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Ryan v Gold Coast Hospital and Health Service[2025] QSC 181

Ryan v Gold Coast Hospital and Health Service[2025] QSC 181

SUPREME COURT OF QUEENSLAND

CITATION:

Ryan v Gold Coast Hospital and Health Service [2025] QSC 181

PARTIES:

TRENT RYAN

(Plaintiff)

v

GOLD COAST HOSPITAL AND HEALTH SERVICE

(Defendant)

FILE NO/S:

BS5940/22

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2025

JUDGE:

Smith J

ORDER:

  1. Pursuant section 31(1) of the Limitation of Actions Act 1974 (Qld) the limitation period for the plaintiff’s actions in negligence is extended until 11 February 2018.
  2. Pursuant to section 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) I order that the plaintiff had until and including 5 March 2018 to file his claim.  
  3. I declare the proceedings to be validly instituted.  
  4. Pursuant to rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) the plaintiff is granted leave to have made all the amendments since the notice of claim was served under Personal Injuries Proceedings Act 2002 (Qld).
  5. Pursuant to rule 382(1) of the Uniform Civil Procedure Rules 1999 (Qld) the plaintiff is granted leave to have filed the amended reply without distinguishing amendments in the reply.
  6. The defendant’s application filed 29 April 2025 is dismissed.
  7. I order that the costs of and incidental to all applications are costs in the cause. 

CATCHWORDS:

LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTES OF LIMITATION GENERALLY – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – where the plaintiff underwent surgery in 2014 – where he continued to have ongoing abdominal problems – where an expert surgeon advised him that the operating surgeon and the defendant were negligent for failing to warn him of the risks of the operation – whether material fact of a decisive character is established

PROCEDURE – PERSONAL INJURIES CLAIMS – where a complying notice of claim was served in August 2017 after the expiry of the original limitation period but within the extended limitation period – where proceedings were issued in March 2018 – whether those proceedings are valid

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – where the plaintiff has applied under rule 376 UCPR for leave to add causes of action under the Australian Consumer Law – whether the causes of action arise out of the same facts or substantially the same facts already claimed

Acts Interpretation Act 1954 (Qld) Schedule 1

Australian Consumer Law ss 4, 18, 60, 236

Civil Liability Act 2003 (Qld) ss 21, 22

Civil Proceedings Act 2011 (Qld) Schedule 1 

Competition and Consumer Act 2010 (Cth) s 87F

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

Personal Injuries Proceedings Act 2002 (Qld) ss 43, 59   

Uniform Civil Procedure Rules 1999 (Qld) rr 4, 376, sch 3

Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; (2015) 324 ALR 355, cited

BEK v BEL [2024] QCA 154, applied 

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, applied

Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd [2024] QSC 285, applied

Draney v Barry [1999] QCA 491; [2002] 1 Qd R 145, cited

Evolution 70 Little Edwards Pty Ltd v Maturu Group Pty Ltd [2023] QDC 81, considered

GU v TO [2005] QCA 480, applied

Haley v Roma Town Council [2005] QCA 3; [2005] 1 Qd R 478, applied

Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2022] QCA 189, (2022) 11 QR 882, cited

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, cited

Thompson v Natawala [2021] WADC 33, applied 

COUNSEL:

Mr S Ogden for the plaintiff

Mr M Hickey OAM KC with Ms K Riedel for the defendant

SOLICITORS:

AKC Legal for the plaintiff

Minter Ellison for the defendant

Introduction

  1. [1]
    The plaintiff has applied for an extension of the limitation period by 12 months under s 31(1) Limitation of Actions Act 1974 (Qld) (LAA); leave to extend time under s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA); and leave to amend his statement of claim to plead breaches of the Competition and Consumer Act 2010 (Cth) sch 2 (ACL).
  2. [2]
    The defendant has taken the reasonable position, consistent with its obligations of a model litigant, of neither consenting to nor opposing the orders sought, except the order as to costs.
  3. [3]
    It is common ground that I should dismiss the defendant’s application filed 29 April 2025.

Background

  1. [4]
    Mr Ryan was born on 11 May 1979. He is 46 years of age.
  2. [5]
    On 1 April 2013, he experienced pain in the left side of his abdomen and consulted his general practitioner. He was diagnosed with diverticulitis and was referred to the defendant. He was admitted to the hospital between 15 and 19 April 2013 and treated with intravenous antibiotics under the care of Dr von Papen, a colorectal surgeon who worked for the defendant. He thereafter resumed work.
  3. [6]
    On 30 May 2013 Dr Walker, a gastroenterologist, conducted a colonoscopy and diagnosed sigmoid diverticular disease. The plaintiff was then referred back to Dr von Papen.
  4. [7]
    He continued to suffer recurrent abdominal pain and on 25 November 2013 he saw Dr von Papen who recommended he undergo a laparoscopic interior resection of the colon (the surgery).
  5. [8]
    He was told he would be able to return to work in six weeks.
  6. [9]
    On 11 February 2014, the plaintiff underwent the surgery.
  7. [10]
    Despite the surgery, he continued to suffer pain in his left iliac fossa. He saw Dr von Papen who told him the healing process was longer than anticipated. He was not able to return to work. Dr von Papen recommended a further operation in October 2014, and he underwent a laparoscopic division of the adhesions on 11 November 2014. He was subsequently referred to a chronic pain clinic because of continuing pain in the left lower abdominal quadrant. In November 2014 it is alleged Dr von Papen told the plaintiff that he thought that the doctor who carried out the earlier procedure may have damaged a nerve in the form of a neuroma.
  8. [11]
    On 16 March 2015, the plaintiff retained Mr Weller, a solicitor, to act for him. Mr Weller then began to gather together the medical evidence.
  9. [12]
    On 25 May 2016, Mr Weller wrote to Dr Michael Rochford, a consultant neurologist, requesting advice on the following matters:
  1. Whether there had been any failure to perform the operations with due care and skill.
  2. Whether there had been any failure to supervise other persons involved in the operation.
  3. Whether there had been any failure to provide appropriate post operative care.
  4. Whether or not there had been any failure to act in a manner which was widely accepted in Australia by peer professional opinion as competent professional practice.
  1. [13]
    On 15 July 2016 Dr Mellick, neurologist, provided his report (Mellick report). Dr Mellick referred to the history of the matter and noted that the plaintiff’s current status was intermittent bouts of fever, diarrhoea and vomiting, and this has continued since the surgery was performed in February 2014. He was on pain killing medication and had gained about 25 kilograms in weight since being unemployed. He referred to the various medical reports which had been obtained. On neurological examination, he found no evidence of thoracic nerve disorder resulting in referred pain into the left lower abdominal quadrant. He did not identify local abnormalities pointing to the presence of a traumatically based neuroma in the abdominal wall. There was no evidence establishing the presence of neural entrapment syndrome, as suggested by Dr Grice. He was unable to establish that the pain was a consequence of the failure to perform the operations with due care and skill. He was unable to establish evidence for a statement that the nerve injury resulted from a procedure undertaken by a registrar. There was a connection between the surgery and occurrence of pain.
  2. [14]
    The report was forwarded to the plaintiff for discussion on 21 July 2016.
  3. [15]
    On 4 August 2016 Mr Weller wrote to Dr Conrad, a surgeon, asking the same questions. Dr Conrad provided his report dated 5 September 2016 (first Conrad report). Dr Conrad noted the plaintiff continued to have ongoing, constant pain in the left iliac fossa. He had been taking very heavy pain medication, was unable to return to work and was on a disability pension.
  4. [16]
    In Dr Conrad’s opinion, the plaintiff presented with acute recurrent sigmoid diverticulitis which was treated by intravenous antibiotics for the initial flare up in April 2013. When he was advised to undergo the laparoscopic resection, he had no communication with Dr von Papen, but with two registrars. The registrars did not discuss the complications or magnitude of the operation. While a printed list of complications was given to him, the plaintiff does not recall them discussing the possibility of damage to a cutaneous nerve causing chronic pain. There was no discussion of the alternative of continuing conservative treatment with antibiotics. It was Dr Conrad’s view that the Doctors did not act in a manner widely accepted in Australia as competent professional practice.
  5. [17]
    He said:

“The reason for this departure from accepted practice was that Mr Ryan was not properly warned of the dangers and complications of anterior resection of the sigmoid rectum for chronic diverticulitis. This is a very major procedure and has a relatively signification complication rate. It is my view that it is absolutely mandatory for a surgeon or surgeons to adequately consent a patient, carefully verbally, as well as in writing outlining all of the possible significant complications. These complications can be anastomotic leakage, adhesions and certainly injury of a peripheral nerve should be mentioned.”

  1. [18]
    It was very important for the surgeons to offer conservative treatment.
  2. [19]
    It is quite likely had the plaintiff been given proper explanation of the magnitude of the operation and possible complication rates he would have elected to have ongoing conservative treatment.
  3. [20]
    As a result of the operation, he has been left with chronic neurology pain which is resistant to conservative treatment. Dr Conrad agreed with Dr Grice that the plaintiff  should be provided with a chronic nerve stimulator. His prognosis for recovery is extremely poor.
  4. [21]
    The report was forwarded to Mr Ryan on 6 September 2016.
  5. [22]
    The evidence reveals that on 9 February 2017 the plaintiff served an initial notice pursuant to s 9A of PIPA on the defendant. On 1 March 2017 he served a part one notice of claim on Crown Law which was supported by the first Conrad report.
  6. [23]
    A further report from Dr Conrad (second Conrad report) and a statutory declaration was served on the defendant on 6 August 2017. The defendant sent a compliance letter on 5 September 2017.
  7. [24]
    On 5 March 2018, the plaintiff obtained leave pursuant to s 43(1) of PIPA to commence urgent proceedings in the District Court despite non-compliance with PIPA. The rights of the defendant under the LAA were reserved.
  8. [25]
    On 5 March 2018, he filed his claim in the District Court and on 1 April 2022 he applied to the Supreme Court to transfer the proceedings to the Supreme Court.
  9. [26]
    It is common ground that under s 11(1) of the LAA, the limitation period for actions for personal injury is three years. The procedure was undertaken on 11 February 2014 hence the expiry of the period was 11 February 2017.
  10. [27]
    Mr Ryan commenced his claim by notice of claim on 1 March 2017, just outside of the limitation period.
  11. [28]
    The first issue to be determined is whether to extend the limitation period pursuant to s 31 of the LAA.
  12. [29]
    The second issue to be determined is whether an order should be made under s 59(2)(b) of PIPA.
  13. [30]
    The third issue is whether the plaintiff should be given leave to add a cause of action pleading breaches of the ACL. 
  14. [31]
    The final issue is one of costs.

Limitation of Actions

Plaintiff’s submissions

  1. [32]
    The plaintiff submits that the evidence contained in the first Conrad report was a material fact of a decisive character and was not within the means of knowledge of the plaintiff before 8 September 2016. It is submitted that the plaintiff took reasonable steps to find out about the material fact in the first Conrad report before he received it. He instructed solicitors within about a year of the procedure and took steps to address his pain.
  2. [33]
    It was not unreasonable for the solicitor to conduct further investigations before obtaining the Mellick and (first) Conrad reports.
  3. [34]
    The notice of claim was filed on 1 March 2017 which was only six months after the first Conrad report.
  4. [35]
    In the circumstances, an order should be made extending the limitation period.

Discussion

  1. [36]
    Sections 30 and 31 of the LAA provides:
  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—the person has taken all reasonable steps to find out the fact before that time.
  1. (2)
    In this section—
  1. 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. 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 applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
  1. (b)
    that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
  1. the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
  1. (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. [37]
    The first question here is whether a material fact of a decisive character was not within the means of knowledge of the plaintiff until after 10 February 2016.
  2. [38]
    The second question is whether there is evidence to establish a right of action.
  3. [39]
    In BEK v BEL[1] it was said that:
  1. Ignorance of a material fact means the plaintiff lacked knowledge of some material fact of proof of which this case depended on either entirely or for a worthwhile result [56].
  2. Material facts relating to a right of action are capable of embracing factors beyond those which comprise the bare and essential ingredients of a given cause of action [57].
  3. The legislation is remedial legislation and should be interpreted liberally [61].
  4. Material facts may include the consequences of the injury [61].
  5. Evidence itself can be a material fact [64].
  6. A material fact may include a medical report [66].[2]
  7. The definition in s 30 of the LAA is an inclusive one [73].
  1. [40]
    It must be appreciated that sometimes proof in a medical negligence case is not easy to obtain. It has been the experience of the courts that sometimes it is difficult for a plaintiff to obtain expert medical evidence on the question of liability. In those circumstances, the obtaining of an expert report which supports the allegation of negligence against medical practitioners is an important piece of evidence in such cases.
  2. [41]
    In this case, I am satisfied that the first Conrad report was a material fact of a decisive character. For the first time the plaintiff was advised that the failure to warn him of the risks of the operation was negligent. This goes to the heart of his action.
  3. [42]
    In my respectful opinion, this was a crucial fact to be considered. In my opinion he had taken appropriate advice prior to this point and had not unnecessarily delayed matters. He had contacted Mr Weller in March 2015. It no doubt took Mr Weller some time to obtain a number of documents before seeking expert evidence, including:
    1. The medical records of the defendant.
    2. The reports of Dr von Papen dated 2 October 2014 and 23 November 2015.
    3. The reports of Dr Grice between 21 May 2015 and 2 December 2015.
  4. [43]
    Once he had obtained this material, he sought expert opinions in May and August of 2016. That does not seem unreasonable to me.
  5. [44]
    I consider reasonable steps had been taken to obtain the evidence before 8 September 2016 and appropriate advice was given.
  6. [45]
    In the circumstances, I am satisfied that the plaintiff has established that which he needs to under s 31(2)(a) of the LAA.
  7. [46]
    I also consider there is evidence to establish a right of action. The first Conrad report clearly raises a failure to warn case.[3] On the evidence there seem to be significant risks with this kind of surgery and clear warnings are needed prior to obtaining consent. The allegation is that these warnings were not given appropriately, and Dr Conrad considered this failure to be below the appropriate standard of medical practice at that time.[4]
  8. [47]
    There are the considerations relevant to the discretion mentioned in Brisbane South Regional Health Authority v Taylor. [5] In my view, as the notice of claim together with relevant medical evidence was served in 2017, it cannot be said that there is prejudice because of delay. Instructions could be taken early on to be able to place the defendant in a position to adequately defend the case.   
  9. [48]
    Accordingly, I am satisfied there is a right of action available to the plaintiff here.
  10. [49]
    In the circumstances, I am satisfied I should extend the limitation period for a period of 12 months.

Section 59 of PIPA

  1. [50]
    Section 59 of PIPA provides:
  1. “59
    Alteration of period of limitation
  1. (1)
    If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.
  1. (2)
    However, the proceeding may be started after the end of the period of limitation only if it is started within—
  1. (a)
    6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or
  1. (b)
    a longer period allowed by the court.
  1. (3)
    Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1 , the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.
  1. (4)
    If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.”
  1. [51]
    In Haley v Roma Town Council[6] it was said that nothing in s 59 of PIPA requires the application to be made within the limitation period. The section empowers the court with a wide discretion to make orders to prevent injustice by enabling a claimant who has given a complying notice of claim within the limitation period to commence proceedings outside the limitation period. The court, however, must be cognisant of the purpose of the Act and the considerations mentioned in Brisbane South Regional Health Authority v Taylor.[7]
  2. [52]
    It is argued by the plaintiff that the grant of leave under s 43 of PIPA implies that an order was made under s 59(2)(b), extending the time. The order in its terms does not state this and it would, in my view, be prudent for an applicant to make an application for an order under that section also.
  3. [53]
    I think the safest course is to make an order under s 59(2)(b) of PIPA to make it clear that the leave was in fact granted, as the matter goes to one of jurisdiction. Indeed, in GU v TO[8], McMurdo P noted that the court has the power to make an order effective from the date on which it was originally sought in the exercise of its inherent jurisdiction.    
  4. [54]
    In this case I am satisfied on the evidence that:
    1. A complying notice of claim was given at the latest by 15 August 2017.
    2. I am satisfied that this complying notice was served within the limitation period by reason of s 59(4) of PIPA, that is before 7 September 2017.
    3. I am satisfied that I should give leave under s 59(2)(b) to allow the plaintiff until 5 March 2018 to commence his claim.
    4. The plaintiff did commence the proceedings on 5 March 2018.
    5. I am satisfied that in light of the early notice of this matter, there is no prejudice to be suffered by the defendant.
    6. I am satisfied I should declare that his proceedings have been validly commenced.     

Breaches of the ACL

  1. [55]
    I now turn to the issue of the plaintiff’s application to include causes of action for breaches of the ACL. It is common ground these causes of action are subject to a six year limitation period by reason of s 236 of the ACL.[9]
  2. [56]
    The plaintiff submits the ACL claims are essentially the same as the negligence claims. It is submitted that despite the expiration of the limitation period under rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the court has a general discretion to add these causes of action as they arise from the same facts already pleaded.
  3. [57]
    Section 18 of the ACL provides:
  1. “18
    Misleading or deceptive conduct
  1. (1)
    A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
  1. [58]
    Section 4 of the ACL provides:
  1. “4
       Misleading representations with respect to future matters
  1. (1)
    If:
  1. (a)
    a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and
  1. (b)
    the person does not have reasonable grounds for making the representation;
  1. the representation is taken, for the purposes of this Schedule, to be misleading.
  1. (2)
    For the purposes of applying subsection  (1) in relation to a proceeding concerning a representation made with respect to a future matter by:
  1. (a)
    a party to the proceeding; or
  1. (b)
    any other person;
  1. the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.
  1. (3)
    To avoid doubt, subsection (2) does not:
  1. (a)
    have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or
  1. (b)
    have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.
  1. (4)
    Subsection   (1) does not limit by implication the meaning of a reference in this Schedule to:
  1. (a)
    a misleading representation; or
  1. (b)
    a representation that is misleading in a material particular; or
  1. (c)
    conduct that is misleading or is likely or liable to mislead;
  1. and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.”
  1. [59]
    Section 60 of the ACL provides:
  1. “60
    Guarantee as to due care and skill
  1. (1)
    If:
  1. (a)
    a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.”
  1. [60]
    It seems  clear that a plaintiff may bring an action for medical negligence based on the ACL provisions.[10]   
  2. [61]
    Rule 376 (4) of the UCPR provides:
  1. “The court may give leave to make an amendment to include a new  cause of action only if—
  1. (a)
    the court considers it appropriate; and
  1. (b)
    the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.”
  1. [62]
    The court has a wide discretion to make an order under this rule.[11] It is also to be noted that if a defendant is on notice of the substance of the allegations to be relied on before the expiry of the limitation period, then it is hard to see why there is an injustice in permitting the cause of action to be litigated.[12] 
  2. [63]
    In Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd[13] Kelly J said at paragraph 4: 
  1. “[4]
    The inquiry as to whether a new cause of action arises out of the same facts or substantially the same facts is directed to ascertaining whether the factual basis for the new cause of action is substantially different from that previously pleaded. The inquiry requires an understanding of the substantive facts underpinning the existing and the new causes of action. The existing and proposed pleaded facts will form the basis for the judgment on the question of degree posed by the word “substantially”.”(footnotes omitted)
  1. [64]
    It is argued by the plaintiff that the original claim to which the court must have regard is the notice of claim. I am not convinced this is the case. This is because the term “proceeding” to my mind connotes an action in court. The definition of the term “proceeding” in the UCPR is not of assistance as that relates to offers to settle.[14] Rule 4(2) brings in definitions from the Civil Proceedings Act 2011 (Qld). The definition of “proceeding” is schedule 1 is:
  1. “proceeding means a proceeding in a court (whether or not between parties), and includes—
  1. (a)
    an incidental proceeding in the course of, or in connection with, a proceeding; and
  1. (b)
    an appeal or stated case.”
  1. [65]
    I also note the term “proceeding” is defined in the Acts Interpretation Act 1954 (Qld)[15] as “means a legal or other action or proceeding.”
  2. [66]
    The original claim from March 2018 simply claimed “damages.” Arguably, that was deficient. However, in the original statement of claim the basic facts were pleaded which gave rise to an allegation for breach of contract, negligence and misleading or deceptive conduct. I consider these facts sufficiently encompass breaches of ss 18 and 60 of the ACL.
  3. [67]
    On 25 October 2022, an amended statement of claim was delivered alleging the plaintiff was a consumer as defined and further alleging that under s 60 of the ACL the defendant guaranteed that its services would be rendered with due care and skill and it was not to engage in misleading or deceptive conduct.  It was alleged that the defendant breached these sections. The allegations of breach rely on the same allegations as the failure to warn.
  4. [68]
    In my respectful view, when I consider the terms of the original statement of claim and the terms of the amended one, I consider that the requirements of r 376(4) have been established. I am satisfied that the new causes of action arise out of the same facts, or at least substantially out of the same facts as previously pleaded. It is a question of degree, but I am satisfied that the test has been fulfilled. In those circumstances, I prepare to make the amendments sought by the plaintiff.
  5. [69]
    If the plaintiff is correct in his assertion that the notice of claim is the proceeding, I am also satisfied this was broad enough to encompass the alleged breaches of the ACL.
  1. Costs
  1. [70]
    The plaintiff asked for his costs concerning the PIPA point. The defendant submitted that all costs be costs in the cause. I accept the defence submissions.
  2. [71]
    The plaintiff (through his former lawyers) has in my view been dilatory in the progress of these proceedings. This was so much so that in October 2024, the defendant was forced to bring an application that the matter be listed for trial. On my assessment, there was an ongoing and repeated failure by the plaintiff’s previous solicitor to meaningfully respond to correspondence from the defendant.[16]
  3. [72]
    The matter was then listed for a five-day trial commencing 12 May 2025. On 24 February 2025, the associate to Hindman J wished to know the plaintiff’s position concerning paragraph 59 of the defence (the limitation point). 
  4. [73]
    Reasonably, on 28 February 2025 the defendant wrote to the plaintiff noting the above correspondence and noting the defendant had repeatedly been raising the limitation issues since 2017 and that the plaintiff had taken no steps regarding the limitation point. It requested a response by 4 March 2025 as to the plaintiff’s intentions.
  5. [74]
    The plaintiff replied on 6 March 2025, not directly answering the defendant’s request.
  6. [75]
    Not surprisingly, the defendant brought an application to dismiss the plaintiff’s claim. In my view, the limitation point needed to be determined before a five-day trial, otherwise there would be many wasted costs.
  7. [76]
    The plaintiff has sought an indulgence from the court in seeking the extension of the limitation period, seeking regularisation of the proceedings and seeking to add the ACL claims. 
  8. [77]
    I consider the defendant’s position on costs to be a generous one. I propose to order that the costs be costs in the cause.  
  1. Orders
  1. [78]
    For the reasons given, I make the following orders:
  1. Pursuant section 31(1) of the Limitation of Actions Act 1974 (Qld) the limitation period for the plaintiff’s actions in negligence is extended until 11 February 2018.
  2. Pursuant to section 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) I order that the plaintiff had until and including 5 March 2018 to file his claim.
  3. I declare the proceedings to be validly instituted.  
  4. Pursuant to rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) the plaintiff is granted leave to have made all the amendments since the notice of claim was served under Personal Injuries Proceedings Act 2002 (Qld).
  5. Pursuant to rule 382(1) of the Uniform Civil Procedure Rules 1999 (Qld) the plaintiff is granted leave to have filed the amended reply without distinguishing amendments in the reply.
  6. The defendant’s application filed  29 April 2025  is dismissed.
  7. I order that costs of and incidental to all applications be costs in the cause.

Footnotes

[1][2024] QCA 154.

[2]Also see Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2022] QCA 189;(2022) 11 QR 882.

[3]Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.

[4]The report addresses the matters raised by sections 21 and 22 of the Civil Liability Act 2003 (Qld).  

[5][1996] HCA 25; (1996) 186 CLR 541

[6][2005] QCA 3; [2005] 1 Qd R 478 at [30]-[31].

[7][1996] HCA 25; (1996) 186 CLR 541.

[8][2005] QCA 480 at [13].

[9]I note that the three year time limit under section 87F of the Competition and Consumer Act 2010 (Cth) does not apply to breaches of ss 18 or 60 of the ACL– see Thompson v Natawala [2021] WADC 33 at [52]-[53].

[10]Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; (2015) 324 ALR 355 at [72].

[11]Draney v Barry [1999] QCA 491; [2002] 1 Qd R 145 at [57].

[12]Evolution 70 Little Edwards Pty Ltd v Maturu Group Pty Ltd [2023] QDC 81 at [53]. 

[13][2024] QSC 285.

[14]See schedule 3.

[15]See schedule 1.

[16]See paras 1-3 and 8-23 of court document 60.

Close

Editorial Notes

  • Published Case Name:

    Ryan v Gold Coast Hospital and Health Service

  • Shortened Case Name:

    Ryan v Gold Coast Hospital and Health Service

  • MNC:

    [2025] QSC 181

  • Court:

    QSC

  • Judge(s):

    Smith J

  • Date:

    07 Aug 2025

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
Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355
2 citations
Jump To
Cite 1 - (2015) 324 ALR 355
Cite 2 - (2015) 324 ALR 355
Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219
2 citations
Jump To
Cite 1 - [2015] NSWCA 219
Cite 2 - [2015] NSWCA 219
BEK v BEL [2024] QCA 154
2 citations
Jump To
Cite 1 - [2024] QCA 154
Cite 2 - [2024] QCA 154
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
3 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
3 citations
Jump To
Cite 1 - [1996] HCA 25
Cite 2 - [1996] HCA 25
Cite 3 - [1996] HCA 25
Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd [2024] QSC 285
2 citations
Jump To
Cite 1 - [2024] QSC 285
Cite 2 - [2024] QSC 285
Draney v Barry[2002] 1 Qd R 145; [1999] QCA 491
4 citations
Jump To
Cite 1 - [1999] QCA 491
Cite 2 - [1999] QCA 491
Cite 3 - [2002] 1 Qd R 145
Cite 4 - [2002] 1 Qd R 145
Evolution 70 Little Edward Pty Ltd v Maturu Group Pty Ltd [2023] QDC 81
2 citations
Jump To
Cite 1 - [2023] QDC 81
Cite 2 - [2023] QDC 81
GU v TO [2005] QCA 480
2 citations
Jump To
Cite 1 - [2005] QCA 480
Cite 2 - [2005] QCA 480
Haley v Roma Town Council[2005] 1 Qd R 478; [2005] QCA 3
4 citations
Jump To
Cite 1 - [2005] QCA 3
Cite 2 - [2005] QCA 3
Cite 3 - [2005] 1 Qd R 478
Cite 4 - [2005] 1 Qd R 478
Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)(2022) 11 QR 882; [2022] QCA 189
4 citations
Jump To
Cite 1 - [2022] QCA 189
Cite 2 - [2022] QCA 189
Cite 3 - (2022) 11 QR 882
Cite 4 - (2022) 11 QR 882
Rogers v Whitaker (1992) 175 CLR 479
2 citations
Jump To
Cite 1 - (1992) 175 CLR 479
Cite 2 - (1992) 175 CLR 479
Rogers v Whitaker [1992] HCA 58
2 citations
Jump To
Cite 1 - [1992] HCA 58
Cite 2 - [1992] HCA 58

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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