [1998] QCA 298

State of Queensland v Stephenson (2006) 226 CLR 197

Stephens v Paradise Ultrasound Specialists Pty Ltd (2019) 1 Qd R 254

Sugden v Crawford [1989] 1 Qd R 683

Suncorp Metway Insurance Limited v Norris [2012] QCA 101

Watters v Queensland Rail [2001] 1 Qd R 448

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

Wolverson v Todman [2016] 2 Qd R 106

COUNSEL:

R D Green for the Applicant

B F Charrington for the Respondent

SOLICITORS:

CMC Lawyers for the Applicant

Corrs Chambers Westgarth for the Respondent

  1. [1]
    The applicant, Ms Magarey, seeks an extension of the limitation period applicable to any claim for damages for personal injuries pursuant to s 31 of the Limitations of Actions Act 1974 (Qld) (the LAA) she may wish to pursue against the respondent, the Sunshine Coast Hospital and Health Service (Nambour Hospital). The question for this Court is whether the applicant has established such an extension should be granted.
  2. [2]
    The applicant injured her right ankle descending a ladder in May 2013. She did not think it a serious injury but when the pain became severe, she sought treatment.  As a result of advice and treatment from a doctor at Nambour Hospital she underwent ankle fusion surgery twice between 2015 and 2016. After being advised there was non-fusion and pins needed to be removed, she consulted a further doctor who advised that further surgery was required in December 2016. At that point, she turned her mind to whether she might have a legal claim in relation to the treatment she had received. In 2017 she developed an infection of the bone. Following a further four surgeries, she was advised in February 2018 that she required a below knee amputation which occurred in 2018. Ms Magarey had consulted solicitors in early 2017, who advised her in July 2017 that she did not have any prospect of success in making a claim. In August 2017 she contacted CMC Lawyers who she engaged to act on her behalf on 6 September 2017. CMC Lawyers obtained a medical opinion of Dr Baker in June 2020 and a medical opinion of Professor Higgs on 27 August 2020.
  3. [3]
    It is contended on behalf of the applicant that it was only after Professor Higgs’ report was received on or about September 2020 that the applicant appreciated the claim she might have, after she became aware of the nexus between the treatment forming the basis upon which the claim is said to arise and the subsequent development of an infection which resulted in a below the knee amputation sometime later. That appreciation is contended to be the material fact which is the basis of the present application.
  4. [4]
    The present application was made on 19 March 2021 and supporting material was served on 9 April 2021.
  5. [5]
    Section 11 of the LAA prevents actions for personal injuries being brought after the expiration of three years from the date of the cause of action.
  6. [6]
    The limitation period likely expired in May 2018 in relation to some acts of alleged negligence and possibly in August 2019 in relation to others.
  7. [7]
    Section 31 of the LAA provides for the circumstance when the Court may order that the period of limitation for the action be extended so that it expires at the end of one year after the critical date which, in this case, is 30 September 2020.
  8. [8]
    The extension of time is sought for on or about 30 September 2021 on the basis that the applicant only became aware of the material fact on or about that date when the applicant was sent a Part 1 and 2 Notice of Claim by her solicitors and there was a brief conversation between the applicant and CMC Lawyers as to the content of the notice and the fact that there was a basis for the claim to proceed. This followed CMC Lawyers’ receipt of the report of Professor Higgs on or about 27 August 2020 although it was dated 30 August 2020.
  9. [9]
    The respondent opposes the granting of an extension on the basis that the material fact relied upon by the applicant was available within the limitation period, or were within her means of knowledge prior to the critical date, had reasonable steps been taken to ascertain the fact by the applicant’s solicitors and the applicant personally.
  10. [10]
    It is necessary to consider the chronology of events, the legislation and the relevant legal principles before considering whether the applicant has established that:[1]
    1. (a)
      the opinion of Professor Higgs is a material fact;
    2. (b)
      assuming that there is a material fact, the material fact is of a decisive character;
    3. (c)
      the material fact was not within the applicant’s means of knowledge until a date of no more than 12 months prior to the relevant date, namely in this case 30 September 2020;[2]
    4. (d)
      there is evidence to establish a right of action against the respondent; and
    5. (e)
      there is no prejudice occasioned to the respondent that would justify disallowing the application, and there can be a fair trial in the matter.
  11. [11]
    The respondent does not contend that the evidence is insufficient to establish a right of action solely for the purposes of this application, nor does the respondent raise any specific prejudice relevant to the application. The primary issues are whether sub-paragraphs (b) and (c) above can be established by the applicant. The onus is on the applicant to establish that the Court should grant the extension.

The Legislation

  1. [12]
    Section 31 of the LAA provides:

“31  Ordinary Actions

(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

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

(a) before the commencement of this Act; or

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

  1. [13]
    Section 30 of the Act defines the expressions “material facts relating to a right of action”, “of a decisive character” and “means of knowledge” as follows:

“30 Interpretation

(1) For the purposes of this section and sections 31, 32, 33 and 34—

(a) the material facts relating to a right of action include the following—

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

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

(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

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

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

(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

(c) a fact is not within the means of knowledge of a person at a particular time if, but only if—

(i) the person does not know the fact at that time; and

(ii) as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.

(2) In this section—

“appropriate advice”, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”

Legal Principles

  1. [14]
    The onus lies on the applicant to establish that she is entitled to an extension of the limitation period. According to Dawson J in Do Carmo v Ford Excavations Pty Ltd,[3] as was cited by Thomas JA in Dick v University of Queensland:[4]

“…The first step is to inquire whether the facts of which the appellant was unaware were material facts… If they were, the next step is to ascertain whether they were of a decisive character…If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date.”

  1. [15]
    How s 30 of the LAA applies to the discharge by the applicant of the onus in relation to s 31(2)(a) of the LAA was explained by Gummow, Hayne and Crennan JJ in State of Queensland v Stephenson.[5] There are, according to the majority, two criteria to be considered in relation to s 31(2)(a).  The first criterion looks at whether there are material facts relating to a right of action to which s 30(1)(a) is relevant.  The second criterion to be considered, in determining whether a material fact is “decisive”, looks to the response of an actor.[6]  The Court is then to consider the response of a reasonable person as provided for in s 30(1)(b) of the LAA.
  2. [16]
    Section 30(1)(c) of the LAA is relevant to determining what is within the means of knowledge of the applicant.  What must not have been within the means of knowledge of the applicant until the relevant date is a material fact of a decisive character.[7]
  3. [17]
    The High Court held in State of Queensland v Stephenson[8] that the phrase “material fact of a decisive character relating to the right of action” is to be interpreted as a composite phrase.  The majority of the High Court stated that:[9]

“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… that in a sense none of the material facts relating to an 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 sub-paras (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.

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.”

  1. [18]
    A material fact of a decisive character under s 30(1)(b) of the LAA was said by P Lyons J in Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor[10] to be a fact that first “would be regarded as showing that an action would, but for a defence based on the Limitation Act, have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of the action”, and secondly, would along with other facts known to the potential claimant “be regarded as showing that the potential claimant should, in that person’s own interest and taking that person’s circumstances into account, bring an action on the right of action”.[11]  His Honour further noted that “[e]ach condition is to be regarded from the point of view of a reasonable person; and that person is taken to be a person who has taken ‘the appropriate advice on those facts.’”[12] 
  2. [19]
    In determining whether a material fact of a decisive character was not within the means of knowledge of a person at a particular time, the person must not have then known the fact, and so far as the fact was able to be found out by the person, the person must have taken all reasonable steps to find that fact out.
  3. [20]
    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.[13]  The test is one which has both subjective and objective elements.[14]   In Pizer v Ansett Australia Limited,[15] which was referred to by Keane JA with approval in HWC v The Corporation of the Synod of the Diocese of Brisbane,[16] Thomas JA referred to earlier observations of the Court in Healy v Femdale Pty Ltd[17] as follows:

“The question whether such a person has taken all reasonable steps to ascertain the nature and extent 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 of effect upon her working capacity’.

There is no requirement, actual or notional, to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so.  The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had.”

  1. [21]
    Apart from the limitation issue the applicant must establish there is a right of action against the respondent.[18] In the present case the cause of action is for damages for personal injuries arising out of the negligence of the Respondent but its servants or agents for whom it is vicariously liable.
  2. [22]
    The applicant must also show that the Court should exercise its discretion in favour of granting the extension. In particular, the applicant must show that the respondent is not prejudiced such that there cannot be a fair trial.[19]

Chronology of Events

  1. [23]
    On 2 May 2013, the applicant injured her right ankle while using a ladder.
  2. [24]
    On 7 June 2013, the applicant attended her general practitioner, Dr Wall, who referred her to the Nambour Hospital. On 2 July 2013, the applicant had radiology conducted on her ankle. The applicant continued to see Dr Wall, and also saw Dr Dick at the Nambour Hospital. The applicant also attempted to use ankle braces, moon boots and strapping to reduce her pain. She also attended a musculoskeletal physician.
  3. [25]
    On 29 August 2013, the applicant was placed on the waitlist at Nambour Hospital Orthopaedic Department and was listed as a category 3 patient. On 17 April 2014, the applicant was referred by Dr Wall to Dr Ho, who is an orthopaedic specialist. An MRI of the applicant’s ankle was conducted on 28 April 2014 and it revealed a longitudinal tear of posterior tibialis. The applicant continued attending Dr Wall, complaining of ankle pain.[20]
  4. [26]
    On 28 September 2014, the applicant attended Dr Dick who advised that the applicant should consider ankle fusion surgery. On 12 May 2015, the applicant underwent the surgery but continued to experience pain with no improvement.[21]
  5. [27]
    On 20 April 2016, the applicant had a consultation with Dr Dick about a revision procedure, which was then performed by Dr Dick on 9 August 2016. Following this, the applicant experienced severe pain.
  6. [28]
    On 29 November 2016, Dr Dick informed the applicant that there was still non-fusion and advised that the pins would need to be removed. At this point the applicant turned her mind to whether she may have a legal claim in relation to the treatment she had received.
  7. [29]
    The applicant then requested a referral to a different orthopaedic surgeon. She subsequently attended a consultation with Dr Noovao on 20 December 2016. Dr Noovao advised that the applicant should undergo a hip graft. That resulted in the applicant considering that something may have gone wrong with the surgery given, by this stage, it was some eighteen months after the surgery and it had not improved her situation.
  8. [30]
    In early 2017, the applicant considered the possibility of a claim in relation to her initial treatment and subsequently met with a solicitor from Carswell & Co and instructed them to act on her behalf.
  9. [31]
    On 20 March 2017, Dr Noovao performed a revision right subtalar fusion and right iliac bone graft. On 4 April 2017 an x-ray scan showed reduced bone density and soft tissue swelling.
  10. [32]
    On 9 May 2017, the applicant, upon the request of Carswell & Co, transferred $500 into the solicitors’ trust account. On 4 July 2017, Carswell & Co advised the applicant that there were no prospects of success and she was refunded $500. She was told to obtain an expert report to confirm matters, and that it would cost her $5000.
  11. [33]
    On 17 August 2017 the applicant contacted CMC Lawyers[22], who requested the applicant’s medical records on 28 August 2017.
  12. [34]
    CMC Lawyers were engaged to act on the applicant’s behalf on 6 September 2017. The same day, CMC Lawyers served a s 9A Personal Injuries Proceedings Act 2002 (Qld) (PIPA) initial notice on Dr Dick and the Nambour Hospital.
  13. [35]
    On 1 September 2017, the applicant underwent an MRI which showed strong signs of infection of her bone. The MRI reported that “the findings are highly suspicious for osteomyelitis involving the calcaneus, talus and distal tibia.”[23] Between 7 September and 12 October 2017, the applicant underwent four subsequent surgeries.  On 12 October 2017 the applicant was found to have Finegoldia Magna, a rare infection of the bones and joints usually caused by foreign materials such as nails and screws that are used during orthopaedic surgery.
  14. [36]
    On 31 October 2017, the respondent’s solicitors advised CMC Lawyers by phone that their client had already responded to the applicant’s previous solicitors pursuant to s 9A(8) of PIPA. That response had included providing relevant medical records. While it was contended that contact was not made with someone who could be regarded as having knowledge of the firm, a diary note had been made of the contact. No action was evidently taken as a result of the contact.
  15. [37]
    On 25 January 2018, after a follow up appointment on 28 November 2017, the applicant was advised by Dr Sowden that the infection was worsening, and that amputation may be required.
  16. [38]
    On 15 February 2018, CMC Lawyers briefed Counsel to review the applicant’s medical records that they had received and to draft a letter of instruction to an orthopaedic surgeon to obtain an opinion in respect of breach of duty and causation.
  17. [39]
    On 19 February 2018, the applicant was advised by Dr Gray that amputation was the only option.
  18. [40]
    On 23 August 2018, a below the knee amputation was performed on the applicant.
  19. [41]
    On 2 August 2018, CMC Lawyers followed up with Counsel for the requested letter of instruction. On 6 August 2018, CMC Lawyers were advised by Counsel that the brief did not contain all the relevant medical records that were required from the respondent. On 7 August 2018, CMC Lawyers emailed Counsel the applicant’s clinical records held on the file.
  20. [42]
    According to the affidavit of Ms Wills,[24] she was informed that the firm formed the view that around this time the applicant was not in a good way and “it was difficult to determine the right course of action with respect to her claim given the pending surgery and likely impacts of the same,” although it did not affect the applicant’s ability to give instructions. Given the solicitors had not yet obtained a draft letter of instructions from Counsel, which had been requested on 15 February 2018, and all relevant medical records had not apparently been obtained, this should hardly have created a dilemma for the solicitors involved, given there was, at that time, no pending instructions that appeared to be required from the applicant in order to advance the question of whether the applicant had a claim.
  21. [43]
    On 11 September 2018, the respondent informed CMC Lawyers that the s 9A PIPA Notice Claim had been complied with, and the applicant’s medical records had been provided to the applicant’s former solicitors. CMC Lawyers requested the records from Carswell & Co. CMC Lawyers subsequently followed up with Carswell & Co until the applicant’s file was provided on 24 January 2019. On 29 January 2019, Counsel was subsequently briefed with various medical records obtained by CMC Lawyers.
  22. [44]
    On 12 February 2019, Counsel provided a letter of instruction to Professor Higgs as to his opinion on duty and causation. It was provided to Professor Higgs. He provided an invoice for the review of documents and a preliminary opinion in February 2019.
  23. [45]
    On 4 March 2019, Ms Wills commenced employment with CMC Lawyers. On 29 March 2019, Ms Wills conducted a file review and requested an urgent teleconference with Professor Higgs and Counsel. She instructed that any request for any outstanding copies of the applicant’s medical records be followed up.
  24. [46]
    On or about 17 April 2019, Professor Higgs advised CMC Lawyers that he required pre-payment of his invoice before a proposed teleconference, and advised that he would not be able to provide a preliminary opinion without full records of the applicant from Dr Noovao and the hospital where the applicant underwent the amputation. On 21 May 2019, a cheque was sent to Professor Higgs in relation to his invoice of 21 February 2019.
  25. [47]
    Between April and September 2019, CMC Lawyers communicated with various medical centres and practitioners and arranged for payment of invoices for the records and reports. Some records were received and forwarded to Professor Higgs and Counsel.
  26. [48]
    On or around13 August 2019, a telephone conference occurred with Professor Higgs and Counsel. Professor Higgs advised that he required further medical records. Further records were sent by CMC Lawyers to Professor Higgs on 30 October 2019.
  27. [49]
    On 6 December 2019, an in-person conference between Counsel and Professor Higgs occurred, following which Counsel advised CMC Lawyers that expert radiology opinion was required for Professor Higgs to finalise his opinion. It was not until 19 March 2020, that CMC Lawyers contacted Dr Luke Baker, a radiologist, requesting an opinion.
  28. [50]
    In March 2020, Ms Wills instructed staff to follow up or request any of the applicant’s medical records and radiology imaging they did not have on file. Multiple requests were made in April 2020.
  29. [51]
    On 6 May 2020, the respondent’s solicitors advised CMC Lawyers that any claim from the s 9A PIPA notice was statute barred. The respondent’s solicitors asked CMC Lawyers to advise within fourteen days whether the claim was proceeding. The respondent’s solicitors otherwise requested that they be served with the relevant application and supporting material if the applicant was continuing with her claim. On 25 May 2020, CMC Lawyers advised the respondent’s solicitors that the applicant was proceeding with her claim, and that the application and supporting material would be served in due course. On 24 June 2020, CMC Lawyers received the report and opinion of Dr Baker, which was forwarded to Counsel and Professor Higgs. On 7 July 2020, Counsel and Professor Higgs had a telephone conference in order for Professor Higgs to finalise his opinion as to “breach of duty and causation”.
  30. [52]
    On 27 August 2020, CMC Lawyers received a report from Professor Higgs.[25]
  31. [53]
    On 8 September 2020, CMC Lawyers sent a cheque to Professor Higgs in response to an invoice dated 4 August 2020 requiring pre-payment prior to receipt of his written opinion.
  32. [54]
    On 29 September 2020, CMC Lawyers sent the reports of Dr Baker and Professor Higgs to Corrs Chambers Westgarth. Professor Higgs’ opinion was based on the medical records provided to him and the report of Dr Baker.
  33. [55]
    On 30 September 2020, CMC Lawyers sent a Notice of Claim Part 1 and a blank Notice of Claim Part 2 to the applicant and arranged for the applicant to be assessed by several different specialists. The applicant returned the signed Notice of Claim on 21 October 2020. CMC Lawyers served the forms on the respondent’s solicitors and Crown Law on 27 October 2020.
  34. [56]
    On 26 November 2020, CMC Lawyers wrote to the respondent’s solicitors and proposed that an application under s 31 of the LAA be deferred to a trial judge and the parties enter into an agreement to allow the applicant to file proceedings. On 1 December 2020, the respondent’s solicitors emailed CMC Lawyers to request an explanation for the delay in the applicant pursuing her claim.
  35. [57]
    An explanation was provided on 21 January 2021, with Ms Wills stating she had difficulty accessing the applicant’s file due to a lockdown until 11 January 2021.
  36. [58]
    On 28 January 2021, the respondent’s solicitors advised that they required the applicant to bring the current application to extend the limitation period before it took steps in the matter.

The Current Application

  1. [59]
    The present application was not filed until March 2021. Supporting affidavits of Ms Wills and the applicant were not filed until May 2021. The chronology of events set out above has been derived from those affidavits, as well as an affidavit of Ms Stewart, relied upon by the respondent.

Evidence of Ms Wills

  1. [60]
    Ms Wills is a solicitor and has had conduct of the applicant’s file, under supervision of a partner, since approximately March 2019. It is surprising that she gave evidence, including for the period prior to her employment based on a review of the file, when her firm was engaged by the applicant on approximately 17 August 2017. Given there were periods of significant delays which had occurred, which raise potentially serious issues in relation to the conduct of the file, which largely occurred before she became involved, it is surprising a partner of the firm did not give evidence.
  2. [61]
    Only Ms Wills was cross-examined. Ms Wills was a generally honest witness and appeared to be a competent solicitor in the way she had conducted the file. However, while she sought to answer the questions to the best of her ability, some of her answers sought to cast the firm in the most positive light when she was speculating in relation to what had occurred prior to her involvement. It is regrettable that she was placed in a position where she was having to respond on behalf of the firm, when it should have been a partner responding.
  3. [62]
    It was evident that there were lengthy delays that occurred in the conduct of the file, as can be seen from the chronology above. Medical records were requested after the engagement of CMC Lawyers in 2017, some of which were not followed up until after March 2019 and some not until April 2020. Requests were not made for the relevant records from Creswell & Co until September 2018 and the requests were not followed up until January 2019.  The delays also include the bringing of the present application which, while the application itself was filed on 15 March 2021, was adjourned and supporting affidavit material was not filed until late May 2021. The application was not heard until 17 June 2021.
  4. [63]
    Much significance was attached to the delay for which the applicant’s solicitors were responsible by the respondent. Criticism was rightly levelled against the applicant’s solicitors by the respondent as to the delay, which had resulted in the respondent’s solicitors closing their file on two occasions as a result of the lack of communication and significant delays between the s 9A PIPA notice being served on the respondents and any further action being taken. While Ms Wills explained the lack of action being taken, particularly in terms of steps under PIPA to preserve time limits, as being due to the firm not wanting to engage in fruitless litigation, that does not provide any proper explanation for the failure to follow up the retrieval of medical records and to ensure an expert report was obtained to determine whether the applicant had a claim worth pursuing.
  5. [64]
    An initial letter of instruction was not provided to Professor Higgs until 21 February 2019 after Counsel provided a draft on 12 February 2019. Ms Wills began to work on the file in March 2019 and took steps to obtain medical records, which had been requested in 2017. In April 2019, Professor Higgs indicated that he could not provide a preliminary opinion without records from the respondent and Dr Noovao. Steps were taken to obtain further records. While Professor Higgs required records to be provided to him, there is no reason that they could not have been obtained in 2017, other than the fact that there was a failure to follow up on requests made and to obtain the relevant file from Carswell & Co who had been given the respondents records. Similarly, while Professor Higgs required a report to be provided by a radiologist, the records provided to Dr Baker, the radiologist who provided a report requested by Professor Higgs, were historical records.  CMC Lawyers were written to on 6 May 2020 by Corrs Chambers Westgarth who stated that the claim foreshadowed by the PIPA notice was statute barred and requesting action by them in fourteen days. CMC Lawyers advised on 26 May 2020 that their client was proceeding with the claim and any application and supporting material would be served in due course. Despite this, a letter of instruction based on the historical medical records was not provided to Professor Higgs until 1 July 2020. The letter of instruction dated 1 July 2020 to Professor Higgs requested an expert liability report which contained a far more detailed summary of medical records than the letter of February 2019 and expanded upon the questions asked, although still focussing on the treatment by Dr Dick but expanding to questions relevant to the infection suffered and subsequent amputation.[26] The questions were apparently modified by an email dated 5 August 2020 which is referred to in paragraph 16 of Professor Higgs report.
  6. [65]
    Ms Wills of CMC Lawyers explained the delay that had occurred to Corrs Chambers Westgarth arose out of back and forth correspondence with Carswell & Co between September 2017 and 11 September 2018, when they received the letter from Corrs Chambers Westgarth and subsequently requested the file from Carswell & Co, which was not received until 24 January 2019. Ms Wills explained that CMC Lawyers then obtained the records requested by Professor Higgs in a telephone conference that occurred shortly after providing a letter of instruction in February 2019.[27]
  7. [66]
    CMC Lawyers said, as to the delay between the initial letter of instruction and the report of Professor Higgs, the firm was conscious of the advice that had been given to the applicant by Carswell & Co that her claim had no reasonable prospects and was “conscious that our client’s claim needed to be thoroughly investigated and needed to be satisfied that all relevant records had been received prior to obtaining an expensive written medico-legal opinion on liability and causation which this firm had agreed to fund”.
  8. [67]
    While one understands the firm needing to confirm that the claim of the applicant had merit, such an explanation does not adequately explain the lengthy delays in CMC Lawyers taking steps to get the relevant records, brief an expert and obtain a report after they had been engaged, particularly when it was aware that the alleged negligence related to, inter alia, surgery first carried out in May 2015 and when it was aware of the time frames that had to be met under PIPA prior to being able to instigate proceedings. In cross-examination, Ms Wills clarified that CMC Lawyers did not seek a report to just address the matters in s 9A of PIPA, even though a full liability report was not required, stating they did not do different requests at the start of or end of the claim.  Ms Wills also agreed that the medical records that were requested in April 2019 were the same doctors who had been requested to provide records in August 2017. Ms Wills also agreed that the applicant did not need  a certain case before taking steps to preserve the applicant’s limitation period under s 43 of PIPA, with the only explanation being that there was doubt as to the prospects of her claim which was the view it had had when the limitation period expired in May 2018.[28] While Ms Wills stated that the questions formulated for Professor Higgs were based on a lot of medical records that had to be obtained, she quite properly conceded that at least in some areas there may have been a gap of some years between the office making the initial requests and the following up of requests,[29] and that the records related to the period up until the amputation of the applicant’s leg in August 2018.[30]
  9. [68]
    There is no reasonable explanation as to why CMC Lawyers could not have obtained historical medical records and briefed Professor Higgs well in advance of when he was briefed. Even accepting the applicant’s submission that the loss and damage did not begin to flow until well after the initial surgery in May 2015 and August 2016 when the applicant suffered a below the knew amputation of her right leg, that occurred in August 2018. Even taking account of the applicant’s understandable trauma and difficulty in being able to engage at that time, the applicant’s solicitors have not identified what engagement was required with the applicant that can explain the further delay, given that Professor Higgs and Dr Baker’s reports were largely based on historical medical records and not an examination of the applicant.
  10. [69]
    However, to focus solely on the conduct of the applicant’s lawyers can lead one into potential error in applications such as the present one. Any failures of the applicant’s solicitors to take reasonable steps cannot simply be attributed to the applicant for the purposes of considering whether an extension should be granted. I will return to this matter when considering the preconditions which must be satisfied by the applicant in relation to the proposed extension.

Evidence of the Applicant

  1. [70]
    Two affidavits were given by Ms Magarey. Both suffered from being cast with a high degree of generality.  Ms Magarey was not cross-examined.
  2. [71]
    Ms Magarey suffers a number of medical conditions apart from the one presently the subject of this application including the rare condition Ehlers-Danlos syndrome. She states that despite those conditions, she was, prior to the present condition, living an independent and fruitful life and was able to maintain employment. Her right ankle was injured after coming down a ladder in 2013 which subsequently became painful and difficult for her to bear weight on it. That led to her consulting with different medical practitioners. In September 2014 she consulted with Dr Dick to discuss her restricted ankle movement. By that time, she required a wheelchair. He advised her to consider ankle fusion. She moved to Maryborough to get support from friends. In March 2015 an occupational therapist visited her home in Maryborough for the installation of ramps and rails as she was still reliant on a wheelchair.
  3. [72]
    Ms Magarey underwent joint fusion surgery of her right ankle in May 2015. She found after the surgery, the pain in her ankle continued to increase and she saw no improvement. Ms Magarey attending on Dr Dick some seven times up until 12 March 2016.  She stated she felt something “was seriously wrong” with her ankle but no one could tell her why her pain was not improving. Scans were taken. On 20 April 2016, she discussed a revision surgery of the right subtalar fusion with Dr Dick. She was advised that the pins would be removed and replaced with new, shorter pins. That surgery occurred on 9 August 2016. Her pain worsened and she was confined to a wheelchair. She was informed by Dr Dick in November 2016 that there was still non-fusion and that the pins would need to be removed.
  4. [73]
    Ms Magarey stated that after Dr Dick informed her there was non-fusion and the pins would have to be removed on 29 November 2016, she asked for a referral to another orthopaedic surgeon because she had lost faith in Dr Dick. After seeing Dr Noovao in December 2016, who advised her it would be necessary to undergo a hip graft to replace the bone in her right ankle and for the screws to be removed and replaced again, Ms Magarey “realised that my entire lifestyle had changed. After 2 failed surgeries, I could barely walk, I could not drive, and I needed a wheelchair to mobilise. I was in so much pain and I was losing hope that my injuries would ever get better.”[31]
  5. [74]
    Shortly after that time she considered whether she had any sort of claim against Dr Dick and decided to seek legal advice, stating that by that time “it had been 18 months since the first surgery and I was extremely debilitated…” She consulted Carswell & Co in early 2017 for advice. Ms Magarey understood that they were making the relevant investigations to move her claim forward.  She stated:

“When I decided to make enquiries about whether I could bring any sort of claim against Dr Dick, I didn’t have any view or opinion in my mind as to whether Dr Dick had actually done anything wrong. All I knew was that he was a surgeon, surgery is meant to make someone better, it hasn’t made me better and maybe it was his fault. I thought that maybe, there might have been an issue with the screws involved in my fusion, because Dr Noovao advised me that the screws needed to be replaced…”[32]

  1. [75]
    Ms Magarey stated that she was surprised when Carswell & Co requested her to pay money for an external report in May 2017. She was unemployed at the time and had little spare cash. She transferred the money, but on 4 July 2017 was advised her claim had no prospect of success and she was refunded the money. She was told that there was no evidence that the surgeries were performed negligently nor that the size and placement of screws were the source of her continual pain. She was told it would cost her $5000 if she wished to obtain an expert report to comment on the surgeries performed by Dr Dick and the placement and size of the screws.[33]
  2. [76]
    She stated she was “…dissuaded by the opinions of Carswell & Company in relation to my claim, however, I thought to seek a second opinion from another law firm.” She subsequently contacted a number of firms in August 2017 until she contacted CMC Lawyers, who said that they would be prepared to meet the costs of obtaining expert reports in her matter. She engaged CMC Lawyers in September 2017.  She stated that it was her understanding that CMC Lawyers would contact her if they required any information from her or needed her to do anything. She understood they would obtain all her medical records. There is no evidence as to what, if anything, Ms Magarey was told about any potential claim or any time limitations. 
  3. [77]
    Ms Magarey had undergone surgery in March 2017 which involved Dr Noovao performing revision right subtular fusion and right iliac bone graft to re-exchange the screws on the ankle previously operated upon by Dr Dick. Prior to that, a CT scan had been taken and it had been reported “non-union of the subtalar fusion with a loose traversing screw. A second screw did not traverse the fusion.”
  4. [78]
    In around August 2017 Ms Magarey stated she experienced a sudden increase in pain and swelling. An MRI conducted on 1 September 2017 indicated that the findings were highly suspicious for osteomyletis in the right ankle. In September and October 2017 Ms Magarey had several more surgeries, resulting in the screws being removed on 6 October 2017, as there was pus and infection around the screws in her ankle. Dr Sowden, an infectious disease specialist, was consulted. The infection that was ultimately diagnosed was a rare infection “Finegoldia Magna” which, according to Ms Magarey, was usually caused by foreign materials such as screws and nails used in orthopaedic surgeries.
  5. [79]
    In January 2018, Ms Magarey was advised by Dr Sowden that the infection was getting worse, despite the washout surgeries and antibiotics, and amputation may have to be considered.
  6. [80]
    In February 2018, Ms Magarey was advised by a senior orthopaedic specialist that her right leg could not be saved. Ms Magarey was advised that amputation was her only option. That surgery occurred in August 2018. She stated that during this period she struggled to find “the mental, physical and emotional energy to be completely involved in her claim.” Her right leg was her dominant leg, as her left leg had been compromised when she was a child. Ms Magarey stated that she needed to focus her attention on adjusting to a new way of life.
  7. [81]
    Ms Magarey states she was told by CMC Lawyers that they had to make numerous requests for medical records, and that they needed to make sure they received all her medical records before spending significant money to obtain any expert reports in relation to her claim.[34]
  8. [82]
    A further affidavit of Ms Magarey was filed by leave on the day that this application was heard, which expanded on her instructions to Carswell & Co, her belief that they were carrying out investigations in relation to her claim and that she could not afford the cost of obtaining an expert report when they raised it with her. She stated that in relation to CMC Lawyers, she engaged them to undertake inquiries and further investigations to ascertain whether there was any basis for making a claim and remained in contact with them as best she could, given her health issues. She states that “There were a lot of things going on with my health at that time that prevented me from attending to the requirements of the investigations to be undertaken for the purposes of determining whether there was a basis for a claim as responsively as I might have”. It is hard to glean what Ms Magarey means by that.
  9. [83]
    Ms Magarey also states that she was advised about the progress of the investigations by her solicitors, and she knew it was not a simple matter, but rather involved numerous pieces of information.  Once provided with the Form 2 PIPA Part 1 Notice of Claim she states that “As a result of the contents of that document, the references therein to the report of Dr Higgs and the particulars of negligence, I formed the view that there were some prospects for a claim in relation to treatment that I had received over a long period of time.” She also considered that her claim was supported by medical opinion and formed the view that she would advance her claim. Ms Magarey signed the Form 2 Part 1 Notice of Claim and forwarded it back to CMC Lawyers.

Material Fact

  1. [84]
    On the basis that the negligent act was relevantly the surgery carried out on 12 May 2015, (which Professor Higgs considered should not have been undertaken and further was undertaken negligently), a cause of action arose from that point in time and the limitation period would have expired on 12 May 2018.
  2. [85]
    The applicant, however, contends in the alternative that the loss and damage did not flow until a point in time much later than the surgery and arguably did not arise until Dr Noovao was consulted in or about 20 December 2016. The latest point when the cause of action could have arisen is 12 August 2018 when the applicant’s knee was amputated, however that is not seriously contended. There are some allegations that there was a failure to detect osteomyeltis in 2016, which resulted in treatment given in August 2016 being negligent, in which case for those allegations, time potentially expired in August 2019.
  3. [86]
    The applicant accepts that the better view is that a cause of action arose when the original surgery occurred in May 2015, given it is alleged that the surgical treatment was negligent and that set off a train of events which ultimately resulted in the applicant’s knee being amputated.
  4. [87]
    The material fact relied upon by the applicant in the present case is knowledge of the opinion of Professor Higgs that there was a nexus between the original treatment by Dr Dick when he undertook the joint fusion surgery of the applicant and the subsequent development of an infection and presentation in terms of a below the knee presentation.
  5. [88]
    In his report, Professor Higgs expressed a number of opinions that the surgery that occurred in May 2015 was not warranted by any clinical indication and was probably unnecessary; that one of the screws was not correctly positioned within the os calcis and that osteomyelitis was evident on 13 April 2016 which should have resulted in the applicant being referred to an infectious disease specialist. The applicant’s counsel emphasised the difficulties in establishing causation in the applicant’s case demonstrated by his opinion that:

“My review of the Documentary Evidence has caused me to form the conclusion that Magarey’s lower extremity joint dysfunction was associated with the suffering of the Ehlers Danlos syndrome, with pathology at the posterior tibialis tendon, and with early osteoarthritis of the ankle joint. I have formed the conclusion that fusion of the talo-calcaneal joint was probably unnecessary and also unlikely to effect any resolution of Magarey’s right ankle joint region pathology, including pathology at the right tibialis posterior tendon.”[35]

  1. [89]
    A material fact may be one which relates to the nature and the extent of the injury. The consequences of an injury, including economic consequences, have been treated as a potentially material fact of a decisive nature.[36]
  2. [90]
    As has been stated by the High Court in State of Queensland v Stephenson, knowledge of a material fact, or even means of knowledge of a material fact, is insufficient of itself to propel the appellant outside s 31(2)(a) of the LAA. For circumstances to run against the making of a successful extension application, the material fact must be of a decisive character.[37]
  3. [91]
    According to the applicant, any facts known prior to the expiration of the limitation period did not have the requisite degree of materiality and it was not until appropriate advice was taken in the form of an opinion from Professor Higgs, linking her presentation to the original treatment of the applicant’s right ankle by surgery, that they attained the requisite degree of materiality.

Of a Decisive Character

  1. [92]
    According to the applicant, it was not until the effect of the Professor Higgs’ report was made known to her on 30 September 2020 that she had an appreciation that she had a basis for a claim and accordingly, she gave instructions for CMC Lawyers to take steps to protect the claim and to advance it.[38] I accept that she did not have an appreciation that she had a claim until that time.
  2. [93]
    The applicant contends that the Court must have regard to the fact that the applicant was originally advised by Carswell & Co that her claim did not have prospects of success. That is obviously a relevant factor. The applicant further contends that while some features of the applicant’s presentation and its impact upon her life existed prior to the events relied upon as a material fact, such aspects should be regarded as presenting perhaps by reference to damage but in no way engaging considerations of whether there was a viable cause of action. The applicant contends that in judging the significance of the material fact, one would have regard to the conduct of the individual and have regard to the financial means of the applicant, her knowledge and experience, the complexities associated with the relevant consideration related to causation, the advice she had received, and the extensive investigations required for an opinion to be properly formulated.
  3. [94]
    In oral submissions, the applicant’s Counsel further submitted that it was relevant to the applicant’s consideration that she had also made a complaint to the Australian Health Practitioner Regulation Agency (AHPRA). AHPRA assessed a notification submitted by the applicant regarding the surgeries performed by Dr Dick. AHPRA concluded that Dr Dick’s performance was appropriate, and no further action would be taken.[39] AHPRA informed the respondent of this finding on 9 October 2017. This notification is not mentioned in the affidavit of Ms Magarey or Ms Wills. I am therefore unable to infer that the response of AHPRA was of any great significance. I accept that the failure of AHPRA to act on the applicant’s complaint would have been an additional matter which would have created uncertainty in the applicant’s mind as to what caused her injury.
  4. [95]
    The respondent contends that by 23 August 2018, the applicant held the belief that she had suffered an amputation of the right leg as a result of deficient medical treatment and had instructed two sets of lawyers to each provide a relevant notice of claim against the respondent and had made a complaint to AHPRA, such that she had the critical mass of information within her means of knowledge which justified bringing the action.  It further contends that there was no doubt in her mind she had a valid claim, and she was pursuing it as demonstrated by her actions in briefing solicitors. She was not, however, cross-examined and I am not prepared to find that she did believe she had a valid claim when she deposed to the fact that she had not formed such a view. I accept that she at least believed she had a sufficient basis to instruct Carswell & Co and CMC Lawyers to issue a s 9A notice under PIPA, giving an initial notice of claim. However, there is a difference in believing that there is a sufficient basis for engaging solicitors to investigate whether you have a claim as opposed to believing you in fact have a claim.
  5. [96]
    As set out above, the decisive character of a material fact may develop over time, such that even where individual material facts relating to the right of action are known, none of the material facts may be of a decisive character until all material facts combine such that a reasonable person knowing the facts known by the applicant would regard the facts as justifying and mandating that an action be brought in the person’s own interests.[40] It is not, however, sufficient to show that there is a new fact which bears upon the nature and extent of the injury and would cause a new assessment to be made of it. Rather, as stated by Justice Macrossan, as his Honour then was, in Moriarty v Sunbeam Corporation Ltd:[41]

“He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it.”

  1. [97]
    Macrossan J also considered the difficulty in considering a fact which under s 30(b) of the LAA can encompass a single fact which could be material and decisive within s 31(2) of the LAA, stating that:[42]

“The reference to the facts or, as it may be, to the single fact which s. 31(2)(a) envisages as only belatedly coming to an applicant’s means of knowledge must then be understood as being to an outstanding fact or facts vital to complete any necessary combination of facts which establish the existence or worthwhile nature of the cause of action as referred to in s. 30(b). This interpretation may be taken as concluded by a number of prior decisions upon the legislation including Do Carmo.”

  1. [98]
    Connolly J in Sugden v Crawford,[43] also relevantly observed that:

“Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action.”[44]

  1. [99]
    The fact that an additional fact may augment what is already a critical mass of information within the plaintiff’s means of knowledge, which justified the bringing of an action, will be insufficient to discharge the onus upon the applicant.[45]
  2. [100]
    In the present case, the applicant knew that the treatment that the applicant had received in 2015 had not resolved the debilitating effects she was suffering with her right ankle and in some periods resulted in her suffering worse pain and an infection and having to endure multiple surgeries after the initial surgery by Dr Dick, that she had sufficient knowledge of material facts that a reasonable person knowing those facts and having taken appropriate advice on those facts would regard those facts as showing the matters in s 30(1)(b)(i) and (ii) of the LAA. In that context, the amputation of the applicant’s lower right leg, while catastrophic, as submitted by the respondent, would arguably only serve to enlarge the damages and show that the action was “more worthwhile” rather than being a material fact which could be characterised as decisive.[46]
  3. [101]
    However, the applicant had been advised by solicitors, that a claim by her in relation to the surgeries by Dr Dick had no prospect of success (albeit that advice appears without the benefit of a medical report).  That view may have been given some additional weight by AHPRA apparently rejecting the complaint about the treatment given by Dr Dick.
  4. [102]
    Ms Magarey is not a lawyer, nor did she have lawyers in her family. Rather surprisingly she did not give any details as to her education or whether she had any qualifications.[47] Professor Higgs in his report stated that Ms Margaery had worked as a sports therapist and had a Bachelor of Nursing degree.[48] Whether that was, in fact, the case was not established. Ms Magarey did not provide any information as to her work history and when she ceased work. According to her affidavit, she was receiving unemployment benefits in May 2017. I accept that Ms Magarey is not someone who was familiar with legal processes. There is no evidence to suggest, however, that she lacked an education or sufficient intelligence that hampered her understanding. Nor is there any evidence about what Ms Magarey was told as to what was required to establish a claim when solicitors were engaged or what she was advised, if anything, on a progressive basis. There is no evidence that she had been advised the original surgery had been negligently performed by any of the doctors she consulted, nor that she had made such inquiries.
  5. [103]
    The applicant did have several health conditions and also had suffered what appears to be a dramatic deterioration of what she thought to be a minor injury before seeing Dr Dick. The surgery had not advanced that position and ultimately, she lost the lower half of her right leg after a number of years of medical treatment and at least knew what had happened in terms of the placement of screws in the ankle and their subsequent removal followed by a series of operations and procedures which also proved to be unsuccessful.
  6. [104]
    The availability of evidence to support a cause of action based on negligence, particularly in terms of causation between the alleged negligent act and the consequences of that act, can, in my view, be a material fact of a decisive character. A typical source of such evidence would be a medical specialist such as Professor Higgs. While based on historical medical records, the majority of which were from 2016 and 2017, it is his opinion which ultimately identified that the original surgery was unwarranted, that a screw had been negligently placed and that, with the assistance of Dr Baker’s opinion, considers there were signs of osteomyelitis prior to August 2016 which should have led to different treatment and reduced the chance of amputation.
  7. [105]
    Without such evidence, even knowing the various physical symptoms suffered and the trajectory after receiving the original surgery and having the historical medical records a reasonable person knowing what the applicant knew by the critical date and with appropriate advice on those facts without a medical opinion identifying the cause of the presentation would not have regarded them as showing that she had reasonable prospects of success in obtaining an award of damages sufficient to justify the bringing of an action such that she ought to sue. A medical report providing an opinion as to whether or not there has been negligence, or whether the negligent act is causally linked to loss or damage suffered by the person in question, could have altered that and therefore constituted a material fact of a decisive nature.[49] 
  8. [106]
    Unlike the case of Castillion v P & O Ports Limited (No 2),[50] where it was found there was a critical mass of information to support the claim and additional information of termination discovered in the context of the second application was just an additional fact which augmented that knowledge such that it was not a material fact of a decisive nature, the applicant did not have medical opinions to support a claim based in negligence. Further while she briefed solicitors and a s 9A initial notice had been issued, she had not indicated she was going to commence a claim.[51]
  9. [107]
    At least when Ms Margaery engaged CMC Lawyers, those circumstances may have led a reasonable person in Ms Magarey’s position to believe it was not in her interests to bring an action.
  10. [108]
    I find that Professor Higgs’ report, could be regarded as a material fact of a decisive character.

Means of knowledge

  1. [109]
    However, in order for the Court to grant relief, it must be satisfied that the material fact was not within the means of knowledge of the applicant until after the relevant date.[52] It is necessary to focus attention on the relevant fact and consider whether the claimant should reasonably have taken steps at an earlier time to find out that fact. The test is objective, having regard to the background and situation of the applicant.
  2. [110]
    In NF v State of Queensland,[53] Keane JA stated that in considering the inter-relationship between s 30(1)(b) and s 30(1)(c) LAA that:

“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)…”[54]

  1. [111]
    In this case, the material fact is the report of Professor Higgs.
  2. [112]
    There is no real issue that, in the present case, there was a requirement to take appropriate advice in the circumstances, as the applicant has recognised herself. It would, in any event, have been reasonable to expect her to do so after seeing Dr Noovao, when she knew the physical state of her ankle, that the surgery carried out by Dr Dick had not been successful and wondered whether that there may be some fault on Dr Dick’s behalf in that regard.
  3. [113]
    I consider that, given Professor Higgs report was based on historical medical records and a considerable number of records were required by Professor Higgs to that end  as well as a report from Dr Baker which was acquired relatively quickly, had the solicitors acted expeditiously in obtaining the medical records after originally engaged or at least when they discovered the respondent had provided records to Carswell & Co, such reports could have been obtained by August 2019, in light of the amputation having occurred in August 2018, the need for which the applicant was advised of in January 2018. While there are periods of explicable delay in terms of having to gather records, brief counsel to assist and conference with Professor Higgs after meeting his costs, there are periods of inactivity and delay which cannot be so characterised. Ms Wills’ explanation of delay did not address the initial delays after issuing the s 9A notice, the failure to follow up Carswell & Co in 2017 for the file or the failure to follow up records initially requested in 2017 in a timely way, nor does it satisfy me that CMC Lawyers acted with any expedition after the amputation of the applicant’s leg, particularly having regard to the fact that the s 9A notice had attributed an adverse outcome to the surgery in May 2015.
  4. [114]
    The applicant already had a critical mass of information to obtain the necessary medical report which would have justified the issuing of proceedings on the basis that they were worthwhile, given the injury had caused the applicant to be in severe pain after the 2015 and 2016 surgery, to become largely immobile, unable to work and having to endure multiple surgeries in 2017 prior to the amputation.  The link to the amputation would have enlarged the prospective damages rather than being the pivotal fact to inform the applicant that the claim was worthwhile. 
  5. [115]
    In any event, the need for the amputation had been recommended in February 2018 and taken place in August 2018. It was only after that date that CMC Lawyers followed up an apparent lack of response to the s 9A notice they had served and sought the file from Carswell & Co.  As the respondent submitted, by 9 August 2019,  which was three years after the second surgery of Dr Dick and by which time it is said that the osteomyelitis was evident and should have been detected and treated thereby reducing the chance of amputation, no further information was required.
  6. [116]
    No specificity was provided as to how Ms Magarey’s emotional and mental state relevantly hampered her ability to provide instructions or otherwise attend to the requirements of the procedural aspects of the claim, as was submitted by the applicant’s counsel.
  7. [117]
    However, the means of knowledge and the reasonable steps to be taken is to be considered is that of the applicant not her solicitors.
  8. [118]
    Ms Magarey engaged Carswell & Co to consider whether she had a claim, shortly after being advised by Dr Noovao she would have to have further surgery and the pins in her ankle replaced.
  9. [119]
    She paid $500 to Carswell & Co when requested to do so in May 2017.
  10. [120]
    After Ms Magarey obtained legal advice from Carswell & Co in July 2017 that her claim had no prospects of success and following the fact that she was not able to pay $5000 for an expert report, she sought to engage other lawyers in August 2017, as she was dissatisfied with how her claim had been handled. She engaged CMC lawyers formally on 6 September 2017 (although they had already taken steps on her behalf in late August) on the basis CMC Lawyers would obtain and meet the costs of an expert report, which she could not do. In those circumstances, it was again a reasonable step for the applicant to take. That was, however, nine months prior to the expiry of the first limitation period in May 2018.
  11. [121]
    According to Ms Magarey, she had given CMC Lawyers instructions to carry out investigations to see whether she had a claim.
  12. [122]
    In the present case, in the circumstances set out above, it is evident that Ms Magarey was aware that a medical opinion was needed to establish whether she had a claim. She was not financially able to fund such a report and she had engaged CMC Lawyers because they were prepared to meet the costs of obtaining a report.
  13. [123]
    She had also again given instructions to CMC Lawyers, as she had done with Carswell & Co, identifying that the treatment provided by Dr Dick had resulted in her suffering a personal injury for the purposes of issuing a notice under s 9A(2) of the PIPA.
  14. [124]
    By letter dated 6 September 2017, CMC Lawyers had written to Dr Dick, care of the Sunshine Coast Hospital, providing an initial s 9A notice under PIPA and stating that in relation to the surgery in May 2015 “it is alleged that this surgery was performed negligently in respect of the length and location of the screws which were placed” and that “[a]s a result of the aforementioned negligence the Claimant continues to experience pain and discomfort in her right ankle.”
  15. [125]
    There is no suggestion that Ms Magarey was informed about the content of Professor Higgs’ report until September 2020. To the extent that the solicitors had preliminary conferences with him, there is no evidence that he expressed an opinion to them. In any event, that knowledge would not be imputed to Ms Magarey.  The issue, however, is the time that it then took to obtain a further report.
  16. [126]
    While engaging solicitors to provide advice as to a potential claim is generally a reasonable step, that does not necessarily satisfy the taking of reasonable steps over time if the applicant does not do their best to ensure that the solicitors did not languish in the prosecution of the action.
  17. [127]
    In Wolverson v Todman,[55] Gotterson JA (with whom Holmes JA, as her Honour then was, agreed) stated:

“Ms Wolverson engaged a solicitor to investigate the possibility of making a claim for damages in May 2010.  The solicitor continued to act for her during all material times. As was appropriate for him to do, his Honour analysed the events that ensued, mindful of two principles which had been articulated by McPherson J in Neilson v Peters Ship Repair Pty Ltd. One is that, as a matter of statutory construction, where a solicitor is engaged, the person whose knowledge is relevant for s 31(2) purposes is the client, not the solicitor.  The other is one that offers practical guidance. It is that “[p]lacing the matter in the hands of apparently competent solicitors with adequate instructions including information relevant to the cause of action would ordinarily amount to taking all reasonable steps to ascertain the relevant facts, provided that the plaintiff did his best to ensure that the solicitors did not languish in the prosecution of the action”.”[56] (footnotes omitted)

  1. [128]
    Holmes JA stated that it is the means of knowledge of the applicant which is relevant, and the question is whether she had taken all reasonable steps to find out the material fact prior to the critical date.  Holmes JA further stated:

“But it must be a question of fact in any given case whether to leave everything to a solicitor amounts to taking reasonable steps. The present case was not one like that of the worker in Do Carmo v Ford Excavations Pty Ltd, where the solicitors, in response to his enquiries about his rights, gave him no indication of what was necessary to his case: that an alternative system of work was available. Here, in contrast, the appellant was informed of what was needed.”[57]

  1. [129]
    In Wolverson v Todman,[58] the Court of Appeal upheld the decision of the primary judge that there had been a failure to take reasonable steps by the applicant in not obtaining a radiologist’s report pending the outcome of another complaints process when the plaintiff knew that the report was required for a proceeding against the radiologist, and funding for the opinion had been secured. The applicant had some familiarity with the process given her solicitors had obtained consent orders under s 43 of PIPA some three years before.
  2. [130]
    The respondent contends that the material fact relied upon was available within the limitation period, had reasonable steps been taken to ascertain that fact by the applicant’s solicitors and her personally, or at least that was the case by August 2018, given she had undergone several surgical procedures and had suffered over three years of pain. In particular, the respondent contends that the failing to obtain a report, which would have satisfied and complied with the applicant’s obligations under s 9A(9)(d), which would have resulted in the material fact being learnt within the limitation period or at least prior to the critical date, the applicant and her solicitors failed to take reasonable steps. Section 9A(9)(d) required a claimant within twelve months of a respondent complying with its obligations under subsection 9A(8):

“(d) must as part of giving a complying part 1 notice of claim, give a written report from a medical specialist, competent to assess the medical incident alleged to have given rise to the personal injury, stating, in the medical specialist’s opinion—

(i) that there was a failure to meet an appropriate standard of care in providing medical services; and

(ii) the reasons justifying the opinion; and

(iii) that as a result of the failure, the claimant suffered personal injury;”.

  1. [131]
    The respondent contends that is particularly so, given that whether Dr Dick had met the relevant standard of care, and whether an action was worthwhile, would have been evident by a review of the historical medical records and the pain and medical procedures the applicant had already endured. That would, according to the respondent, have been evident prior to the amputation of the applicant’s leg which, while catastrophic, only added to the potential damages.
  2. [132]
    The evidence supports the fact that the solicitors did languish in the prosecution of the action and the conduct of the matter was affected by periods of significant delays and periods of inactivity. I have largely addressed this above.
  3. [133]
    The fact that the Ms Magarey may have a possible claim against her solicitors as a result of delays is not a matter this Court needs to or should determine. Whether such a claim exists or not is irrelevant in determining the present application. To the extent it was submitted otherwise on behalf of the respondent, I do not accept it.
  4. [134]
    While CMC Lawyers did not take reasonable steps to ascertain the material fact, namely an expert opinion as to liability, the question is whether that failure extends to the applicant.  In that regard, there is no real evidence, other than general assertions of maintaining contact, that Ms Magarey took any steps to ensure that the prosecution of the claim by her solicitors did not languish.
  5. [135]
    She had given her solicitors authority to obtain her medical records and to issue an initial notice under PIPA. She understood they were carrying out the relevant investigations to obtain the records and to obtain an expert report. She knew they were bearing the cost of that process and she was not in a position to bear that cost herself. At the same time, she was, after she had engaged CMC Lawyers, undergoing a number of surgical operations and, in 2018, had to deal with the fact that her leg required amputation and the operation itself. While that clearly would have been a significant source of trauma, there is nothing to suggest she lacked capacity to be able to engage with her solicitors about her claim.
  6. [136]
    There is no evidence, however, that anything was requested of Ms Magarey by CMC Lawyers which she had failed to attend to or that she had been aware of any statutory time frames under PIPA or the LAA which had to be met if she wished to make a claim.  While it seems extraordinary that she would not have been so advised, I have no evidence to suggest that was the case. While it appears that she was told by her solicitors that they were having to obtain a lot of records, there is nothing to suggest that she was aware of what was required or the fact that the records had not been obtained with any expedition, or that a report could have been prepared without awaiting the outcome of the amputation in relation to whether Dr Dick had breached his duty of care and the injuries that had resulted.  While I have not seen the records, in the context of the fact that she had had so many medical procedures, the solicitors indicating it was a significant exercise would in all likelihood not have been surprising. However, the applicant had instructed a legal process should be put in train by the issuing of the s 9A notices by both sets of solicitors and had sworn a statutory declaration when she had to explain the delay in issuing the initial notice by Carswell & Co. In those circumstances, her failure to take any action to follow up CMC Lawyers and determine the progress of her matter and the source of delays was unreasonable inaction event taking account the trauma suffered.
  7. [137]
    Unlike the case of Ervin v Brisbane Health Authority & Anor,[59] the delays in the present case were considerably longer with an expert report only being obtained some three years after CMC Lawyers had been engaged. The delays were such that they reasonably required the applicant to press them to obtain the report they said they would obtain or to have sought other legal advice if they then did not take action in a timely way. There were months of inaction. However, other than the length of time, there was nothing to suggest that there was anything amiss. The fact that Ms Magarey was dependent on CMC Lawyers to the extent that they were meeting the costs of obtaining medical records and the costs of an expert and the fact that she was not familiar with the legal process, could explain her failure to question CMC Lawyers as to the length of time it was taking to obtain the relevant report. 
  8. [138]
    Ms Magarey knew by December 2016, at the latest, that the surgical procedures performed by Dr Dick had not been successful, causing her to request a referral to another doctor and stating that her entire life had changed. Ms Magarey took the reasonable step of engaging lawyers to provide advice. Ms Magarey had, in instructing her solicitors to issue Part 9A notices, at least formed the view that as a result of the treatment in May 2015 and potentially August 2016, she had an adverse outcome for which she wished to pursue a claim. That remained the case when she instructed CMC Lawyers, notwithstanding the advice she had received from Carswell & Co which caused her to seek new lawyers. In that regard, the present case does not bear any resemblance to the situation in Suncorp Metway Insurance Limited v Norris [2012] QCA 101.  The claimant in that case had been told information by police which she accepted, which is not the case here. She knew the possibility of the claim stemmed from the original surgery. Ms Magarey did not rely on the advice of Carswell & Co, given she briefed CMC Lawyers. She felt the need to find out the quality of the treatment she had received and briefed CMC Lawyers to establish whether there was a basis for a claim in relation to the treatment she had received, knowing they would cover the costs of the initial report. It was reasonable for her to form the view that she needed a favourable expert report in order to determine whether she had a claim that was worthwhile pursing. While the advice given by Carswell & Co could not have been regarded as the result of a thorough investigation, they had advised her that her claim had no prospects of success. 
  9. [139]
    Ms Magarey could not fund an expert report herself and was reliant on CMC Lawyers, from which one could infer she was reasonably constrained as to what she could require of the solicitors to progress the matters and may have had some degree of hesitancy in pressing for the report, where they had agreed to take on the costs and investigate whether she had a claim. Even accepting she may not have been advised of time limitations in relation to bringing a personal injuries action, the period over which it took to obtain the report required her to follow up solicitors. She had considerable time to advise solicitors after being advised of the need for her leg to be amputated and the subsequent amputation to take steps to find out the progress of the investigation when she was suffering such severe physical consequences which she knew was attributable to her right ankle, even if she was unaware of potential negligence in that regard. However, there is a paucity of evidence suggesting any regular follow up to ensure the solicitors were taking the relevant steps on her behalf to ascertain the material fact. While some of that can be explained by what the applicant had to endure in relation to treatment and understandably being distracted by it, it cannot explain a significant part of the delay. Nor does the evidence rise to the level that she was suffering such depression and anxiety that she could not provide instructions or take any action to protect her interests. In my view, had reasonable steps been taken, the material fact was within her means of knowledge well prior to the critical date.
  10. [140]
    In all of the circumstances, given the lack of any real evidence to show she had followed up with CMC Lawyers as to the progress of the matter in circumstances where it was taking an extraordinary period of time to obtain a report, the applicant failed to make an enquiry in an appropriate fashion, and I find that the applicant has failed to discharge the onus to persuade me that the material fact was not within her means of knowledge. In the circumstances, it is a very unfortunate result, particularly given the failures I have identified in relation to the actions of the applicant’s solicitors.

Conclusion

  1. [141]
    The application is dismissed.
  2. [142]
    The parties are to provide written submissions as to costs within seven days of the date of the delivery of these reasons.

Footnotes

[1]Adapting the five factors conveniently summarised by Crow J in Wilson v Mackay Hospital and Health Service [2021] QSC 178 but noting that “material fact of a decisive character relating to a right of action is a compendious conception”.

[2]State of Queensland v Stephenson (2006) 226 CLR 197 at [30].

[3](1984) 154 CLR 234 at 256.

[4][2000] 2 Qd R 476 at [26]; see also Randel v Brisbane City Council [1984] 2 Qd R 276 at 277

[5](2006) 226 CLR 197 at [25]

[6]The State of Queensland v Stephenson (2006) 226 CLR 197 at [25].

[7]The State of Queensland v Stephenson (2006) 226 CLR 197 at [21].

[8](2006) 226 CLR 197.

[9]State of Queensland v Stephenson (2006) 226 CLR 197 at [29]-[30] per Gummow, Hayne and Crennan JJ.             

[10][2009] QCA 352, with whom Fraser JA agreed.

[11][2009] QCA 352 at [73].

[12][2009] QCA 352 at [73].

[13]NF v State of Queensland [2005] QCA 110.

[14]Carlowe v Frigmobile Pty Ltd [1999] QCA 527 at [39] per Thomas JA and Atkinson J.

[15][1998] QCA 298.

[16][2009] QCA 168 at [44].

[17][1993] QCA 210 at [18].

[18]S 31(2)(b) of the LAA.

[19]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[20]The applicant attended Dr Wall a total of nine times between 29 April 2014 and 8 October 2014.

[21]The applicant attended Dr Dick for seven reviews between 26 May 2015 and 12 March 2016.

[22]Having contacted other lawyers but being concerned to have a lawyer who would take on her case and meet the costs

[23]CFI 3 at [47].

[24]CFI 4 at [24].

[25]CFI 4 at [102].

[26]Affidavit of Stewart TYS-27 at page 86.

[27]CFI 4 at [50].

[28]T1-12/17-24 and T1-15/22-26.

[29]T1-17/1-10.

[30]T1-17/36-40.

[31]CFI 3 at [27].

[32]CFI 3 at [29]. Ms Magarey stated, however, no one had advised her that was the case.

[33]CFI 3 at [40].

[34]CFI 3 at [60].

[35]CFI 6, TSW-58 at 16.1.4.

[36]Watters v Queensland Rail [2001] 1 Qd R 448 at 452 and 456-457.

[37]State of Queensland v Stephenson (2006) 226 CLR 197 at [29].

[38]CFI 3 at [8].

[39]CFI 7 at [16].

[40]State of Queensland v Stephenson (2006) 226 CLR 197 at [29].

[41][1988] 2 Qd R 325 at 333.

[42]   [1988] 2 Qd R 325 at 333.

[43][1989] 1 Qd R 683.

[44]Sugden v Crawford [1989] 1 Qd R 683 at 685.

[45]Justice Keane (as his Honour then was) in Castillon v P & O Ports Limited (No. 2) [2008] 2 Qd R 219 at [34]-[35].

[46]Castillon v P & O Ports Limited (No. 2) [2008] 2 Qd R 219 at [37] and [41].

[47]Given her further affidavit emphasises that she did not have any real relevant learning or qualifications, that would enable me to form a view contrary to what she had been advised by Carswell & Co.

[48]CFI 6, TSW-58 at page 12.

[49]   Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [48]-[50] per McMurdo J (as he then was); Stephens v Paradise Ultrasound Specialists Pty Ltd (2019) 1 Qd R 254 at [33] (although it was conceded in that case).

[50][2008] 2 Qd R 219

[51]As the plaintiff and plaintiff’s solicitors had indicated to Workcover in that case

[52]30 September 2020: Moriaty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 334 per Macrossan CJ.

[53][2005] QCA 110.

[54][2005] QCA 110 at [29].

[55][2016] 2 Qd R 106.

[56][2016] 2 Qd R 106 at [63].

[57]Wolverson v Todman [2016] 2 Qd R 106 at [2].

[58][2016] 2 Qd R 106.

[59][1993] QCA 548.

Close

Editorial Notes

  • Published Case Name:

    Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)

  • Shortened Case Name:

    Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)

  • MNC:

    [2021] QSC 240

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    24 Sep 2021

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QSC 24024 Sep 2021-
Notice of Appeal FiledFile Number: CA12465/2122 Oct 2021-
Appeal Determined (QCA)[2022] QCA 189 (2022) 11 QR 88230 Sep 2022-
Application for Special Leave (HCA)File Number: B55/202216 Nov 2022-
Special Leave Refused (HCA)[2023] HCASL 1709 Mar 2023Special leave refused: Gordon and Jagot JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Carlowe v Frigmobile Pty Ltd [1999] QCA 527
2 citations
Jump To
Cite 1 - [1999] QCA 527
Cite 2 - [1999] QCA 527
Carmo v Ford Excavations Pty Ltd (1984) 154 C.L.R 234
2 citations
Jump To
Cite 1 - (1984) 154 C.L.R 234
Cite 2 - (1984) 154 C.L.R 234
Castillon v P&O Ports Ltd[2008] 2 Qd R 219; [2007] QCA 364
4 citations
Jump To
Cite 1 - [2008] 2 Qd R 219
Cite 2 - [2008] 2 Qd R 219
Cite 3 - [2008] 2 Qd R 219
Cite 4 - [2008] 2 Qd R 219
Ervin v Brisbane North Regional Health Authority [1993] QCA 548
2 citations
Jump To
Cite 1 - [1993] QCA 548
Cite 2 - [1993] QCA 548
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
4 citations
Jump To
Cite 1 - [2009] QCA 352
Cite 2 - [2009] QCA 352
Cite 3 - [2009] QCA 352
Cite 4 - [2009] QCA 352
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168
2 citations
Jump To
Cite 1 - [2009] QCA 168
Cite 2 - [2009] QCA 168
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
4 citations
Jump To
Cite 1 - [1988] 2 Qd R 325
Cite 2 - [1988] 2 Qd R 325
Cite 3 - [1988] 2 Qd R 325
Cite 4 - [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
4 citations
Jump To
Cite 1 - [2005] QCA 110
Cite 2 - [2005] QCA 110
Cite 3 - [2005] QCA 110
Cite 4 - [2005] QCA 110
Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112
2 citations
Jump To
Cite 1 - [2006] QCA 112
Cite 2 - [2006] QCA 112
Pizer v Ansett Australia Ltd [1998] QCA 298
2 citations
Jump To
Cite 1 - [1998] QCA 298
Cite 2 - [1998] QCA 298
Randel v Brisbane City Council [1984] 2 Qd R 276
1 citation
Jump To
Cite 1 - [1984] 2 Qd R 276
State of Queensland v Stephenson (2006) 226 CLR 197
9 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
Cite 5 - (2006) 226 CLR 197
Cite 6 - (2006) 226 CLR 197
Cite 7 - (2006) 226 CLR 197
Cite 8 - (2006) 226 CLR 197
Cite 9 - (2006) 226 CLR 197
Stephens v Paradise Ultrasound Specialists Pty Ltd (2019) 1 Qd R 254
2 citations
Jump To
Cite 1 - (2019) 1 Qd R 254
Cite 2 - (2019) 1 Qd R 254
Sugden v Crawford [1989] 1 Qd R 683
3 citations
Jump To
Cite 1 - [1989] 1 Qd R 683
Cite 2 - [1989] 1 Qd R 683
Cite 3 - [1989] 1 Qd R 683
Suncorp Metway Insurance Limited v Norris [2012] QCA 101
2 citations
Jump To
Cite 1 - [2012] QCA 101
Cite 2 - [2012] QCA 101
University of Queensland v Dick[2000] 2 Qd R 476; [1999] QCA 474
2 citations
Jump To
Cite 1 - [2000] 2 Qd R 476
Cite 2 - [2000] 2 Qd R 476
Watters v Queensland Rail[2001] 1 Qd R 448; [2000] QCA 51
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 448
Cite 2 - [2001] 1 Qd R 448
Wilson v Mackay Hospital and Health Service [2021] QSC 178
2 citations
Jump To
Cite 1 - [2021] QSC 178
Cite 2 - [2021] QSC 178
Wolverson v Todman[2016] 2 Qd R 106; [2015] QCA 74
5 citations
Jump To
Cite 1 - [2016] 2 Qd R 106
Cite 2 - [2016] 2 Qd R 106
Cite 3 - [2016] 2 Qd R 106
Cite 4 - [2016] 2 Qd R 106
Cite 5 - [2016] 2 Qd R 106

Cases Citing

Case NameFull CitationFrequency
Cottee v Eastern Australia Airlines Pty Ltd [2022] QDC 1121 citation
Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)(2022) 11 QR 882; [2022] QCA 1894 citations
Rodgers v Chinsee [2024] QDC 552 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.