Extension of the Limitation Period: Glaxo test & Means of knowledge

Wolverson v Todman; Wolverson v Lisle & Hooper [2015] QCA 74

Gotterson JA delivered the majority judgment. Holmes JA concurred and McMeekin J dissented in respect of the “means of knowledge” issue involving the radiologists appeal.

Gotterson JA

[7] The judgment under appeal is an order of the District Court made on 17 April 2014 dismissing two applications for an extension of the limitation period under s 31(2) of the Limitation of Actions Act 1974 (Qld) (“Limitations Act”) in respect of separate proceedings for personal injury in the District Court.[5] Ms Wolverson is the applicant in both applications and is the plaintiff in both proceedings. Both applications for an extension of the limitation period were heard together on 13 March 2014. Reasons for judgment[6] were published on 17 April 2014. The determination of costs on both applications was left to abide further submissions.

[8] One of the applications for extension of the limitation period before the learned primary judge was made by an application filed in proceeding No 1552 of 2010 on 21 January 2014.[7] The other was made by an application filed in proceeding No 2770 of 2013 also on that date.[8]

Factual background

[18] Ms Wolverson alleges that Dr Todman diagnosed her as having multiple sclerosis on “definite clinical grounds” in 1994. Whilst that may be in issue, it is uncontroversial that Dr Todman had definitely made that diagnosis by early 2005. During the course of treating Ms Wolverson, Dr Todman had had regard to the following MRI scans which had been provided to him:

  • MRI scans taken by Dr O’Connell on 16 May 2002
  • MRI scans taken by Dr Lisle on 21 June 2004
  • MRI scans taken by Dr Hooper on 30 May 2006
  • MRI scans taken by Dr McGuire on 17 September 2007

It is also uncontroversial that a Chiari Type 1 malformation was apparent on each of the images produced by the scans and that each of the radiologists failed to identify its presence. Nor was it identified by Dr Todman.

[19] Ms Wolverson remained in Dr Todman’s care until April 2009. On 7 April that year, a further MRI scan was conducted by Dr C Kua, radiologist, who reported to Dr Todman that a caudal protrusion of the cerebellar tonsil below the foramen magnum up to 1.2 cm raised the possibility of a Chiari Type 1 malformation.[16]

[20] Ms Wolverson then sought the opinion of other specialists including Dr Robert Campbell, consultant neurosurgeon, to whom she was referred by her general practitioner. Dr Campbell arranged for another MRI scan which confirmed the presence of the malformation. He advised the general practitioner on 28 May 2009 that Ms Wolverson was “really focused” on having the malfunction treated.[17] He said that he was “somewhat unconvinced” that it explained most of her symptoms and that he had advised her that “decompression of this lesion would not reverse any of her existing symptoms, but would only promise prevention of progression of Chiari manifestations”.[18]

[21] On 26 June 2009, Ms Wolverson underwent surgery in the form of a craniotomy, brain stem compression and a C1 lamenectomy to restore cerebrospinal fluid flow. She suffered a confusional episode after the surgery. Five months later she reported to Dr Campbell that she felt that a lot of her symptoms had resolved since surgery, a notable exception being a vision impairment.[19]

[22] There was expert evidence before the learned primary judge that the diagnosis of multiple sclerosis made by Dr Todman was a misdiagnosis; that it was not made on the basis of adequate evidence; and that the treatment of her for multiple sclerosis was not justified. This evidence was contained in a report of Dr Ross Mellick, consultant neurologist, dated 26 August 2013.[20] This report also contained opinion evidence relevant to the causal link issue considered later in these reasons.

[23] As well, there was expert evidence that the Chiari Type 1 malformation was demonstrated on the imaging carried out by each of the four radiologist-defendants; that such a malformation was well described in the literature and the potential association of “coning” after lumbar puncture was well recognised; and that the failure by the radiologists to identify the malformation was a failure to meet an appropriate standard of care. This evidence was given in a report by Dr John Earwaker, radiologist, dated 23 July 2012.[21] Dr Earwaker supplied a supplementary report dated 4 November 2013[22] in which, as his Honour noted, the author “for the first time” linked the alleviation of the symptoms with the surgery.[23]

Proceedings commenced after expiration of respective limitation periods

[24] The learned primary judge noted that the limitation period for an action for negligence or breach of contractual duty causing personal injury is three years from the date on which the cause of action arose.[24] He observed that for a claim in tort, the cause of action is complete only when appreciable damage has occurred, and independently of whether the injured party is aware or not that the damage has occurred.[25] On the footing that, on Ms Wolverson’s case, appreciable damage from a failure on Dr Todman’s part to diagnose or treat the Chiari Type 1 malformation must have occurred by late 2005, his Honour reasoned that the limitation period for a proceeding against Dr Todman would have expired by the end of 2008.[26]

[25] His Honour also reasoned that appreciable damage from the alleged negligence or contractual breach of duty on the part of the radiologists would have occurred by the end of 2007 at the very latest.[27] Hence, the limitation period for the commencement of a proceeding against them would have expired by late 2010.

[26] Each proceeding was commenced after the limitation period applicable for it had expired. An extension of the limitation period was therefore necessary for each proceeding to continue.

The grounds of appeal and contention

[41] The proposed notice of appeal[42] in CA No 4576 of 2014 (“the Neurology Application”) and the notice of appeal[43] in CA No 4577 of 2014 (“the Radiology Appeal”) contain nine and seven grounds of appeal respectively. A Notice of Contention[44] has been filed in the Neurology Application. Three Notices of Contention[45] have been filed in the Radiology Appeal, two by the individual respondents and the other by the corporate respondent.

[42] The Neurology Application and the Radiology Appeal were heard together. In oral submissions, counsel for the parties identified issues raised by the grounds of appeal and of contention and addressed them, rather than addressing each of the grounds individually. It is convenient to adopt a similar approach in these reasons.

The causal link issue

[43] It was submitted for Ms Wolverson that the learned primary judge erred in concluding that the evidence that would be adduced on her behalf at trial, if uncontradicted, was insufficient to prove the causal link. The submission argues that, in applying the Glaxo test, his Honour did not approach the task informed by authority on the question of what evidence is sufficient to allow findings to be made to the requisite standard with respect to a causal link where a plaintiff has reported the existence of symptoms and subsequently reports that surgical intervention has alleviated the symptoms. It also proposes that had his Honour approached the task consistently with that authority, he would have reached a contrary conclusion on the issue.

[44] I note at this point that the written submissions for Ms Wolverson contend that her evidence of improvement of symptoms following the surgery, of its own, would have been sufficient to prove that the surgery was the cause of the improvement. That contention, which concerns only one of the factual aspects of the causal link in the sense in which the learned primary judge used that term, was not pursued in oral submissions. At the hearing before this Court, the focus of submissions was on the medical evidence, particularly the reports of Doctors Earwaker and Mellick. Further, the submissions for all parties extended to all the factual aspects covered by his usage of the term.

[45] It is evident that the learned primary judge did reach the conclusion that he did with respect to causal link upon a consideration of the reports of Doctors Earwaker and Mellick and that he was influenced to reach it by words such as “may”, “might” and “possible” which are emphasised in the passages from their reports quoted by his Honour. He regarded them as fatal to Ms Wolverson’s case. Much of the criticism in argument for her was centred on that.

[46] The decision in Reeves, on which his Honour relied, is brief. There, the test in Glaxo was held not to have been satisfied. The Court considered that a medical opinion that it was possible that a work injury had had a lasting effect on the condition of the plaintiff’s back would, of itself, have been insufficient to prove causation on the balance of probabilities. No reference was made to the observations made in Fernandez v Tubemakers of Australia Ltd,[46] to which counsel for Ms Wolverson referred the Court.

[54] In my view, the criticisms made of the process by which the learned primary judge reached the conclusion on causal link are valid. It was reached by a process which was defective in that it proceeded on erroneous footings, firstly, that unless there is medical opinion evidence which puts the likelihood of a causal link as probable, a finding of a causal link could not be made, and, secondly, that an expression of possibility of a causal link in a medical opinion would necessarily be insufficient for a finding of a causal link (notwithstanding that the finding of such a link may be open on the totality of the relevant evidence); and it failed to have regard to aspects of the medical opinion evidence in context which are apt to indicate a likelihood of a causal link higher than mere possibility.

[55] The evidence at trial would include the evidence of Ms Wolverson herself as well as the medical evidence. When an approach consistent with Fernandez is taken, the conclusion appropriately reached, in my view, is that there is a sufficiency of evidence available to Ms Wolverson, if led at trial and uncontradicted, from which factual findings as to the cause of her symptoms, the reasonable foreseeability that they might be alleviated by the surgery she underwent in 2009 and the effect of that surgery on her symptoms could be made as would establish the causal link required for a cause of action. Taken with the other matters for which his Honour considered there was sufficient evidence, the causal link would complete the elements of a cause of action for recovery of damages on a basis that Ms Wolverson endured symptoms over a long period of time as a result of a persistent misdiagnosis of her symptoms as those of Multiple Sclerosis and a recurrent failure to diagnose and recommend treatment for the Chiari 1 malformation.[60]

[56] For these reasons, I consider that the learned primary judge erred in concluding that Ms Wolverson had failed to establish a right of action at the level required by the test in Glaxo.

Means of knowledge issue

[57] The learned primary judge accepted that the availability of medical opinion such as could facilitate proof of the causal link was a material fact of a decisive character as that concept is defined in s 30(1) of the Limitations Act.[61] This aspect of the reasons is not challenged in the grounds of appeal or contention. His Honour also concluded that medical opinion of that description was not available to Ms Wolverson before November 2013 or January 2014 when Dr Earwaker’s supplementary report and Dr Mellick’s report respectively were to hand.[62]

[58] The point at issue here is one which the learned primary judge noted was raised on behalf of the respondent radiologists.[63] It arises from the requirement in s 31(2)(b) that the material fact be one that 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 limitation period for the action against those respondents and the qualification in s 30(1)(c) that a fact is not within a person’s knowledge at a particular time only if the person did not know the fact at that time and that person has taken all reasonable steps to find it out before that time.

[59] After referring to relevant authorities and reviewing the chronology of events which preceded the obtaining of those two reports, his Honour concluded that Dr Earwaker’s first report was received some 17 months after it could reasonably have been obtained and that a report from Dr Mellick or another specialist neurologist could have been obtained in early 2011.[64] Later, he made the following findings:

“[80] While the test looks to the applicant’s actual state of knowledge and what could reasonably be expected from an actual person in the circumstances, I consider that the applicant in this case failed to take reasonable steps to ensure her action progressed in a timely way.

[81] Accordingly, in my view, had the applicant taken all reasonable steps the opinion of a specialist neurologist, whether Dr Mellick or another specialist, would have been able to be personally known to her by, at the latest, a date in early 2011.

[82] In order to succeed on the application for extension of the limitation period in the action against the radiologist the applicant must show a material fact of a decisive character was not within her means of knowledge until a date after 31 July 2012. The conclusion I have reached means the applicant would on this basis not succeed in that action.

[83] These findings are not fatal to the claim against Dr Todman as the relevant date for that claim is 27 May 2009. …”[65]

[60] The dates nominated by his Honour, 31 July 2012 in the case of the radiologists and 27 May 2009 in the case of Dr Todman, each preceded, by one year exactly, the date on which the respective proceedings were commenced. Counsel for Ms Wolverson had submitted to his Honour they were the operative dates.[66] Presumably that submission was made having regard to the provision in s 31(2) that permits an extension of the limitation period for one year from the operative date and allowed for the circumstance that each proceeding had already been commenced. The correctness of that submission was not challenged before his Honour, nor has it been challenged on appeal.

[61] His Honour’s findings imply that he was satisfied that up to 27 May 2009, Ms Wolverson had taken all reasonable steps to find out the material fact in question. Given that it was not until April 2009 that the malformation was detected, and the diagnosis of Multiple Sclerosis was put in doubt, that he was so satisfied is unremarkable.

[71] From this factual background, the issue for consideration is refined to whether Ms Wolverson had taken all reasonable steps in the period before 31 July 2012 to obtain Dr Earwaker’s opinion in its supplemented form. The relevant frame of reference is what she knew and did.

[72] In April 2009, Ms Wolverson knew that Dr Kua had recently detected the possible Chiari 1 malformation, and by May 2009 she knew that its existence had been confirmed.[80] She also knew that she had undergone successive radiological examinations in the past and that the possibility of the existence of the malformation had not been reported to her at those times.

[73] At the time that legal aid was sought in 2010, Ms Wolverson knew that it was important that an independent radiologist be engaged to express an opinion about what was observable on the MRI scans that had previously been taken. She knew also that legal aid for such a report had been requested. She acknowledged that her solicitor kept her up-to-date with the outcome of such requests.[81]

[74] The decision to defer the radiological opinion for which funding had been approved was one in which Ms Wolverson participated. The reason given for the deferral does not withstand scrutiny. That proceeding concerned Dr Todman, the neurologist, only. It did not concern the radiologists who were potential defendants and whose professional work was to have been the subject of the opinion. It may be that the deferral was motivated by expediency on Ms Wolverson’s part, namely, were the HQCC process to lead to a sufficiently satisfactory outcome for her, she might not wish to progress litigation against the radiologists. That, however, does not paint the decision to defer the opinion as reasonable. In circumstances where, to her knowledge, the opinion was required for a proceeding against the radiologists and funding for the opinion had been secured, judged objectively, it was not, in my view, reasonable for her to defer obtaining it.

[75] For these reasons, I consider that the learned primary judge was correct to conclude that Ms Wolverson had not taken all reasonable steps to ascertain the causal link by 31 July 2012. A consequence of a finding to that effect is that the causal link cannot be characterised as a material fact of a decisive character that was not within Ms Wolverson’s means of knowledge at that date. Further, a consequence of that characterisation is that it cannot be relied upon by her to ground an application for an extension of time of the limitation period to 31 July 2013, the date on which proceeding against the radiologists was in fact commenced.

The learned primary judge was correct to refuse an extension of the limitation period for the commencement of proceedings against the radiologists individually and Queensland Diagnostic Imaging Pty Ltd, on this basis. It follows that the Radiology Appeal cannot succeed.

[84] In reliance upon the decision of the High Court in Brisbane South Regional Health Authority v Taylor,[89] it is submitted for Dr Todman that Ms Wolverson did not establish that an extension of the limitation period would not result in significant prejudice to him. The submission is elaborated in writing as follows:

“Dr Mellick made a number of observations about the absence of medical records in his report.

At page 8, he referred to the Appellant developing increasing symptoms following a cerebrospinal leak after a lumbar puncture in 1989. Dr Mellick said, ‘Regrettably, the writer is not able to identify any additional clinical detail related to the symptoms which followed the lumbar puncture’. At that time the Appellant was consulting Dr Reimers, a neurologist.

At page 11, he reported that the first detailed neurological examination of the Appellant was documented following a visit to the Emergency Department on 10 June 1997, some nine years after the Appellant says her symptoms commenced.

At page 14, he noted the various reports he considered had a paucity of clinical detail regarding the specific findings, which were identified on physical examination. They include those by Dr Todman.

Without this material, the Respondents are prejudiced. The Appellant reported symptoms and the clinical assessments of the Appellant prior to the misdiagnosis, compared to her claimed residual symptoms following surgical intervention, which cannot now clearly be established, or proven by reference to documented contemporaneous records.

Further, the issue having been identified in the Appellant’s own material, it was for the Appellant to prove that no prejudice would ensue. She did not attempt to do so.

Due to the passage of time from the alleged diagnosis, the Appellant’s delay in progressing the claim, and the limited clinical notes, it is likely that relevant interactions and conversations between Dr Todman and the Appellant will no longer be within their memory. This gives rise to a general presumption of prejudice.” (Footnotes omitted.)

(These submissions were also made on behalf of one of the radiologist respondents.)

[85] The report by Dr Mellick to which these submissions is referenced is very detailed. It reveals that Dr Mellick had available to him correspondence from 1992 and thereafter between Dr Todman and others, including radiologists, concerning Ms Wolverson’s condition. His report indicates that the relevant MRI scans are available. He also had reports of other medical practitioners who had examined Ms Wolverson at stays in hospital. To use his own words, there are “a very large volume of notes” available concerning her condition.[90] There is no reason to doubt that any of these records and documents would be available for a trial.

[86] The observation by Dr Mellick at p 14 of his report relied on in the written submissions is not to be read as implying that a clear record of Dr Todman’s physical findings was in fact made but that it no longer exists or is not available. No evidence was adduced for Dr Todman to the effect that records that he had made of his findings no longer exist or that he would be prejudiced in proceedings in any significant respect.

[87] In summary, there is no evidential basis from which the learned primary judge ought to have inferred that there was a significant prejudice to Dr Todman in extending the limitation period which Ms Wolverson had failed to disprove. In my view, it would not have been appropriate for him to have dismissed the application for extension on the ground of significant prejudice to Dr Todman.

Disposition

[88] For these reasons, in the Neurology Application, leave to appeal should be granted and the appeal allowed with costs. In lieu of the order made by the learned primary judge, an order extending the limitation period should be made. Costs of the application for that order should be costs in the cause. Ms Wolverson’s application filed in proceeding No 1552 of 2010 on 24 January 2014 should otherwise be dismissed. Dr Todman’s application filed in that proceeding on 7 March 2014 should also be dismissed.

 

David Cormack – Brisbane Barrister & Mediator

 

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