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Jones v Central Queensland Hospital and Health Service[2024] QSC 165

Jones v Central Queensland Hospital and Health Service[2024] QSC 165

SUPREME COURT OF QUEENSLAND

CITATION:

Jones v Central Queensland Hospital and Health Service [2024] QSC 165

PARTIES:

ALISON JONES

(plaintiff)

v

CENTRAL QUEENSLAND HOSPITAL AND HEALTH SERVICE

(first defendant)

AND

METRO NORTH HOSPITAL AND HEALTH SERVICE

(second defendant)

AND

MICHAEL FAY

(third defendant)

FILE NO:

2040 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2023

JUDGE:

Sullivan J

ORDER:

  1. 1.
    Pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (Qld), the State of Queensland be substituted in as the sole defendant in the proceeding in place of the Central Queensland Hospital and Health Service, being the first defendant, Metro North Hospital and Health Service, being the second defendant, and Michael Fay, being the third defendant.
  1. 2.
    Pursuant to s 31 of the Limitation of Actions Act 1974 (Qld), time is extended to 26 February 2021 for the plaintiff to start a proceeding in court against the State of Queensland for personal injuries she suffered as a consequence of the medical treatment, management and advice she received at, and alternatively, from the Rockhampton Base Hospital and the Royal Brisbane and Women’s Hospital from about June 2011 to about March 2012.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – where the plaintiff alleges personal injury sustained as a result of medical negligence – where the plaintiff sought an extension of time for the limitation period for damages for personal injury – whether the plaintiff established that a material fact of a decisive character was not within her means of knowledge – whether an extension ought to be granted 

Limitation of Actions Act 1974 (Qld), s 11(1), s 30, s 31,  s 32

Personal Injuries Proceedings Act 2002 (Qld), s 9

Uniform Civil Procedure Rules 1999 (Qld), r 69

AB v State of Queensland (2022) 11 QR 51

Berg v Kruger Enterprises (Division of Besser Qld Limited)

Ltd [1990] 2 Qd R 301

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

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

Castlemaine Perkins Limited v McPhee [1979] Qd R 469

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

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

George v Rockett (1990) 170 CLR 104

Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327

Healy v Femdale Pty Ltd [1993] QCA 210

Magarey v Sunshine Coast Hospital and Health Service

(Nambour Hospital) [2022] QCA 189

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

NF v State of Queensland [2005] QCA 110

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

Randel v Brisbane City Council [1984] 2 Qd R 276

COUNSEL:

DJ Schneidewin for the plaintiff

BF Charrington KC with AC Luchich for the defendants

SOLICITORS:

IM Lawyers for the plaintiff

Corrs Chambers Westgarth for the defendants and the State of Queensland

  1. Introduction
  1. [1]
    This is an application brought by the plaintiff primarily seeking an extension of time for the limitation period applicable to her claim for damages for personal injuries.  The personal injuries she alleges were said to be sustained as a result of medical negligence occurring in the period from June 2011 to March 2012.  This proceeding was commenced on 24 February 2021.
  1. [2]
    The extension of time sought in this case is one which is provided for in s 31 of the Limitation of Actions Act 1974 (Qld) (“LAA”).  The elements necessary for that statutory power to be engaged will be discussed more fully at a later stage in these reasons.  It suffices, at this stage, to identify that the plaintiff will bear the onus of satisfying the court that a material fact of a decisive character was not within her means of knowledge until a date within the 12 months immediately prior to the commencement of this proceeding.  If the plaintiff satisfies the court of that particular element, and if there is otherwise evidence to establish a right of action on her part, a discretion will arise for the court to extend the limitation period to one year commencing on the date that the plaintiff is found to have first had the means of knowledge of the material fact of a decisive character.
  1. [3]
    The relevant injury in this proceeding centres around the plaintiff’s sacrum.  The plaintiff had received radiation treatment for a tumour, and it is said that as a consequence the bone in the sacrum has effectively died.  This has then led over the years to subsequent multiple fractures and assorted complications.  The claim sought to be brought is one which alleges negligence in the form of a failure to warn and the negligent delivery of services.
  1. [4]
    It is worth identifying at this early stage that it is the plaintiff’s case that she did not have the means of knowledge of certain material facts of a decisive character until the receipt of an expert report from a Dr Pendlebury.  That report was received by the plaintiff on 26 February 2020.  The facts of a decisive character contained within that report, which the plaintiff said she did not have the means of knowledge of prior to its receipt, can broadly be identified as:
  1. (a)
    a dose of 56 Gy of radiation therapy delivered in 28 fractions was the international and Australian standard for the treatment of the plaintiff’s condition at the time she was treated; 
  1. (b)
    this standard was supported by international literature in the oncology field which existed at the time of her treatment;
  1. (c)
    the dose of the radiation therapy given to the plaintiff was higher than that which the literature recommended;
  1. (d)
    the risk of an insufficiency fracture and bone necrosis at the dose level delivered to the plaintiff was substantially higher (at 20 - 30 per cent), compared with the risk of 1 - 2 per cent expected with a dose of radiation at 56 Gy;
  1. (e)
    an insufficiency fracture due to necrosis of the bone of the sacrum (a weightbearing bone) is not unexpected with doses of radiation in excess of 59 Gy; and
  1. (f)
    on a more likely than not basis, the complication of bone necrosis would have been avoided with 56 Gy of radiation therapy, as opposed to the 60 Gy in  30 daily fractions which the plaintiff had received from Dr Michael Fay.
  1. [5]
    In determining this application, it will be necessary to examine the pleading, the statutory framework for an extension of time, the legal principles which have developed around the statutory framework, the chronological facts relevant to a consideration of whether the discretion is engaged at all, and, if the discretion is engaged, whether it is appropriate to exercise the discretion in the plaintiff’s favour.
  1. [6]
    The application also sought the substitution of the State of Queensland for the first and second defendants.  The legal representatives of the three named defendants submitted that the State of Queensland should be substituted for all three of the defendants.  The plaintiff has now agreed as at 5 August 2024 that this is appropriate.  
  1. [7]
    Accordingly, I will make an order for the substitution of the State of Queensland for all of the current defendants.  For the purposes of clarity, it should be noted that this application was argued on the basis that the three defendants were still on the record.  The pleading reflected that this was still the case.  These reasons will contain references to the three original defendants in that capacity, but the final relief will ultimately refer to the substituted defendant.
  1. The pleaded case
  1. [8]
    An analysis of the pleaded case provides a more detailed understanding of the framework of the alleged negligence.  It may broadly be summarised as follows.
  1. [9]
    In or about June 2011:
  1. (a)
    the plaintiff attended Rockhampton Hospital in relation to a right gluteal desmoid tumour (“desmoid tumour”), and consulted with a Dr Burge;
  1. (b)
    Dr Burge referred the plaintiff to a Dr Fay;
  1. (c)
    Dr Fay advised the plaintiff about a radiation therapy for the treatment of the desmoid tumour, known as TomoTherapy;
  1. (d)
    in reliance upon the advice of Dr Fay, the plaintiff agreed to attend the Royal
  1. Brisbane & Women’s Hospital (“RBWH”) to receive the TomoTherapy treatment.
  1. [10]
    In the period from February 2012 to March 2012, the plaintiff underwent TomoTherapy treatment under the direction of Dr Fay at the RBWH.
  1. [11]
    The plaintiff maintains that at the material time, and since about 2008, published international literature recommended doses of radiation therapy for the treatment of desmoid tumours located as in the case of the plaintiff’s tumour, at the level of 56 Gy in 28 daily fractions (recommended dose).  The plaintiff alleges that at the material time this was the standard of recommended dosage both internationally and within Australia.  
  1. [12]
    In respect of the TomoTherapy the plaintiff underwent:
  1. (a)
    the dose of radiation prescribed by Dr Fay was 60 Gy in 30 daily fractions;
  1. (b)
    the median delivered dose to the plaintiff, that is the dose most of the treated area received, was 60.29 Gy in 30 daily fractions, being more than 9 per cent higher than the recommended dose; and
  1. (c)
    the maximum delivered dose to the plaintiff was 62.71 Gy, being 12 per cent higher than the recommended dose.
  1. [13]
    The plaintiff maintains that the TomoTherapy she received caused her to suffer the following injuries:
  1. (a)
    osteoradionecrosis[1] of the right sacrum;
  1. (b)
    insufficiency fractures;
  1. (c)
    nerve pain;
  1. (d)
    ongoing fibrosis;
  1. (e)
    ongoing pain in the pelvis;
  1. (f)
    pain in the lower leg and right foot; and (g) depression.
  1. [14]
    The plaintiff maintains that the above injuries were caused by Dr Fay’s[2] negligence (for which the other defendants[3] are vicariously liable, or otherwise liable by reason of their own negligence). That negligence is articulated in paragraph 13 of the Amended Statement of Claim.  The negligence is said to be:
  1. (a)
    undertaking the TomoTherapy treatment to the plaintiff which created an excessive risk of producing bone necrosis and fracture, and which was in excess of the recommended dose, where the recommended dose was directed to avoid the relevant risk;
  1. (b)
    prescribing the TomoTherapy treatment to the plaintiff by way of 60 Gy in  30 fractions rather than the internationally published recommended dose of  56 Gy in 28 fractions;
  1. (c)
    providing the TomoTherapy treatment to the plaintiff by way of a median delivered dose of 60.29 Gy in 30 fractions rather than the internationally published recommended dose of 56 Gy in 28 fractions;
  1. (d)
    providing the TomoTherapy treatment to the plaintiff by way of maximum delivered dose of 62.71 Gy rather than the internationally published recommended dose of 56 Gy;
  1. (e)
    failing to advise the plaintiff of the relative risks of TomoTherapy treatment to the desmoid tumour rather than linear accelerator based treatment, including that the former created an excessive risk of producing bone necrosis and fracture compared with the latter; 
  1. (f)
    failing to advise the plaintiff that there is no good medical evidence that TomoTherapy treatment provides superior outcomes to linear accelerator based treatment to the desmoid tumour; and
  1. (g)
    failing to advise the plaintiff of the risks, including the relevant risk, of obtaining TomoTherapy treatment by way of 60 Gy in 30 fractions rather than the internationally published recommended dose of 56 Gy in 28 fractions.
  1. [15]
    There is no dispute that all of the causes of action relied upon are, prima facie, statutebarred.  It is for this reason that the plaintiff seeks an extension of time pursuant to  s 31 of the LAA.
  1. Legislative framework
  1. [16]
    Having outlined the pleaded case, I turn to the statutory framework.
  1. [17]
    The relevant provisions of the LAA are ss 11(1), 30(1)-(2) and 31(1)-(3).  They are to the following effect:
  1. “11
    Actions in respect of personal injury
  1. (1)
     Notwithstanding any other Act or law or rule of law, an action 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) in which damages claimed by the plaintiff 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 shall not be brought after the expiration of 3 years from the date on which the cause of action arose.
  1. …
  1. 30
    Interpretation
  1. (1)
    For the purposes of this section and sections 31, 32, 33 and 34 —
  1. (a)
    the material facts relating to a right of action include the following—
  1. (i)
    the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
  1. (ii)
    the identity of the person against whom the right of action lies;
  1. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
  1. (iv)
    the nature and extent of the personal injury so caused;
  1. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
  1. (b)
    material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
  1. (i)
    that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
  1. (ii)
    that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
  1. (c)
    a fact is not within the means of knowledge of a person at a particular time if, but only if—
  1. (i)
    the person does not know the fact at that time; and
  1. (ii)
    as far as the fact is able to be found out by the person—
  1. 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.
  1. …
  1. 31
    Ordinary actions
  1. (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.
  1. (2)
    Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
  1. (a)
    that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the plaintiff until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
  1. (b)
    that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the plaintiff in that court, the period of limitation is extended accordingly.
  1. (3)
    This section applies to an action whether or not the period of limitation for the action has expired—
  1. (a)
    before the commencement of this Act; or
  1. (b)
    before an application is made under this section in respect of the right of action.”
  1. Legal principles applicable to the application
  1. (i)
    General approach pursuant to s 31 of the LAA
  1. [18]
    It is the plaintiff who bears the onus of establishing that she is entitled to an extension of the limitation period.
  1. [19]
    The proper approach to an application brought pursuant to s 31 of the LAA is a “stepby-step” approach.  Justice Dawson in Do Carmo v Ford Excavations Pty Ltd[4] explained the process as follows:[5]
  1. “…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. (ii)
    Material facts of a decisive character
  1. [20]
    Section 30(1)(b) of the LAA deals with the concept of whether a material fact relating to a right of action is of a decisive character.
  1. [21]
    A material fact is one which constitutes the acts or omissions, including those facts necessary to show the negligent character of those acts or omissions, upon which a cause of action might be founded.  A material fact is not an understanding of the law itself or the legal consequences of material facts.[6]
  1. [22]
    Material facts which relate to the right of action include the fact of the occurrence of negligence, the fact of a breach of duty on which the right of action is founded, or a fact going to the extent to which the personal injury is caused by the negligence or a breach of duty.[7]
  1. [23]
    Such material facts will be 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 that an action would have a reasonable prospect of  success, and of resulting in an award of damages sufficient to justify the bringing of an action, and that he or she ought, in his or her own interest, to bring an action.[8]
  1. [24]
    It is important to bear in mind that there is a distinction between knowledge that someone has caused an injury, and knowledge that a person has caused it negligently.  That distinction has been recognised as one which is fundamental. Both sets of knowledge are in respect of material facts.[9]
  1. [25]
    The newly discovered fact must not be considered as separate from the facts already known. If, properly advised on the state of the evidence at a particular time, the plaintiff should have pursued an action before the discovery of the material fact, it will not be of a “decisive character”. Justice Macrossan in Moriarty v Sunbeam Corporation Limited[10] stated:
  1. “In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. 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. This is what the application of the test of decisiveness under s 30(b) [of the LAA] comes down to…”[11]
  1. [26]
    In Castillon v P&O Ports Limited (No. 2),[12] Keane JA (as his Honour then was) observed that there may be a “critical mass of information” known by the plaintiff or within the plaintiff’s means of knowledge which shows that a worthwhile right of action exists. A fact will not be a material fact of a decisive character if it only reveals that the cause of action may be “more worthwhile”.  In the context of the case which was before the Court of Appeal, Keane JA found:
  1. “In the plaintiff's second application at first instance, the plaintiff argued successfully that the material fact of a decisive character was the fact of the termination of the plaintiff’s employment with the defendant on 17 December 2004. In my respectful opinion, quite apart from the circumstance that this fact was obviously known to the plaintiff at the time his first application was heard and determined, the plaintiff had ample basis for concluding that his inability to work as a crane driver and the uncertainty attending his prospects of reassignment were such as to give rise to worthwhile cause of action prior to 27 November 2001. That later information may have enabled the plaintiff to show that his right of action was “more worthwhile" than it might have previously been thought to be, but it does not alter the circumstance that, in accordance with the evidence supporting the findings of Rackemann DCJ, there was a critical mass of information  within the plaintiff’s means of knowledge prior to 27 November 2001 which justified bringing the action.”[13]
  1. [27]
    Keane JA went on in paragraph [36] to distinguish the decision of Greenhalgh v Bacas Training Limited[14] because, in that case, a medical report “for the first time” informed that plaintiff that his occupation as a mechanic was ineluctably and permanently jeopardised by his injury.
  1. (iii)
    Within the means of knowledge
  1. [28]
    Section 30(1)(c) of the LAA deals with whether a fact is not within the means of knowledge of a person at a particular time. That will be so if the person does not know the fact at that time, and as far as the fact is able to be found out by the person, the person has taken all reasonable steps to find out the fact before that time.
  1. [29]
    The question of whether a material fact was within the means of knowledge of a plaintiff involves a question of reasonableness in all the circumstances. 
  1. [30]
    In Healy v Femdale Pty Ltd[15] the Court of Appeal observed:
  1. “…The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so…”
  1. [31]
    Whether a plaintiff has taken reasonable steps to ascertain the fact is a question to be considered in the context of the background and circumstances of the particular plaintiff.[16] This can include a consideration of the impecuniosity of the plaintiff.
  1. [32]
    In NF v State of Queensland[17] Keane JA (with whom Williams JA and Holmes J (as her Honour then was) agreed) observed:
  1. “It is to be emphasized that s 30(1)(c) [of the LAA] 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...”
  1. [33]
    Where the relevant fact is not observable, then a plaintiff cannot know the fact in an absolute sense.  In that situation, knowledge of that fact can only involve a certain degree of satisfaction of the existence of that fact.[18] Such a fact will only be within the means of knowledge of a plaintiff when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have been that that was so.[19]
  1. Chronology
  1. [34]
    In the period 6 February 2012 to 16 March 2012, the plaintiff received TomoTherapy as part of a treatment plan provided by Dr Fay. Dr Fay was a radiation oncologist from the RBWH, who the plaintiff had consulted with at the Rockhampton Hospital.
  1. [35]
    Following the TomoTherapy treatment in 2012, the plaintiff had increasing severe pain and discomfort, difficulty sitting and difficulty standing for long periods of time.  She complained about these symptoms to her then-treating oncologist, a Dr Burge.
  1. [36]
    On 19 December 2013, a sacral insufficiency fracture was identified on an MRI scan performed at the Rockhampton Base Hospital.
  1. [37]
    The plaintiff was treated conservatively for the insufficiency fracture throughout 2013 and 2014, and was told by her treaters that the fracture would heal and the symptoms associated with it would resolve.  She was informed by her treaters that the pain she was experiencing was not caused by the insufficiency fracture in any event. The plaintiff was told there was nothing that could be done surgically to treat the fracture.
  1. [38]
    The plaintiff’s treaters did not suggest that further investigation should be conducted into the fracture.  The plaintiff was informed by all of her treating doctors at this time, including Dr Burge and a Dr Gomez, that these fractures were considered minor, and that the symptomatology associated with the fractures would resolve quite quickly without intervention.
  1. [39]
    Throughout 2014 to 2016, the plaintiff’s treaters (including Dr Burge) continued to attribute the plaintiff’s pain to either a residual desmoid tumour, or an inflammation or thickening of the plaintiff’s sciatic nerve.
  1. [40]
    On 2 January 2016, the plaintiff wrote to Dr Fay.  In the letter, the plaintiff identified her pain and other physical disabilities which had emerged over time after the  TomoTherapy.  The plaintiff asked why the radiation side effects seemed to be worse than the tumour.  She also inquired as to whether the widespread and severe damage she received is what could be expected of such a targeted treatment.  The plaintiff did not receive a response from Dr Fay.
  1. [41]
    The plaintiff sought ongoing advice about the cause of her pain symptoms, including by seeking an opinion from a Dr Paul Stalley in August 2016. In essence, Dr Stalley (with whom Dr Burge agreed) considered that the plaintiff’s pain symptoms were not related to the insufficiency fracture, but rather a thickened sciatic nerve, which was thought to be related to prior therapies.  
  1. [42]
    The plaintiff made her own independent inquiries. She wrote to a Dr Wagner on 27 October 2016.  Dr Wagner had written an article on “Fragility Fractures of the Sacrum”.  The plaintiff received a response from Dr Wagner on 20 November 2016 which described various issues that may be causing the pain and provided some general recommendations.
  1. [43]
    On 27 October 2016, the plaintiff lodged a complaint with the Office of the Health Ombudsman (“OHO”) by which she complained of having “suffered incredibly since the radiation treatment, my nerve swelled and so did the surrounding tissues, I now had lymphoma and later that year (Oct) was told that I had sacral insufficiency fracture probably as a result of the radiation.”
  1. [44]
    The plaintiff hoped the complaint to OHO would result in an opportunity for all the information in relation to her treatment and the consequent increased pain to be reviewed independently, so that she might get some answers about why she had increased pain.
  1. [45]
    In response to the OHO complaint, Professor Bryan Burmeister, a radiation oncologist, produced a Clinical Advisor Opinion dated 5 May 2017, wherein he expressed opinions, inter alia, to the following effect:
  1. In answer to Q1 which included the sub-question, “Was the complainant provided appropriate treatment options for her desmoid tumour?”
  1. “The decision to offer radiotherapy under these circumstances may have been reasonable but it should be the decision of a multidisciplinary clinic, where all of the risks, including the late side effects of radiotherapy are fully explained to the patient. I am not convinced the risk of late effects, including the risk of fibrosis, tissue swelling and sacral fracture was fully explained to the patient which may have influenced her decision.
  1. …
  1. In answer to Q3 which listed complications being suffered and included the sub-question, “Could these have reasonably been avoided?”
  1. High dose radiotherapy to a large volume of tissue is likely to result in significant late effects or complications.  I don’t believe they are specific to TomoTherapy but could result from any form of radiotherapy.
  1. …
  1. Second malignancies such as lymphoma are a known complication of radiotherapy.  However, in order for the lymphoma to be directly associated with the radiotherapy in this case, the primary site of the lymphoma would have to close to or within the radiotherapy volume. Moreover one usually expects a lag time of at least 5 years between the 2 events for the diagnosis of a radiation induced lymphoma to be assumed.  Given that Ms Jones was given a variety of other systemic therapies before the radiotherapy was administered it is just possible her lymphoma may be linked to one or other of those agents.  Insufficiency fractures area a well know [sic] complication of radiotherapy, particularly in weight bearing bones such as the spine.  Given the dose administered and the volume of sacrum within that volume, it is not unreasonable to speculate that the radiotherapy was a causal factor for the sacral insufficiency fracture.  Other factors such as menopausal status, hormone replacement therapy and general bone mineral densitometry do also need to be taken into account.
  1. …
  1. The key issue in answering this question is whether the radiotherapy was absolutely necessary. From the medical records it would seem that it had been raised a treatment modality on several occasions. The decision to go ahead with the radiotherapy was based on intolerance of interferon and the impression from the complainant that her symptoms were getting worse. There was however no evidence on imaging that the tumour was progressing. It is possible that the complications of insufficiency fracture, tissue swelling and nerve root compression could have been avoided had the radiotherapy not been given.
  1. In answer to Q4 which provided, “Do you consider any of the practitioners who provided care to the patient fell below the standard reasonably expected of someone of an equivalent level of training or years of experience? If yes, please identify the date on which they treated the patient and the reason why.”
  1. I believe the decision to offer the complainant radiotherapy in February 2012 should have been one made in a multidisciplinary (MDT) clinic setting. The radiation oncologist Dr Fay, involved in this case did discuss the case at a “tomotherapy meeting” but I think it should have gone further than that and the decision to treat this patient should have been very carefully taken in the presence of an orthopaedic oncology surgeon, the referring medical oncologist, a radiologist and a team of allied health professionals including a  psychologist, physiotherapist and occupational therapist. The consent form signed by the patient 11.8.11 detailed the acute effects associated with he radiotherapy including tiredness, diarrhoea, change in bowels, rectal bleeding, increase in pain and second malignancy. There was however no mention of late effects resulting from fibrosis or insufficiency fractures so I am unsure as to whether the patient was made aware of these complications. In addition the volume of tissue treated to 60 Gy was quite substantial. I am unsure whether this case was reviewed by Dr Fay’s colleagues at a peer review chart round which is the standard at most academic radiotherapy units. It is just possibly that Dr Fay might have been alerted as to the possibility of significant late effects and he may have reduced the dose or volume of tissue irradiated if challenged. I am not saying that giving the radiotherapy was the wrong decision but the reasons for offering it and the possible sequelae should have been better documented with the support of the MDT and his radiation oncology colleagues.
  1. In answer to Q5 which provided, “Was the overall treatment by the health service provider reasonable? Please elaborate.”
  1. Overall I believe the [plaintiff] has received an excellent service from Queensland Health. Given that most of her management was done from Rockhampton, the standard of care was very high, particularly as far as the allied health service was concerned.”
  1. [46]
    The decision of the OHO was made on 25 May 2017. It relied on the opinion expressed by Professor Burmeister. On the issues identified, “Issues 1-3: Wrong/inappropriate treatment, unexpected treatment outcome / complications, and coordination of treatment” the OHO expressed a final view as follows:
  1. “…Whilst I am satisfied the clinical care was reasonable and appropriate in the circumstances, I am of the view conciliation may be beneficial in the management of this complaint as it will provide the complainant an opportunity to discuss any outstanding questions and ongoing management which are best addressed by the health service provide in the presence of an independent conciliator, who can assist to facilitate discussions.”
  1. [47]
    In July 2017, the plaintiff was diagnosed with osteoradionecrosis, which she understood to be a serious and irreversible progression of the sacral insufficiency fracture where the bone dies.
  1. [48]
    On 28 August 2017, the plaintiff lodged a second complaint with the OHO.
  1. [49]
    In that second complaint, the plaintiff stated, inter alia, that the TomoTherapy had caused irreversible inflammation, nerve damage, scarring, bone damage and a fracture such that she needed a full-time carer as she was unable to care for herself.  She raised within that complaint a number of questions.  They included the following:
  1. (a)
    “Why was my sacrum targeted by the TomoTherapy when it did not have tumour?
  1. (b)
    Was a mistake made in planning the radiation and my sacrum targeted accidentally?
  1. (c)
    Was a mistake made in the CT guidance of the TomoTherapy?
  1. (d)
    Why did someone not pick up during the radiation treatment that the sacrum was receiving a dose high enough to damage the bone and cause significant long-term morbidity and complications?
  1. (e)
    Why was 60 Gy used for a desmoid tumour?  Who made this decision, and can it be justified by the literature or other case studies?”
  1. [50]
    On 25 September 2017, the OHO rejected the second complaint.  In respect of the three identified issues, being:
  1. (a)
    Issue 1: wrong/inappropriate treatment - the hospital; 
  1. (b)
    Issue 2: inadequate treatment - the hospital; and  (c)
  1. Issue 3: wrong/inappropriate treatment - the practitioner, 
  1. the relevant second decision was to take no further action “…because I consider the complaint issue has been appropriately finalised by the Health Ombudsman.”  This was a reference to the early OHO response which had relied on the opinion of Professor Burmeister. The second decision of the OHO contained, inter alia, the following statement:
  1. “I appreciate the significant distress the complainant has experienced as a result of managing her complex medical conditions and subsequent complications.  I acknowledge the substantial effect it has had on her physically, emotionally and financially.  However, I am satisfied the issues raised in this complaint have been adequately addressed through a previous complaint process, noting the decision in that matter to facilitate conciliation in order to provide the complainant with an opportunity to discuss any outstanding questions and her ongoing management.”
  1. [51]
    At or about this time, Dr Burge arranged a referral for the plaintiff to a senior radiation oncologist, a Dr Phillip Chan, at the RBWH.  At the consultation in September 2017:
  1. (a)
    Dr Chan showed the plaintiff the images of the target field of the radiation treatment which she had undergone with Dr Fay;
  1. (b)
    the plaintiff was shocked at the size of the field considering that the tumour that was targeted was so small and she expressed that view to Dr Chan;
  1. (c)
    Dr Chan provided an explanation for the volume of the target area to the effect that the area targeted needed to be increased by various percentages to account for several different considerations, and this is why the area shown was increased beyond the tumour targeted area; and
  1. (d)
    Dr Chan did not express any opinion that the dosage of the TomoTherapy was too high, or that the area targeted was too large.
  1. [52]
    The plaintiff understood the discussion with Dr Chan to mean that the radiotherapy was administered over areas of healthy tissue adjacent to the tumour.
  1. [53]
    On 9 October 2017, the plaintiff sent an email identifying that she wished to appeal the second OHO decision.  That email makes clear that the plaintiff was, at that time, intending to participate in a conciliation conference.  In relation to “Issue 1: Wrong/ inappropriate treatment - the hospital”, the plaintiff’s email stated, inter alia, as follows:
  1. “I agree with most of the issues reviewed and responded to in the decision letter however, there remains an ongoing question (and a serious one for future patients) that such a precise means of delivering radiation is being utilised such rough clinical guidelines for ensuring negative margins. This was explained to me by Dr Phillip Chan and I have images of the volume identified by Dr Fay and then used for radiation delivery.  The volume is several times greater than that of the tumour volume as outlined in the MRI reports of 2010-2011 and thus of course (even though the tumour does not extend to the sacrum) targeted the sacrum.  Why almost double or triple to volume targeted for lethal dose when the tumour volume is so discreet - and to do so with such a precision machine seems quite puzzling.  It strikes me that old and outdated guidelines are being used with new technology.  Without this over-reach of the target volume my sacrum and nerve could have been spared as the machine can be targeted to within 0.5mm.  This has to be reviewed by RBWH and/or Genesis Cancer Care…”
  1. [54]
    In relation to “Issue 2: Inadequate treatment - the hospital”, the email stated, inter alia, as follows: 
  1. “…I have lost bone that will never be recovered.  Why don’t patients get a handout of the therapies that can be offered and how to access them?  This is an issue not only for RBH but for RBWH so it must be brought into the conciliation...”
  1. [55]
    From about November 2017 (to about April 2019), the plaintiff sought treatment from an orthopaedic surgeon, Dr Peter Steadman, for what the plaintiff then understood to be a sacral fracture associated with necrosis likely caused by the TomoTherapy. 
  1. [56]
    On 9 January 2018, the OHO wrote in response to the 9 October 2017 email of the plaintiff.  This decision of the OHO was to repeal its prior decision to take no further action, and to replace it with a decision to conciliate the complaint under Part 11 of the relevant Act.
  1. [57]
    As at 9 January 2018, the plaintiff knew from the accumulation of medical opinion that the TomoTherapy treatment that she had received had caused, or likely caused, the sacral insufficiency fracture and necrosis.  The evidence of the plaintiff in crossexamination was that by January 2018 she suspected that there may have been something wrong or a mistake.  The plaintiff’s evidence was further that, while she suspected this, she did not know as a fact that the radiation had been delivered to too broad an area and at too high a dosage.  Her evidence was that until Dr Pendlebury’s report, she did not know those later factors.  I accept her evidence on those issues.  Whilst the plaintiff was a highly educated person,[20] she was not a medical doctor, let alone a specialist in the field of oncology and radiation therapies. It was not until Dr Pendlebury’s report that the plaintiff came into possession of a medical opinion which identified that the plaintiff had, in an inappropriate way, received too high a dosage over too broad an area.  Certainly the prior medical opinion summarised above did not disclose those facts to the plaintiff prior to the report of Dr Pendlebury. 
  1. [58]
    It is not entirely clear on the material whether the contemplated conciliation conference actually occurred.  Nothing seems to turn on whether or not there was a conciliation conference.  The plaintiff’s recollection was that it did not actually occur. 
  1. [59]
    In January 2018, someone from the OHO suggested to the plaintiff that she should seek a legal opinion before agreeing to conciliation because, (according to that OHO person), the plaintiff would not be able to take any legal action if she conciliated.  The plaintiff gave evidence that this was the first time she was aware that she probably should investigate her legal rights.  I accept the plaintiff’s evidence on this.
  1. [60]
    By February 2018, the plaintiff was looking to retain solicitors for the purposes of investigating a potential claim in relation to her medical condition arising from the TomoTherapy treatment.
  1. [61]
    By 16 February 2018, Slater and Gordon Solicitors (“Slater and Gordon”) had made an offer to act on behalf of the plaintiff. That offer included a ‘no-win, no-fee’ agreement in a form exhibited to the affidavit of the plaintiff. The ‘no-win, no-fee’ part of the agreement generally applied to the solicitors’ fees plus at least some of the disbursements.[21] 
  1. [62]
    The exhibited documents which accompanied the offer indicate that not all disbursements were covered by that agreement. At the least, disbursements in the nature of third-party medical report fees were treated differently. Those types of disbursements were immediately payable by the plaintiff.  
  1. [63]
    Two payment alternatives were given for those types of disbursements.  One was an initial deposit of $3,000 from the plaintiff.  An email of 27 March 2018 later identified that this would most likely need to be topped up to meet future disbursements. The second option was via a loan agreement, the proceeds of which would be used to meet these types of disbursements. The loan would be advanced by a company known as Equal Access Funding Pty Ltd. The loan was up to a maximum of $10,000. The plaintiff was told that the loan was only repayable on a successful outcome for the plaintiff. The plaintiff was also told that, even if there was a successful outcome, the repayment obligation would not exceed the total amount of the successful outcome received.  
  1. [64]
    The documents exhibited to the affidavit indicate that there was, in addition to the normal fees and disbursements, an uplift amount which would have been payable to Slater and Gordon upon a successful outcome of the litigation.  The affidavit material does not exhibit the Disclosure Notice which was said to accompany these documents.  Accordingly, it is not possible to say what the uplift percentage was.  Nor, in the absence of the Disclosure Notice, is it possible to say what the particular estimation of fees and third-party medical report disbursements were.
  1. [65]
    The proposed agreement was conditional, and I note that it was titled “Conditional (‘No-Win, No-Fee’) Costs Agreement”.  
  1. [66]
    One condition concerned what would happen on certain termination events.  Clause 14 of the ‘no-win, no-fee’ agreement identified circumstances in which each of the  plaintiff or Slater and Gordon could terminate the agreement.  In all of the termination scenarios identified in cl 14.1 and 14.3, an obligation would be imposed on the client to pay all costs and disbursements then incurred within a reasonably short period of time.  Slater and Gordon’s rights of termination included:
  1. (a)
    if the client failed to take Slater and Gordon’s advice or an offer of settlement which they thought was reasonable;
  1. (b)
    the client failed to accept advice of Slater and Gordon (or the client’s barrister) given to the client which is material to the outcome of the client’s claim; (c) for other just or reasonable cause.
  1. [67]
    The agreement also contained an acknowledgement, which included the following statements:
  1. “This agreement is a legally binding document.  You should not sign this Agreement unless you have understood everything in it.  You should not hesitate to seek independent legal advice if you wish to do so.
  1. You acknowledge and accept the following:…(f) you have been informed of your right to seek independent legal advice before entering into this Conditional Costs Agreement…”
  1. [68]
    The loan agreement for the $10,000 was also conditional in its application. Its conditional nature can be seen by cl 11.1, which contemplated an absolute obligation on the client to repay amounts owing under the loan agreement in the event of default, if that default remained unremedied. Clause 11.2 set out a large list of events which may be “Events of Default” and relevantly they include the following event:
  1. “…the Borrower’s retainer with the Borrower’s Solicitor is terminated except (in the case of termination by the Borrower) as permitted by this Credit Contract…”
  1. [69]
    I also note that cl 14 of the loan agreement contained a provision which contemplated the lender having an ability to opt out of further performance of the loan agreement.  It provided as follows:

“14.

REVIEW OF LOAN

14.1

The Loan may be subject to review by the Lender(s) at any time and from time to time.

14.2

The review will include a review of the Lender(s) exposure in respect of the Loan having regard to the conduct of the Matter and Borrower’s financial position.

14.3

The Borrower must provide or cause to be provided to the Lender(s) any documents or information reasonably required by the Lender(s) when requested in order to assist the Lender(s) in the conduct of the review.”

  1. [70]
    In the email which accompanied the offer, a solicitor from Slater and Gordon stated, inter alia as follows:
  1. “I have now had the opportunity to speak to Alex.
  1. He is of the view based on your instructions and the material received from you so far, that you have some prospects of success…
  1. However this is subject to further investigations to be completed…”
  1. [71]
    I pause to note that during the hearing of this application it was emphasised by the defendants that the plaintiff had not made available, or had objected to the production of, any of her prior solicitors’ files which had been sought by the defendants for the purposes of this application. It is clear that the non-production of those files[22] had been on the basis of a claim of legal professional privilege. At no time during the hearing of this application was it contended by the defendants that the privilege had been waived by the plaintiff. In effect, the claim for legal professional privilege over those files remained unchallenged.  
  1. [72]
    Legal professional privilege is a fundamental right. No inference can be drawn simply from a party maintaining a valid privilege. However, there will be cases where a party who bears the onus in an application of this nature will have to explain what steps they took in order to satisfy the question of whether they took all reasonable steps.  That party runs a risk that they may not discharge the onus, for example, by setting out how they followed up or otherwise interacted with a dilatory solicitor.  Such was the case in Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2022] QCA 189.[23] The present application is not such a case.
  1. [73]
    On 7 March 2018, the plaintiff sought further clarification in relation to the documents which had been sent to her, particularly the options presented via the loan agreement of $10,000 and the $3,000 deposit. This included the question of whether, if no settlement took place, the plaintiff would be refunded the $3,000 deposit.
  1. [74]
    On 7 March 2018, she received a purported clarification that the $10,000 loan agreement would only be paid from settlement money if her claim was successful, and that if her claim was not successful, she would not be required to pay out the loan as Slater and Gordon would repay it on her behalf.  In relation to the $3,000, she was also told that if that sum was utilised it would not be refundable and there would most likely be further outlays to be incurred beyond that amount.  
  1. [75]
    In her affidavit evidence, the plaintiff gave evidence that she had been informed by Slater and Gordon that she needed to put $3,000 into their trust account and that she was aware that there were significant conditions on the agreement that she had been provided. The plaintiff also noted that the costs agreement also recommended that she seek legal advice about the costs agreement.
  1. [76]
    In relation to her statement about the $3,000, I observe that was only one option that she was informed of by Slater and Gordon. The other option was the $10,000 loan, about which she had been given an explanation as to the circumstances under which that sum would be repayable. Accordingly, her unqualified statement that Slater and Gordon required her to put in the $3,000 cannot be accepted. I am satisfied that by 7 March 2018 the plaintiff would have understood that two separate options were open  in respect of the payment of disbursements not covered by the ‘no-win, no-fee’ offer.  However, I accept the plaintiff’s evidence that there were significant conditions on the agreement she had been given. The conditions attaching to the termination of the retainer and the loan agreement, and the associated exposure of a client to repayment of legal costs, disbursements and the loan amount, prior to and regardless of the outcome of a determination, are clearly significant conditions to such an arrangement.
  1. [77]
    In her first affidavit, the plaintiff deposed that in or around June 2018 she sought a second opinion from another firm called Revolution Law, who provided her with an initial view that she would not be able to bring a claim because it was out of time, and also informed her that they could investigate the out of time issue for an estimated upfront cost of $15,000.
  1. [78]
    It is clear from documents exhibited to the affidavit material of the defendants that the plaintiff had, in fact, retained Revolution Law at a date earlier than June 2018.
  1. [79]
    On 2 May 2018, Revolution Law, on behalf of the plaintiff, had written to the second defendant advising that they acted for the plaintiff in relation to injuries which she sustained from the TomoTherapy treatment. That covering letter stated, inter alia, as follows: 
  1. “We are instructed that our client underwent tomography at the RBWH from February 2012 to April 2012 for right gluteal desmoid tumour (“the tumour”) and that the consent process, the volume of radiation administered during the tomography and the targeting of the sacrum, not affected by the tumour, was incorrect and inappropriate.”
  1. [80]
    That letter enclosed an Initial Notice pursuant to s 9A of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”).  
  1. [81]
    The letter also made a request for medical records from the RBWH in accordance with detailed categories set out within the letter.
  1. [82]
    I am satisfied that at the time the Initial Notice was sent, the plaintiff suspected that something was wrong in how she had received the services. I am satisfied that her suspicions included that the volume of the radiation administered and the targeting of the sacrum may have been inappropriate. However, I am also satisfied that she did not know this to be the case. The statement in the Initial Notice reflected this suspicion held by the plaintiff.
  1. [83]
    The plaintiff was cross-examined on this issue.  That cross-examination concentrated very much on the plaintiff’s second complaint to the OHO, and the OHO response and the 2 May 2018 letter.  It is worth setting out an extract from the crossexamination at Transcript 1-41 line 38 to 1-43 line 20 as follows:
  1. “Ms Jones, in circumstances where you had agitated in your second OHO complaint that you had been – you had received a high volume of radiation across too large an area, including into your sacrum, and in circumstances where your initial notice from Revolution Law to the Hospital and Health Service prepared on your instructions indicated you’d had inappropriate, incorrect treatment at too large a volume and dosage, it is simply untrue for you to say that the first time you became aware the dosage of your TomoTherapy treatment was too high and the area targeted was too big was when you read Professor Pendlebury’s report in February 2020?---Well, I think, to clarify that, you – the – the Ombudsman’s report – the Ombudsman’s report was – a – a large area had been targeting, including the sacrum, and a high dose had been given; enough that it could have fractured the sacrum, but at that time, no doctor had actually said that was the case.  No. But that’s what you believed and knew; isn’t it?---But I’m not a medical person. 
  1. No. But that’s why you made the complaint – the second complaint, and that’s why you embarked upon the claim via Revolution Law; because that is what you knew in your heart - - -?---I - - -  - - - and believed?--- - - - suspected that - - -   Yes?--- - - - something was wrong. 
  1. Professor Pendlebury’s report did no more than provide you with the medical evidence you needed to back up what you already knew in your heart and mind to be the case?---I didn’t know it in my heart and mind. 
  1. Well, you were agitating complaints and claims based on those two very propositions?---It was all in – it was all investigative to – to find out what had gone wrong, but nobody could answer it. 
  1. But those two very things – dosage too high and area too large – were the two things you had emphatically complained of - - -?---But - - - 
  1. - - - to the OHO in 2017, and that you’d said to Revolution Law in 2018?---But – but the – but it’s not – the – the – the important word there is “too” high, or “too” large. It was a large area and a high dose, but I didn’t know that it was too high and too large. 
  1. And Professor Burmeister had identified that – the prospect that the damage to your sacrum might not have occurred if a lesser dosage had been used?---Yes, but that didn’t mean anything to me about dosage. 
  1. I suggest that the information in Professor Pendlebury’s report did no more than give you support for the very allegations you’d been prosecuting for well over two years – in fact, close to three years up to that point?---You can suggest that, but you’re wrong. Dr Pendlebury’s report was a complete surprise, and at no time before that time did I know that I’d been given too large a dose over too large an area. 
  1. Well, Ms Jones, you were shocked by the size of the area that Phillip Chan showed you - - -?---Yes, but he - - - 
  1. You described – let me finish. You described being shocked by the volume - - -?---That’s right.  - - - that had been treated - - -?---Yep.
  1. - - - and you knew you’d been given treatment at 60 Gy?---But he – he placated me, and said, “This is normal practice; this is what we do”.
  1. And - - -?---“This is TomoTherapy”.
  1. And Professor Burmeister’s advice to the OHO gave you an indication that that was a problematic issue. Do you agree with that?---No, I don’t.
  1. And given all of your powers of research and the extensive manner in which you’ve engaged in researching medical issues in relation to your condition, the first occasion that you attempted to make any legal inquiry into your position was after six years of chronic, unrelenting pain that had left you virtually unable to walk, sit, stand, drive, sit at a computer; anything of that kind?---And all that time, six specialists – highly regarded - - -
  1. Yes?--- - - - specialists, including my treating doctor, Burge - - -
  1. Yes?--- - - - had steered me away from the prospect that any mistake had been made; that any dosage was given that was too high. In fact, Dr Burge at one stage said, “I hope you’ll get better”.
  1. …”[24]
  1. [84]
    The plaintiff’s answers were consistent with a suspicion, but not knowledge, of the matters set out in paragraph [82] above. 
  1. [85]
    On 10 May 2018, the second defendant provided the requested documents. On  11 May 2018, an email was sent by solicitors acting on behalf of the second defendant which, inter alia, identified that the claim was statute-barred and inquired of the plaintiff’s intentions in respect of rectifying the issue.
  1. [86]
    On 11 May 2018, Revolution Law, on behalf of the plaintiff, stated in response that consideration would be given to obtaining a specialist opinion and that the opinion, if favourable, would provide the basis for a material fact application.
  1. [87]
    Even though the plaintiff ultimately gave oral evidence that she did not recall the earlier retainer, she accepted in a second affidavit, and also orally, that she must have retained Revolution Law prior to June 2018.  Clearly this must have been the case by 2 May 2018 at the very latest.
  1. [88]
    The plaintiff, in cross-examination, gave evidence that Revolution Law was a notfor-profit law firm[25] and that she had held discussions with Revolution Law about an alternative approach in the form of legal aid funding.[26] I accept this evidence.
  1. [89]
    This evidence supports the finding that, quite apart from looking at Slater and Gordon as her potential lawyers, in the second quarter of 2018, the plaintiff was separately considering the retaining of another firm as her lawyers.  
  1. [90]
    This evidence also supports the finding that a decision was made by the plaintiff, at the very latest, by 2 May 2018, to retain Revolution Law, rather than retain Slater and Gordon. 
  1. [91]
    On 25 June 2018, an email from the plaintiff to Slater and Gordon identified first, that the plaintiff’s alternative approach to funding with Revolution Law had been unsuccessful. That alternative approach had been by way of an application for funding from Legal Aid Queensland for what was described in the email as “relating to an out of time application”.  
  1. [92]
    Secondly, the email recorded the plaintiff inquiring of Slater and Gordon if its offer was still open.  The plaintiff asked if she could discuss Slater and Gordon’s offer via the telephone before sending back the documents.  
  1. [93]
    Accordingly, having previously retained Revolution Law and having unsuccessfully applied for Legal Aid funding (at least for the purpose of exploring the bringing of an application to extend time), the plaintiff now wished to take up the prior offer of Slater and Gordon.
  1. [94]
    On 25 June 2018, Slater and Gordon stated in response that they were unable to assist further.  They said, in part, “…yours is not the sort of matter we could take on.”  They offered to provide details of another lawyer the plaintiff could try if she wished to seek another opinion.
  1. [95]
    As a result of Slater and Gordon having closed off their offer, the plaintiff then continued to retain, or to re-engage, Revolution Law for the purposes of identifying potential medico-legal opinions.  
  1. [96]
    The plaintiff was then kept up-to-date with Revolution Law’s searches for specialists during June and July 2018.  Revolution Law was having difficulty finding a specialist.  The plaintiff was advised by Revolution Law at this time that it was seeking a verbal opinion from a specialist at a cost of between $2,000 to $3,000 and, depending on the opinion, would then obtain a written report.
  1. [97]
    In or about August 2018, a Professor Vaughan was identified as a potential expert.  The plaintiff was then informed by Revolution Law that Professor Vaughan was ultimately not able to comment on complications of radiotherapy and, as a result, his engagement was not being advanced.
  1. [98]
    The plaintiff deposed that she was following up the solicitor at Revolution Law monthly.  Under cross-examination, the plaintiff identified that there were periods where it was difficult to contact the solicitor from Revolution Law.
  1. [99]
    By September 2018, the plaintiff was informed by Revolution Law that a Professor Veness (a radiation oncologist) had been identified as a potential expert who may be willing to comment verbally on her case.  However, within a further short period, the plaintiff was then informed that Professor Veness was not willing to assist.
  1. [100]
    The plaintiff’s evidence (which I accept) was that she was frustrated with the delay at this time.  The solicitor from Revolution Law advised her that there were difficulties in locating and getting a specialist to comment against another doctor within their speciality.  
  1. [101]
    The plaintiff gave instructions to continue the search for a specialist to provide comment.  At the same time, the solicitor from Revolution Law reminded the plaintiff that Revolution Law was not willing to act on a ‘no-win, no-fee’ basis.  Revolution Law suggested that the plaintiff might be able to find another lawyer who was willing to act on that basis.
  1. [102]
    It is evident that in September 2018 the plaintiff was exploring that very issue.
  1. [103]
    By 19 September 2018, the plaintiff had approached Bennett & Philp Lawyers to potentially act on her behalf in relation to a claim arising from the injuries caused by the TomoTherapy.
  1. [104]
    On 19 September 2018, Bennett & Philp Lawyers replied that they were not prepared to act in the matter.  They pointed out that the three year limitation period had expired and stated, inter alia: 
  1. “…Unless there was a period commencing before February 2015 when you did not have legal capacity (eg in a coma or did not have mental capacity), then the only way that the limitation period can be extended is if “a material fact of a decisive character” comes to your knowledge.  Such a material fact might be being told by a doctor that the cause of injury was the tomography.  After finding out about the material fact, you then have 12 months in which to file a claim in a court.
  1. It seems to me that there are a number of indications that you knew sufficient facts about your possible claim prior to 12 months ago (September 2017) to make a decision about whether or not to proceed with a claim.  So I do not see any real prospect of a successful application to a court to extend your limitation period.
  1. I am sorry, but in those circumstances, our firm is not prepared to act on a speculative (‘no-win, no-fee’ basis).”
  1. [105]
    During September 2018, Revolution Law identified a Professor Fox, who was willing to provide a verbal comment for more than $3,000.  Again, Revolution Law restated they were not willing to act on a ‘no-win, no-fee’ basis.  The plaintiff deposes that at that time she could not afford to pay the fee requested for a verbal opinion from Professor Fox.  She deposes that she was overwhelmed with the potential expense of the claim and was also continuing to suffer pain and uncertainty with her medical condition and future needs.  She identifies at this point she ceased her engagement with Revolution Law.
  1. [106]
    In cross-examination,[27] the plaintiff expanded on her situation as it existed at this point in time as follows:  
  1. “And you were continuing to suffer pain and uncertainty with your medical condition and future needs.  And it was at that point that you ceased engagement with Revolution Law?---  I didn’t so much cease engagement as it petered out.  At that time - so the fracture had happened again.  So the glue had failed.  So my whole world had fallen apart, basically.
  1. I see. So your condition was even more serious?--- It had gone from stable and hopeful to again no - there’s no option here.
  1. So, it was a worsening scenario for you?--- Yeah.  Correct.
  1. And you had lawyers that you were in contact with. I see. Correct?
  1. You’re nodding. But you’re not answering?--- Sorry, I - I was focussed more on the pain and the fact the glue had failed.
  1. But you agree with me your situation was worsening and you were in contact with lawyers at that time?--- Yes.”
  1. [107]
    The glue being referred to was a glue previously used in the attempt to stabilise the plaintiff’s pelvic region where the fractures had occurred.
  1. [108]
    That evidence continued further:[28]
  1. “Now, after you received the rejection from Bennett & Philp and then a couple of weeks later, presumably, that the Revolution Law contact peter out because of the expense, the next occasion that you consulted a law firm, that having happened in 2018, was in March 2019, and that was a family lawyer.  Correct?---That’s correct.  Yeah. Dennis.
  1. And that was because of an issue that you and your then partner  had?---Yep.
  1. Is that right?---Yep.
  1. And he had some financial issues, and you were going through some sort of property settlement.  Is that right?---Yes.
  1. And I think you had a mortgage together. Is that right?---Yes.  That’s correct.
  1. Okay?--- A business loan.
  1. A business loan. So despite having commenced a claim against the hospital service and having Ms Kowalik look for an expert to find a report for you to deal with your limitation extension issue, after you stopped dealing with her, you had a period from the end of September through to  2018 - to March 2019 where you took no action whatsoever to progress your claim or your legal matter. Correct?---So during that time, the glue had failed, which we found out through a CT scan in August. That was devastating because I had taken months and months and months to get home to Emu Park, to my home, to my partner, and the pain had started again. I was walking, and then I wasn’t walking because it had failed. The implications of that were hitting me. I didn’t – couldn’t see Dr Steadman until November to even see what we could do about it, and he was very doubtful at the time that there were any options at all. So it was looking very very grim. I was in a lot of pain, and at the time, I had to move back to Brisbane because of the pain.
  1. Indeed. So your condition had become even worse and more  acute?---And I was dealing with that at the time, my whole world falling apart.  
  1. And yet you did nothing to contact anyone to progress your legal  matter?---As I said, my whole world was falling apart.
  1. So you did nothing over that period. Correct?---I wouldn’t – I don’t think you’re correct in saying that I did nothing. 
  1. And in fact when you did speak to anyone about it, it wasn’t because your condition had improved, and you were ready again to re-enliven your legal matter relating to your medical treatment, but you were actually seeing a lawyer for family law purposes?---Well, from my point of view, the – Olamide[29] had been very pessimistic about the whole issue anyway. Six – six separate specialists, some of them fairly highly regarded specialists had said there’s nothing to see here anyway. The ombudsman had more or less there was nothing to see here, and it wasn’t my entire focus when my sacrum had refractured. 
  1. I may have asked the question inelegantly because you haven’t answered it. When you next saw a lawyer, it wasn’t because your condition had improved enough to allow you to see a lawyer about your legal matter arising out of your medical treatment, but in fact, you saw a lawyer about family law matters - - -?---Yes. That’s correct. 
  1. - - - in March of 2019?---Yes. That’s correct. 
  1. And then that lawyer, was it a Mr Kehany or Kaheny[30]; is that correct?--Yes. 
  1. That lawyer then provided you with the name of Mr Luke InghamMyers?---Yep. 
  1. And he did that in March 2019, and you didn’t have contact with Mr Ingham-Myers until June of 2019. Correct?---That’s right. 
  1. You let a further three months go past. Correct?---And at this time, Dr Steadman was trying to work out how to put my sacrum back together, and I was in terrible, terrible pain and facing some financial difficulties.”
  1. [109]
    I accept the evidence of the plaintiff in relation to the deterioration of her condition from August 2018 to March 2019.  I accept her evidence that she was in financial difficulties during this period.  
  1. [110]
    In the plaintiff’s second affidavit, she had also deposed to the financial difficulties occurring in the second half of 2018 due to her then partner having problems refinancing his business.  She deposed that if refinance could not be found, they would have had to sell their home at Emu Park in Central Queensland, as her then partner’s business loan was linked to that property.  At the same time, the plaintiff was defending a Centrelink debt of $32,000 in the Administrative Appeals Tribunal (“AAT”).  She exhibits a Legal Aid letter of 24 September 2018 to her affidavit which relates to an AAT proceeding concerning this Centrelink debt. She deposes to, and I accept, that at this time in the second half of 2018 she could not afford to pay the fee that had been requested for the verbal opinion from Professor Fox.
  1. [111]
    In late 2018, the plaintiff consulted a Dr Cameron Dickie, Head of Radiation at the RBWH, about her pain. He suggested, and the plaintiff agreed, that she should be admitted to the RBWH to attend the Pain Team and that during that stay he would meet with her to answer some questions.  The plaintiff deposes that during that meeting on or about 1 December 2018, Dr Dickie told her that the dose of radiotherapy she had received was not excessive and that normally the risk of sacroiliac fracture was low. The plaintiff understood Dr Dickie’s explanation to her as being that the radiation may have caused the fracture, but that there were other contributing factors and that no mistakes had been made.
  1. [112]
    I accept that the plaintiff was effectively overwhelmed in this period between September 2018 and March 2019 by the effects of a variety of factors including:
  1. (a)
    her deteriorated physical condition;
  1. (b)
    her serious financial difficulties; and
  1. (c)
    her despair over the view of lawyers and doctors which were pessimistic about any claim.
  1. [113]
    In March 2018, the plaintiff was speaking with Denis Kearney of Noosa Family Law in relation to a financial separation from her then partner.  During discussions, her medical condition came up.  Mr Kearney suggested the plaintiff contact her now current solicitors about whether they may be prepared to investigate the possible medical negligence issue.
  1. [114]
    On 18 June 2019, the plaintiff had initial discussions with her current solicitors.  Mr Ingham-Myers advised on that occasion that it was unclear at that stage whether there was any actionable negligence, but he was willing to assist further to review the evidence and see if there may be a potential claim.  Following this meeting, the plaintiff provided material such as the letters from the OHO and her hospital file which related to her condition.  
  1. [115]
    On 25 July 2019, an orthopaedic surgeon, Professor Paul Smith, performed minimally invasive fixation surgery in Canberra on the plaintiff’s sacral fracture.
  1. [116]
    On 15 October 2019, Dr Steadman provided the plaintiff’s current solicitors with a report wherein he opined as follows:
  1. “Sometime around late-2018 she started to develop significant pain. It became apparent that she had a radiation osteitis with sacral ala fracture.
  1. ...
  1. The last time I saw her, she was complaining of severe pain in and around the sacral area of irritation of the S1 nerve root on the right from the fractured sacral ala in the area of failing bone due to radiation osteitis.
  1. …
  1. She went on to develop sacral ala radiation osteitis, which resulted in bone failure structurally and secondary or progressive fracture and fragmentation requiring further cementation x 2 with final insertion of a prosthetic device.
  1. …
  1. The complications which she experienced reflect the radiotherapy, but the radiotherapy was necessary to manage the recurrent Desmoid disease which is causing her symptoms.
  1. …
  1. Radiation treatment and its considerations regarding dose and IMRT are beyond the scope of my specialty…”
  1. [117]
    Given Dr Steadman’s inability to opine on the TomoTherapy treatment, the plaintiff’s new solicitors set about trying to locate an expert who could assist.  Ultimately, Dr Pendlebury was located as a potential expert and her opinion was promptly sought.
  1. [118]
    On 26 February 2020, the report by Dr Pendlebury was obtained.
  1. [119]
    Relevantly, the 26 February 2020 report of Dr Pendlebury contained, inter alia, the following statements:
  1. “The most published of the international centres is the MD Anderson Cancer Centre in the USA. Their publication of 2008 which reviewed 115 cases recommended a dose of 56Gy. Their conclusion was “Doses [greater than] 56Gy may not be necessary to control gross disease and are associated with high rates of radiation related complications.” A similar finding came from a prospective European study where again 56Gy was the dose prescribed.
  1. ...
  1. This was the standard of care in Australia also, as evidenced by the publication from the Sydney, Royal Prince Alfred Sarcoma Group reviewing 50 cases between 1988 and 2016, also used a median does of 56Gy.
  1. ...
  1. 56Gy in 2Gy per fraction remains the international standard of care.
  1. ...
  1. The risk of normal tissue necrosis depends upon the volume of tissue treated and the dose of the radiation delivered.
  1. …
  1. A detailed analysis of the relationship between the amount of bone irradiated and the location of the dose was published in 2009 in a wellregarded international radiation oncology journal, from Princess Margaret Hospital in Canada. For patients who fractured after radiation therapy the mean dose at the fracture site was 59Gy, and the maximum dose was 64Gy. This was compared with a mean does to bone not fractured of 37Gy and maximum dose of 59Gy. Their conclusion was that the risk of fracture was reduced if the maximum dose anywhere on the bone was less than 59Gy.
  1. ...
  1. The dose of the radiation therapy [given to the plaintiff] was higher than the literature would recommend and was delivered to a large area... The radiation therapy is responsible for the osteoradionecrosis of the right side of the sacrum and the radiological changes and insufficiency fracture are consistent with that. There was 20-30% risk of bone necrosis as the treatment was given which is higher than the 1-2% expected with a dose of radiation of 56Gy.
  1. …
  1. The sacral insufficiency fracture is a result of necrosis of the bone of the sacrum which is a weight bearing bone, and this is a result of the dose of radiation therapy delivered. It is not unexpected when doses of radiation in excess of 59Gy are delivered to a large area of bone.
  1. …
  1. A dose of 56Gy delivered in 28 fractions was the international and national standard at the time. This risk of complications escalates rapidly as the dose increases from 56-60Gy and above. On a more likely than not basis, the complication of bone necrosis would have been avoided with 56Gy of radiation therapy.
  1. …
  1. The side effects are related to the dose of radiation therapy delivered and the volume of the pelvis treated.
  1. …
  1. The likelihood of bone necrosis escalates with doses over 56Gy as was delivered in this case. Most bone tumour units warn patients of the risk of fracture when bone must be in the treatment field.
  1. …
  1. It is a pity the radiation therapy was not discussed in a multidisciplinary forum with experienced clinicians and delivered in an evidence-based way…”
  1. [120]
    Supplementary reports were obtained from Dr Pendlebury on later occasions. It is accepted that the 26 February 2020 report is the only report relevant for the identification of the purported material facts of a decisive character.
  1. Ultimate issues
  1. [121]
    In order to determine this proceeding, the relevant legislation and legal principles will have to be applied to the facts as found in a chronology of events.  The court will have to consider whether the plaintiff has discharged her onus of proof in respect of a number of issues.  The relevant issues arising from the statutory framework may be identified as follows:
  1. (a)
    whether the relevant facts identified by Dr Pendlebury in her 26 February 2020 report are material facts;
  1. (b)
    to the extent that they are material facts, are they material facts of a decisive character;
  1. (c)
    were the material facts of a decisive character within the plaintiff’s means of knowledge before the 12 months prior to the commencement of the proceeding on 24 February 2021;
  1. (d)
    whether there is evidence to establish a right of action against the defendants; and
  1. (e)
    whether the plaintiff ought to have the discretion exercised in her favour, including by a consideration of whether there is prejudice occasioned to the defendants that would justify a disallowance of the application.
  1. [122]
    The defendants resist the application on the ground that the purported material facts of a decisive character relied upon by the plaintiff are said to have been available well prior to 24 February 2020, had reasonable steps been taken to ascertain that fact by the plaintiff.  
  1. [123]
    In the alternative, the defendants further submit that the purported material facts relied upon by the plaintiff were, in any event, not new facts previously unappreciated by the plaintiff prior to her receipt of Dr Pendlebury’s report.  It is said that the report is simply medico-legal evidence which proves matters previously within the plaintiff’s belief.  In that respect, the defendants contend that the report goes to evidence, not newfound knowledge of material facts of a decisive character.
  1. [124]
    The argument in this application focused on the first to third, and the fifth issues in paragraphs [121](a) to (c) and (e) above.
  1. [125]
    In relation to the fourth issue set out above at paragraph [121](d), this issue has been conceded by the defendants.  That concession was properly made as there was clearly evidence before the Court to sufficiently establish that a prima facie right of action existed.
  1. Existence of a material fact of a decisive character relating to the right of action
  1. (i)
    Identification of the material facts alleged
  1. [126]
    The material facts which the plaintiff says she was unaware of are those set out at paragraph [4](a)-(f) above.  It is worth setting them out again.  They are:
  1. (a)
    a dose of 56 Gy of radiation therapy delivered in 28 fractions was the international and Australian standard for the treatment of the plaintiff’s condition at the time she was treated; 
  1. (b)
    this standard was supported by international literature in the oncology field which existed at the time of her treatment;
  1. (c)
    the dose of the radiation therapy given to the plaintiff was higher than that which the literature recommended;
  1. (d)
    the risk of an insufficiency fracture and bone necrosis at the dose level delivered to the plaintiff was substantially higher (at 20 - 30 per cent), compared with the risk of 1 - 2 per cent expected with a dose of radiation at 56 Gy;
  1. (e)
    an insufficiency fracture due to necrosis of the bone of the sacrum (a weightbearing bone) is not unexpected with doses of radiation in excess of 59 Gy; and
  1. (f)
    on a more likely than not basis, the complication of bone necrosis would have been avoided with 56 Gy of radiation therapy, as opposed to the 60 Gy in 30 daily fractions which the plaintiff had received from Dr Fay.
  1. [127]
    The plaintiff says that Dr Pendlebury’s report of 26 February 2020 was the first time she had been informed of this information and that in view of this information she concluded that she might have a case for medical negligence.
  1. [128]
    I am satisfied that these are material facts as they go to the factual event of breach of the duty of care and the occurrence of negligence.
  1. (ii)
    Material fact of a decisive character 
  1. [129]
    It is necessary to examine the state of knowledge of the plaintiff in order to determine whether there were material facts of a decisive character which she was unaware of before Dr Pendlebury’s report.  
  1. [130]
    The facts as found in the chronology support that, prior to February 2020, the plaintiff essentially knew or understood the following:
  1. (a)
    that the sacral insufficiency fracture diagnosed on MRI on 19 December 2013 was associated with, and likely caused by the TomoTherapy administered by Dr Fay;
  1. (b)
    that the sacral insufficiency fracture progressed to a sacral ala fracture associated with radiotherapy necrosis or osteoradionecrosis (radiation induced bone death), for which she required multiple surgeries;
  1. (c)
    that the radiation field covered tissue and bone around the discrete tumour site (including her sacrum in the area where the fracture was sustained);
  1. (d)
    that the volume of tissue treated to 60 Gy was quite substantial;
  1. (e)
    that certain of the persons treating her at the RBWH, including Dr Dickie, were of the view and had informed her that the dose of radiation she had received was not excessive, that normally the risk of sacroiliac fracture was low, that while the radiation may have caused the fracture, there were other contributing factors and that no mistake had been made;
  1. (f)
    that she had not been warned of the risks of sacral insufficiency fracture or osteoradionecrosis as being risks associated with radiation treatment; and
  1. (g)
    that none of the health professionals she had spoken to or engaged with proffered the opinion that the radiation received was at too high a dose over too large an area.
  1. [131]
    I find, based on the facts set out in the chronology, that what the plaintiff did not know and had not been able to discover for herself prior to the receipt of the Dr Pendlebury report dated 26 February 2020 was:
  1. (a)
    a dose of 56 Gy of radiation therapy delivered in 28 fractions was the international and Australian standard for the treatment of the plaintiff’s condition at the time she was treated;
  1. (b)
    this standard was supported by international literature in the oncology field which existed at the time of her treatment;
  1. (c)
    the dose of the radiation therapy given to the plaintiff was higher than that which the literature recommended;
  1. (d)
    the risk of an insufficiency fracture and bone necrosis at the dose level delivered to the plaintiff was substantially higher (at 20 - 30 per cent), compared with the risk of 1 - 2 per cent expected with a dose of radiation at 56 Gy;
  1. (e)
    an insufficiency fracture due to necrosis of the bone of the sacrum (a weightbearing bone) is not unexpected with doses of radiation in excess of 59 Gy; and
  1. (f)
    on a more likely than not basis, the complication of bone necrosis would have been avoided with 56 Gy of radiation therapy, as opposed to the 60 Gy in 30 daily fractions which the plaintiff had received from Dr Fay.
  1. [132]
    I note that the defendants expressly advanced two related points in support of the proposition that, well prior to the receipt of the report of Dr Pendlebury, the plaintiff knew of the material facts of a decisive character.  Those contentions were as follows.
  1. [133]
    The first point was that the matters arising from Dr Pendlebury’s report, which are alleged to be material facts of a decisive character, were already known to the plaintiff by 2017.  It was submitted that the evidence that flowed from that knowledge is what is found in Dr Pendlebury’s report, and not the knowledge itself.  
  1. [134]
    As a second but related point, it was submitted that Dr Pendlebury’s report is no more than a matter of evidence going to the facts that were already known.  In support of this second point, it was submitted that there was no change in what had happened by way of treatment, there was no change in the plaintiff’s records, and there was no change in her condition beyond 2018, apart from the extra surgery undertaken in Canberra.
  1. [135]
    I do not accept either of the two points submitted by the defendants.  Knowledge by a plaintiff that particular actions caused particular injuries is but one part of the material facts of a decisive character which formulate a cause of action.  There is a recognised distinction between the knowledge that someone has caused an injury and the knowledge of an underlying material fact which would suggest a finding that the person has caused it negligently or breached a duty of care.  As previously identified, this distinction is a fundamental one. Such facts will be regarded as being 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 that an action would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action, and that he or she ought, in his or her own interests, to bring an action.[31] 
  1. [136]
    What the report of Dr Pendlebury did was identify material facts which were of a decisive character in the sense discussed above.  The new facts identified that the particular average dosage of 60 Gy was beyond the accepted treatment standard both nationally and internationally as recorded in then-published international literature in the oncology field.  The dosage level of 60 Gy compared to the then appropriate standard of 56 Gy resulted in an exponential increase in risk for the very injury suffered in this case, namely moving from a 1 - 2 per cent risk to 20 - 30 per cent risk.  It was these additional facts which were not known by the plaintiff.  
  1. [137]
    The new facts, in combination with the known facts, supported that there were actions which would have reasonable prospects of success and which could reasonably be regarded as ones which would result in an award of damages sufficient to justify the bringing of an action, such that after the receipt of the report she ought, in her own interests, to bring an action.[32] This is not a case where the “critical mass of information” up until the date of the report of Dr Pendlebury provided the plaintiff with such knowledge.
  1. [138]
    The particular facts contained in the report of Dr Pendlebury had not been identified by any of the other specialists which the plaintiff had gone to, or come into contact with, prior to the delivery of the said report on 26 February 2020.
  1. [139]
    Whilst there are some obtuse statements in the response to the first OHO complaint about the possibility of the treating doctor having consulted with a Management Treatment team and, as a result, possibly having used a lower dosage, the ultimate conclusion of the specialist who authored that response was to the effect that the plaintiff had received treatment described as being “excellent service from Queensland Health”.  The specialist in that case also opined in respect of the health services received that the “standard of care was very high, particularly as far as the allied health service was concerned.” I do not regard the content of that report as having disclosed the facts of a decisive character contained in the report of Dr Pendlebury.
  1. [140]
    Whilst the plaintiff had a suspicion about inappropriate radiation dosage and targeting of the sacrum, that suspicion was not knowledge of such facts.  The plaintiff was not a medical doctor, and multiple relevant specialists in the treating area had failed to provide opinions to support the existence of such facts.  
  1. [141]
    In AB v State of Queensland,[33] McMurdo JA discussed the concept of a suspicion compared to a belief by reference to George v Rockett,[34] where it was said: “Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”[35]
  1. [142]
    Using the same authority cited by McMurdo JA, I note that a suspicion was described in the following terms: “A suspicion that something exists is more than a mere  wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’…”[36]  
  1. [143]
    I note that the discussion of belief and suspicion in George v Rockett[37] was in an entirely different context to the LAA. The relevant question in the LAA deals with the issue of knowledge. Nonetheless, I am of the view and have found that the subjective state of the plaintiff’s mind prior to the Dr Pendlebury report is more accurately described as suspicion rather than a belief. The facts in the chronology are consistent with the plaintiff suspecting that something was wrong or that there may have been a mistake in the administration of the volume of the radiation and the targeting of the sacrum, but that suspicion did not have a real evidentiary basis to support it.
  1. [144]
    Even if I were incorrect, and the suspicion amounted to a belief by the plaintiff (in the sense used by McMurdo JA), it would have been a belief which fell well short of knowledge of the fact that too large a dose over too broad an area had been inappropriately administered.  
  1. [145]
    Further, the suspicion, or such a belief,[38] was not founded on any expert opinion. The mere holding of this state of mind by the plaintiff as a lay person was not admissible evidence of the underlying truth of the facts which were suspected or believed.  The suspicion, or such a belief, could not have supported a person in the plaintiff’s particular circumstances forming a view that they had an action with a reasonable prospect of success, and which could reasonably be regarded as one which would result in an award of damages sufficient to justify the bringing of an action. The material fact of a decisive character can include (and in this case does) the fact that there was admissible expert evidence to support the claim beyond the mere inadmissible suspicion or belief.[39] That is particularly so where the material facts of a decisive character are very much in the realm of expert knowledge or opinion, as is the case here.
  1. [146]
    I appreciate that where the decisive facts are of a non-observable character, the question of whether knowledge can be said to occur is a more difficult proposition.  Here, of course, the plaintiff, as a lay woman, held the suspicion in the face of a variety of specialists who failed to support the underlying facts which were suspected.  The evidence does not establish, in my view, that the plaintiff knew that too much radiation had been inappropriately delivered over too large an area.
  1. Were the material facts of a decisive character within the means of knowledge of the plaintiff
  1. [147]
    As discussed in the applicable legal principles, whether a particular applicant has taken reasonable steps to ascertain the relevant material fact is a question to be considered in the context of the background and circumstances of the particular applicant.  Section 30(1)(c)(ii) of the LAA focusses on whether the particular applicant, in the circumstances which he or she found him or herself in at the relevant  time, has taken all reasonable steps to find out the fact prior to the expiry of the 12 months before the commencement of the proceeding. Here, the critical material facts of a decisive character were ones which were only revealed with the assistance of expert opinion in the oncology field.  
  1. [148]
    It is perhaps best to break up the relevant periods in order to determine whether the plaintiff in this case had taken all such reasonable steps.
  1. (i)
    The period up to 16 February 2018
  1. [149]
    The chronology set out above supports that for the relevant period up to February 2018, the plaintiff had taken all reasonable steps to find out whether the dosage of radiation she had received in the TomoTherapy treatment was inappropriately too high and whether it was delivered inappropriately over too great an area. She had consulted with and sought out a number of specialist practitioners. She had undertaken her own research as best she could. She had twice complained to the OHO.  Whilst the plaintiff had a suspicion that something may have been wrong or that there may have been a mistake, she had not uncovered facts which supported that suspicion.  She had acted doggedly in those inquiries to no avail.
  1. [150]
    I find that during this period, the plaintiff had taken all reasonable steps to find out the material facts of a decisive character, and that those facts were not within the means of knowledge of the plaintiff during this particular period.
  1. (ii)
    The period 16 February 2018 - 25 June 2018
  1. [151]
    It is this period which provides the best candidate for arguing that the plaintiff had failed to take all reasonable steps to find out the material facts of a decisive character.  By 16 February 2018, the plaintiff had a broad offer from the firm Slater and Gordon to act on a 'no-win, no-fee' basis.  That was in respect of their legal fees and at least some undefined amount of disbursements.  
  1. [152]
    By 7 March 2018, as a result of further inquiries made by the plaintiff with Slater and Gordon, it was clear that two options were provided by that firm for the meeting of disbursements which were not the subject of the 'no-win, no-fee' offer. Those disbursement costs included at least the cost of obtaining medical opinion evidence.  The first option was the payment of $3,000 by the plaintiff with a flagged likelihood of further future contributions at a later stage.  The second option was a $10,000 loan, which generally only had to be repaid if the claim was ultimately successful. For that second option, the repayment obligation would not generally exceed any amount recovered.
  1. [153]
    I do not accept the plaintiff’s initial explanation that she baulked at the offer by Slater and Gordon because she was required to pay $3,000 into the trust account. The contemporaneous documents show this was but one option and the second option had been explained.  
  1. [154]
    The plaintiff’s separate explanation, given in answers during cross-examination in respect of the $10,000 loan, was ultimately that she did not like to incur debt. This did not seem to be a remark which clearly explained why this option was unattractive. As part of the cross-examination, the plaintiff acknowledged that she knew at the relevant time that the proposed loan amount only had to be repaid if the claim was successful, and then up to the amount of claim.  
  1. [155]
    Despite not accepting the Slater and Gordon offer, I find that the plaintiff nonetheless still took all reasonable steps to find out the material facts at this point.
  1. [156]
    The evidence reveals that in the second quarter of 2018, the plaintiff was looking at two firms to represent her. She ultimately went with the firm identified by her as being a not-for-profit firm. The evidence establishes that she was exploring the provision of funding through Legal Aid, at least for the purposes of an extension of time limit application.  By 2 May 2018 at the latest, the plaintiff had retained that other firm, Revolution Law.  That firm had started the process of giving an Initial Notice for a claim in accordance with s 9A of the PIPA and were actively seeking the medical records associated with the plaintiff’s injuries incurred by way of the receipt of the TomoTherapy treatment.
  1. [157]
    The circumstances of an individual applicant, at a particular time, may contemplate that more than one reasonable course of conduct was open.
  1. [158]
    With the benefit of hindsight, it might be said that had the plaintiff had accepted Slater and Gordon’s offer in March 2018, then she may well have learnt of the material facts of a decisive character set out in the report of Dr Pendlebury at a time prior to the 12 month period before the commencement of this proceeding. The prospect is hypothetical, but I note the plaintiff’s current solicitors were able to obtain Dr Pendlebury’s first report in approximately nine months. However, it is wrong to approach the relevant statutory question by a process which uses the benefit of hindsight.[40]
  1. [159]
    The actions of the plaintiff in retaining a set of solicitors described as not-for-profit and seeking to pursue Legal Aid, over an offer from another set of solicitors in the form of a significantly conditioned 'no-win, no-fee' agreement, cannot be said to amount to a failure to take all reasonable steps. It was not unreasonable for the plaintiff to look at more than one firm to represent her. The plaintiff’s actions ultimately included the retaining of a set of solicitors to assist in exploring the prospect of making a claim.    
  1. [160]
    It is obvious that the plaintiff was in a poor financial situation in 2018.  This acutely manifested towards the end of 2018, but I draw the inference that a difficult financial position existed at an earlier stage. The plaintiff had been suffering from her underlying medical condition and then her injuries associated with the necrosis of her sacrum for a number of years. One of the letters from the OHO had referred to the financial toll it had taken on her.  In the circumstances in which the plaintiff found herself at this time, it is understandable that she was seeking to advance a claim at as little cost to herself as possible.
  1. [161]
    As it transpired, the plaintiff was not successful in her application for Legal Aid to fund an extension of time application.  Revolution Law then wanted some $15,000 to be paid into their trust account.
  1. [162]
    At the point when Revolution Law was seeking the monies in trust, and at a time when the Legal Aid application had failed, the plaintiff promptly tried to re-enliven the offer made by Slater and Gordon. This was only three and a-half months since that offer had been made, however Slater and Gordon had a change of heart and were not then prepared to re-make the offer to act on a 'no-win, no-fee' basis.  
  1. [163]
    Examining the relevant question from the position of the plaintiff in the circumstances which existed at the time, I am satisfied that the plaintiff had taken all reasonable steps to find out the material facts of a decisive character during this period.  The initial retention of Revolution Law over Slater and Gordon represented the plaintiff retaining solicitors with a view to seeking to explore a potential claim.  It was not unreasonable in the circumstances she found herself in to try and promote her claim in a way which had the least financial effect on her.  
  1. (iii)
    The period 25 June 2018 - 25 September 2018
  1. [164]
    During this period, the firm Revolution Law was retained and continued to be instructed to search out expert medical opinion. The evidence shows that the plaintiff appropriately followed up the solicitors who came up with at least three potential experts. The first two experts were ultimately not available to provide an opinion.  The third required the provision of $3,000 into the trust account of the firm in order to produce an initial oral opinion.
  1. [165]
    I accept that at the time of the identification of the third expert, Professor Fox, the plaintiff did not have sufficient funds to pay for that oral opinion.
  1. [166]
    The plaintiff continued to explore the possibility of her being represented by a firm on a 'no-win, no-fee' basis. In September 2018, Bennett & Philp Lawyers had declined to act on that basis.
  1. [167]
    I am satisfied that the evidence as summarised in the chronology for this period shows that the applicant had taken all reasonable steps to find out the material facts of a decisive character.
  1. (iv)
    The period 25 September 2018 - June 2019
  1. [168]
    After September 2018, the plaintiff had allowed the retainer with Revolution Law to effectively peter out.  I accept the plaintiff’s evidence that this occurred by reason of a combination of factors. First, the adverse financial predicament she then found herself in.  Secondly, the debilitating physical position which then existed as a result of the failure of the glue which had been used to repair the fractures in her sacrum.  At this point, the plaintiff had difficulty in standing and walking.  Thirdly, I accept that she was in a state of despair at this time, and that this was contributed to by the results of the prior medical advice she had been given by Revolution Law and the view which had been recently expressed by Bennett & Philp Lawyers in September 2018 that she had poor prospects.
  1. [169]
    This combination of factors, in my view, adequately explains why the plaintiff was not taking active steps during this period to obtain further medical evidence. 
  1. [170]
    The fact that in March 2019 the plaintiff sought the advice of lawyers in relation to family law matters does not alter my view. She and her former partner were in dire financial straits in circumstances where she was physically incapacitated.  She was facing the prospects of a division of their joint assets.  The fact she sought legal advice on those issues does not support a finding that she was failing to take all reasonable steps to find out the material facts of a decisive character.
  1. [171]
    I am satisfied overall that the plaintiff was taking all reasonable steps to find out the material facts of a decisive character. That test can be satisfied by periods of inactivity where the circumstances of the particular applicant support that it was reasonable for particular steps not to be taken.  During this period, the inactivity was both reasonable and explicable.
  1. [172]
    Accordingly, I am satisfied there was nothing in this period which would justify a finding that the plaintiff had not taken all reasonable steps to find out the material facts of a decisive character.
  1. (v)
    The period June 2019 - 26 February 2020
  1. [173]
    The current firm acting for the plaintiff was first consulted in June 2019.  It then took some eight months to ultimately locate Dr Pendlebury and obtain her report. There is effectively no complaint by the defendants that during this period the plaintiff had failed to take all reasonable steps to find out the material facts of a decisive character.
  1. [174]
    The affidavit material sets out in detail the steps which her current lawyers took in relation to investigating the claim and the obtaining of the report.  I am satisfied that throughout this period the plaintiff was taking all reasonable steps to find out the material facts of a decisive character.
  1. (vi)
    Conclusion
  1. [175]
    Accordingly, then, having examined the various sub-periods from when the TomoTherapy treatment occurred, up to the delivery of Dr Pendlebury’s report on 26 February 2020, I am satisfied, for the reasons previously articulated, that the plaintiff had taken all reasonable steps to find out the material facts of a decisive character ultimately contained in Dr Pendlebury’s report.
  1. [176]
    As a result of that finding, I also find that those material facts of a decisive character were not within the means of knowledge of the plaintiff at any time prior to the 12 months immediately preceding the institution of the proceeding.
  1. Evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation
  1. [177]
    As previously recorded, this particular element was conceded by the defendants. That was a proper concession.  There was before me evidence which was, prima facie, sufficient to establish the right of action, apart from a defence founded on the expiration of a period of limitation.  
  1. The exercise of the residual discretion
  1. [178]
    The findings that I have made above, namely:
  1. (a)
    that material facts of a decisive character relating to the right of action were not within the means of knowledge of the plaintiff until a date after the commencement of the year last preceding the commencement of the proceeding; and 
  1. (b)
    that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation, 
  1. results in the enlivening of the Court’s discretion under s 31(2) of the LAA.
  1. [179]
    The discretion must be exercised judiciously.
  1. [180]
    A leading authority on the exercise of this discretion is Brisbane South Regional Health Authority v Taylor.[41]
  1. [181]
    The defendants submit, and I accept, that the following general principles can be gleaned from the decision of Brisbane South Regional Health Authority v Taylor.[42] They are as follows:
  1. (a)
    significant prejudice to a respondent will militate against a favourable exercise of the discretion contained in s 31(2) of the LAA, notwithstanding the applicant has otherwise satisfied s 31;
  1. (b)
    the prejudice analysis does not involve a comparison of prejudice to the applicant and the respondent;
  1. (c)
    prejudice is established if a fair trial of the proceeding is unlikely;
  1. (d)
    the onus of establishing that a fair trial of the action is possible rests on the applicant for the extension of the limitation period;
  1. (e)
    the analysis of prejudice does not involve a comparison with the position the respondent would have been in before the expiry of the limitation period, even if that position would have been the same;
  1. (f)
    the time for measuring prejudice is at the time of the application; and
  1. (g)
    the fact that witnesses may not have had any recollection of events anyway just prior to the limitation period expiring will not assist the applicant.
  1. [182]
    In this case, the defendants do not identify any specific prejudice relevant to the present application.  They note that at the time of the application being brought, the events had occurred more than 10 years ago.  What they point to is the inevitable diminishing of recollections that such a period will have had on recollections.  It is submitted that this type of prejudice will impermissibly diminish the ability of the defendants to receive a just and fair hearing.  It is said that in that respect the plaintiff will not have a discharged her onus of proof.
  1. [183]
    I do not accept that the quality of justice in this case has been eroded so that the defendants cannot receive a just and fair trial.  This case differs from that in Brisbane South Regional Health Authority v Taylor[43] in a number of respects.   
  1. [184]
    First, there is no ambiguity about the doses and the occurrence of the delivery of the radiation which was used.  Records were made and they have been kept in that respect.  
  1. [185]
    Secondly, whilst one of the causes of action is articulated as a failure to warn case, there was a multi-page consent form which was produced at the time of the TomoTherapy  treatment being delivered to the plaintiff.  That consent form was filled out and it is currently available to all parties.
  1. [186]
    Thirdly, the third defendant, Dr Fay, has not sworn an affidavit in this proceeding deposing to an inability to give evidence of a recollection of what he advised, or alternatively, a recollection of what his practice was (inevitable or otherwise) in respect of the provision of advice for this type of treatment.
  1. [187]
    Fourthly, the international literature relied upon for what the plaintiff says was the standard treatment at the relevant time exists as a matter of record.  No affidavit material has been put on to identify that the defendants will be unable to lead their own expert evidence as to the practices which existed for similar treatment at the relevant time.
  1. [188]
    Whilst there has been a passing of time, this is not a case where the mere passage of time is likely to have eroded the quality of justice such that it can be said that the defendants cannot receive a fair trial of the matter.
  1. [189]
    I will exercise my discretion in favour of the plaintiff and grant an extension of the limitation period.
  1. Form of orders
  1. [190]
    I will make orders broadly in the form which has been sought by the plaintiff. 
  1. [191]
    The first order will be for the substitution of the State of Queensland for the existing defendants.  That order of the Court will be that, pursuant to r 69(2)(a)(iii) of the Uniform Civil Procedure Rules 1999 (Qld), the State of Queensland be substituted in as the sole defendant in the proceeding in place of the Central Queensland Hospital and Health Service, being the first defendant, Metro North Hospital and Health Service, being the second defendant, and Michael Fay, being the third defendant.
  1. [192]
    The second order of the Court will be that, pursuant to s 31 of the Limitation of Actions Act 1974 (Qld), time is extended to 26 February 2021 for the plaintiff to start a proceeding in court against the State of Queensland for personal injuries she suffered as a consequence of the medical treatment, management and advice she received at, and alternatively, from the Rockhampton Base Hospital and the Royal Brisbane and Women’s Hospital from about June 2011 to about March 2012. 
  1. [193]
    I will hear the parties on costs.

Footnotes

[1]  This is a medical description of the bone dying.

[2]  The third defendant.

[3]  The first defendant and second defendant.

[4]  (1984) 154 CLR 234 at 256.

[5]  Quoted by Thomas JA with approval in Dick v University of Queensland [2000] 2 Qd R 476 at [26].

[6] Dick v University of Queensland [2000] 2 Qd R 476 at 483 at [18] per Thomas JA.

[7] Dick v University of Queensland [2000] 2 Qd R 476 at 483 at [19] per Thomas JA by reference to s 30(1)(a)(i) of the LAA.

[8] Dick v University of Queensland [2000] 2 Qd R 476 at 484 at [19] per Thomas JA.

[9] Dick v University of Queensland [2000] 2 Qd R 476 at 484 at [20] per Thomas JA.

[10]  [1988] 2 Qd R 325 at 333.

[11]  Cited with apparent approval in Berg v Kruger Enterprises (Division of Besser Qld Limited) Ltd [1990] 2 Qd R 301 at 305 by Connolly J with whom the other members agreed.

[12]  [2008] 2 Qd R 219.

[13] Castillon v P&O Ports Limited (No. 2) [2008] 2 Qd R 219 at 231.

[14]  [2007] QCA 327.

[15]  [1993] QCA 210 at 4-5.

[16] Castlemaine Perkins Limited v McPhee [1979] Qd R 469 at 473E per Connolly J, with whom the other members agreed; Randel v Brisbane City Council [1984] 2 Qd R 276 at 278 per McPherson JA (with whom Andrews SPJ agreed) and at 285 per Thomas JA.

[17]  [2005] QCA 110 at [29].

[18] Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [43] per McMurdo J, with whom Holmes J agreed.

[19] Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [43] per McMurdo J, with whom Holmes J agreed.

[20]  The plaintiff held a Bachelor of Science majoring in Chemistry and Biology, and a PhD in Coral Ecology, both from James Cook University.

[21]  I say ‘generally’ as the official agreement contains exceptions, for example, in certain forms of termination of the agreement.

[22]  Including the plaintiff’s prior solicitors’ files.

[23]  See the observations of Mullins JA (as her Honour then was) at [80], with whom the other members of the Court agreed) at [1] and [83].

[24]  See also T1-43 ll 25-47.

[25]  T1-32 l 10.

[26]  T1-32 ll 13-15.

[27]  T1-37 ll 1-17.

[28]  T2-40 ll 1-46 - T2-41 ll 1-50.

[29]  This is a reference to a solicitor at Revolution Law.

[30]  This is a reference to Denis Kearney at Noosa Family Law.

[31] Dick v University of Queensland [2000] 2 Qd R 476 at [14] onwards.

[32] Dick v University of Queensland [2000] 2 Qd R 476 at [14] onwards.

[33]  (2022) 11 QR 51.

[34]  (1990) 170 CLR 104 at 116.

[35] AB v State of Queensland (2022) 11 QR 51 at [42] per McMurdo J.

[36] George v Rockett (1990) 170 CLR 104 at 115.

[37]  (1990) 170 CLR 104.

[38]  Assuming that I am wrong on the suspicion finding.

[39] Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [47]-[50] per McMurdo J with whom Holmes J (as her Honour then was) agreed at [26].

[40] Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [53] per McMurdo J.

[41]  (1996) 186 CLR 541.

[42]  (1996) 186 CLR 541.

[43]  (1996) 186 CLR 541.

Close

Editorial Notes

  • Published Case Name:

    Jones v Central Queensland Hospital and Health Service

  • Shortened Case Name:

    Jones v Central Queensland Hospital and Health Service

  • MNC:

    [2024] QSC 165

  • Court:

    QSC

  • Judge(s):

    Sullivan J

  • Date:

    08 Aug 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AB v State of Queensland(2022) 11 QR 51; [2022] QCA 109
3 citations
Jump To
Cite 1 - (2022) 11 QR 51
Cite 2 - (2022) 11 QR 51
Cite 3 - (2022) 11 QR 51
Berg v Kruger Enterprises (Division of Besser Qld Ltd) Ltd[1990] 2 Qd R 301; [1989] QSCFC 34
2 citations
Jump To
Cite 1 - [1990] 2 Qd R 301
Cite 2 - [1990] 2 Qd R 301
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
4 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Cite 4 - (1996) 186 CLR 541
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
3 citations
Jump To
Cite 1 - [2008] 2 Qd R 219
Cite 2 - [2008] 2 Qd R 219
Cite 3 - [2008] 2 Qd R 219
Castlemaine Perkins Ltd v McPhee [1979] Qd R 469
2 citations
Jump To
Cite 1 - [1979] Qd R 469
Cite 2 - [1979] Qd R 469
George v Rockett (1990) 170 CLR 104
4 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
Cite 3 - (1990) 170 CLR 104
Cite 4 - (1990) 170 CLR 104
Greenhalgh v Bacas Training Ltd [2007] QCA 327
2 citations
Jump To
Cite 1 - [2007] QCA 327
Cite 2 - [2007] QCA 327
Healy v Femdale Pty Ltd [1993] QCA 210
2 citations
Jump To
Cite 1 - [1993] QCA 210
Cite 2 - [1993] QCA 210
Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)(2022) 11 QR 882; [2022] QCA 189
2 citations
Jump To
Cite 1 - [2022] QCA 189
Cite 2 - [2022] QCA 189
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 325
Cite 2 - [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
2 citations
Jump To
Cite 1 - [2005] QCA 110
Cite 2 - [2005] QCA 110
Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112
5 citations
Jump To
Cite 1 - [2006] QCA 112
Cite 2 - [2006] QCA 112
Cite 3 - [2006] QCA 112
Cite 4 - [2006] QCA 112
Cite 5 - [2006] QCA 112
Randel v Brisbane City Council [1984] 2 Qd R 276
2 citations
Jump To
Cite 1 - [1984] 2 Qd R 276
Cite 2 - [1984] 2 Qd R 276
University of Queensland v Dick[2000] 2 Qd R 476; [1999] QCA 474
8 citations
Jump To
Cite 1 - [2000] 2 Qd R 476
Cite 2 - [2000] 2 Qd R 476
Cite 3 - [2000] 2 Qd R 476
Cite 4 - [2000] 2 Qd R 476
Cite 5 - [2000] 2 Qd R 476
Cite 6 - [2000] 2 Qd R 476
Cite 7 - [2000] 2 Qd R 476
Cite 8 - [2000] 2 Qd R 476

Cases Citing

Case NameFull CitationFrequency
AZX v Roman Catholic Trust Corporation for the Diocese of Townsville [2025] QSC 59 1 citation
1

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