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

Unreported Citation:

[2022] QCA 189


In this significant case, the Court of Appeal considered the circumstances in which an extension of a limitation period should be granted under s 31(2) Limitation of Actions Act 1974. Importantly, they considered when a Court would be satisfied that an applicant had taken “all reasonable steps” to find out a material fact when they had instructed solicitors to act on their behalf. In this case, the court found that there was insufficient evidence to show that she had followed up with her solicitors as to the progress of the matter. The appeal was dismissed.

Morrison and Mullins JJA ad Boddice J

30 September 2022

In May 2015, Ms Magarey had an ankle fusion surgery. [6]. Following surgery, her condition did not improve, resulting in a revision procedure, performed in August 2016. [6]. Under s 11 Limitation of Actions Act 1974 (“LAA”), Ms Magarey had three years within which to bring a claim in respect of any personal injuries arising from her ankle fusion surgery.

Ms Magarey first instructed lawyers to act on her behalf in November 2016. [6]–[7]. However, in July 2017, these lawyers advised Ms Magarey that it would cost her $5,000 to obtain an expert report to confirm her condition. [13]. Ultimately, she terminated their retainer and instructed CMC Lawyers, who told her they would take on her case and meet the costs in around August 2017. [13]. During this period, Ms Magarey’s condition deteriorated, ultimately resulting in a below the knee amputation, which was performed in August 2018. [8]–[18]. It was not until February 2019 that CMC Lawyers sought a preliminary opinion from Professor Higgs, an orthopaedic specialist. [20].

On 30 September 2020, Ms Magarey received a report from Professor Higgins in respect of her ankle, which concluded that ankle fusion was “unwise, not indicated, and unlikely to have any beneficial effect” on Ms Magarey’s symptoms. [37]. The primary judge found that this was a “material fact of a decisive character” which, if it was not “within the means of knowledge of the applicant” until after the expiry of the limitation period, could ground an extension of the limitation period under s 31(2) LAA. [42]. To do this, Ms Magarey was required to show that she had taken “all reasonable steps to find out the fact before that time” under s 30(1)(c)(ii) LAA. [43]–[46]. However, the primary judge concluded that it was within Ms Magarey’s means of knowledge prior to 30 September 2020, and so dismissed the application for an extension of the limitation period. [44]–[54].

The critical question on the appeal was whether Professor Higgs’ report was within Ms Magarey’s “means of knowledge” prior to 30 September 2020. [55]. In considering this question, Mullins JA, with whom Morrison JA and Boddice J agreed, first focused on Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419 (“Neilson”), where McPherson J held that, so long as a plaintiff “did his best to ensure that the solicitors did not languish in the prosecution of the action”, and had instructed apparently competent solicitors with adequate instructions, they would usually be considered to have taken all reasonable steps to ascertain the relevant facts. [64]. However, her Honour confined Neilson to circumstances where the action had already been commenced to the knowledge of the plaintiff before being absent for four and a half months. [68].

Ultimately, Mullins JA observed that whether a fact is not within the means of knowledge of a person at a particular time is a question of fact. [69]. The focus in s 30(1)(c)(ii) is on what can reasonably be expected from the actual person in the person’s circumstances. [74]. These factors include: [76]

“… the stage of investigation of the proposed claim for personal injuries, the stage of any pre-proceeding steps, whether the proceeding has commenced, the steps taken in the proceeding, the nature and frequency of the contact between the applicant and the solicitors as to the progress of the claim or the proceeding, and the effect on the applicant of any advice given by the solicitors as to the requirements to advance, and about the progress of, the claim or the proceeding.”

While it is not required that an applicant has followed up his or her solicitors’ handling of the claim, it may be a relevant factor. [77]. Mullins JA concluded that, on the facts as found by the primary judge, it was “obvious to Ms Magarey” that she may have a cause of action in respect of her ankle fusion surgery. [79]. Further, she knew she required an orthopaedic specialist’s report from at least mid-August 2017. [79]. In the circumstances, Mullins JA found that the length of time between engaging CMC Lawyers and obtaining Professor Higgs’ report was “excessive in the circumstances”. [79]. In this context, it was “critical to Ms Magarey’s success that she show how she had tried to follow up with CMC Lawyers. [80].

Justice Mullins concluded that, on the evidence before the primary judge, there was insufficient evidence to show that Ms Magarey had followed up with CMC Lawyers in this period. [80]. Accordingly, her Honour concluded that Ms Magarey’s appeal should be dismissed. [81]–[82].

M Paterson

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