Decision delivered 23 March 2020, Brisbane, by Ryan J
BEVERLEY ANNE SMITH
The three year period in which to bring a claim for negligence expired, at the latest, on 17 October 2015.
The applicant filed her claim on 24 October 2016. The applicant sought an extension of time until 15 September 2017, one year after the receipt by her lawyers of a specialist report (material fact of a decisive character) indicating the respondent’s treatment of her was negligent (cause of action), pursuant to s 31 of the Limitations of Action Act 1974 (Qld).
The applicant then filed an amended statement of claim on 11 September 2019, entirely replacing her original statement of claim.
Ms Smith, now 80 years old, was diagnosed with chronic glaucoma when she was 40. She knew she would eventually go blind, but believe “proper treatment” would delay its onset.
In January 2012, aged 72, the applicant was independent and still able to drive. On 18 January 2012, the respondent became the applicant’s ophthalmologist.
Intraocular pressure (IOP) was particularly relevant, in that increased pressure can damage the eye and cause loss of sight. Because of her glaucoma, the applicant had elevated IOP so managing this was a critical aspect of her treatment.
The respondent first examined the applicant’s eyes on 18 January 2012, noting her IOP was stable and prescribing her “usual” glaucoma medication. Second, on 9 July 2012, the applicant presented with sore and itchy eyes, vision deterioration, and a feeling of a film over her eyes. The respondent again measured her IOP, noting that it was “ok” (though a little higher than January), and prescribed the same glaucoma medication along with a lubricating eye drop.
On 6 August 2012, the applicant presented to her GP with red and itchy eyes and was urgently referred to the respondent, whom she saw the next day. The respondent diagnosed a viral eye infection, and prescribed steroid eye drops, informing the applicant they would likely send her IOP “right up”, but that they’d deal with that after the infection. The applicant returned on 21 August 2012 with her original symptoms along with worsened vision and sometimes feeling off-balance. The respondent prescribed a lubricating eye drop, and it was disputed whether he told her to “cease” the steroid eye drops or use the lubricating eye drops “alongside” the steroidal ones.
On 27 September 2012, the applicant returned to the respondent for an urgent, unscheduled consultation as she was unable to read or see her television. He informed her she had optic nerve damage in her right eye.
On 9 October 2012, the applicant’s face was reddened around her nose and eyes and she visited the respondent the next day. The respondent measured her IOP, which had continued to increase, and prescribed the “usual” medication along with a different eye drop. One week later he again measured her IOP and added another eye drop.
Approximately two weeks later, on 30 October 2012, the applicant returned to the respondent experiencing stinging and gritty sensations in her eyes, and struggling to distinguish between night and day. Her IOP had reduced since the previous appointment, but the respondent noted she had inflamed corneas and prescribed another (different) eye drop. The applicant asked to a referral to a different doctor, so the respondent referred her to Professor Graham Lee who specialises in glaucoma cases and saw the applicant that same day.
Professor Lee told the applicant she had suffered an allergic reaction to her medication and there was nothing the respondent could have done differently. Professor Lee prescribed three alternate medications and later performed laser surgery. Professor Lee was able to reduce her IOP but unable to improve her sight.
By June 2013, the applicant was blind in both eyes and reliant on her daughter for personal and domestic care.
Based on the statement of Professor Lee the applicant did not take further action.
In July 2015, the applicant and visited Koolik and Associates to execute a power of attorney. Lawyer Nick Koolik inquired about the applicant’s blindness and told them they should seek independent advice. Her referred them to another firm who then referred he on to a third firm, Monaco Solicitors.
Their lawyer at Monaco Solicitors sent an initial notice of claim to the respondent on 2 October 2015. Their lawyer also noted to the applicant and her daughter the strict time limits for bringing a claim, inquiring when exactly the applicant lost vision and informing them the first step would be to obtain an expert medical opinion. It was conceded by the applicant’s current lawyer that as of the notice of claim, there was a sufficient factual basis for the statements contained in it.
Monaco Solicitors took steps to obtain an expert opinion in early 2016, though the applicant’s case was then passed between lawyers within the office throughout 2016. Monaco Solicitors received an expert report from Dr Cohn on 15 September 2016. This report noted that usual or standard treatment was the course undertaken by the respondent of prescribing steroid drops, but this did not apply to the applicant given her advanced glaucoma and her use of ‘the three most potent eye pressure lowering agents available’.
On 23 September 2016 a lawyer from Monaco Solicitors informed the applicant and her daughter that the report supported a claim in negligence, so they instructed their lawyers to proceed with the claim.
The applicant and her daughter informed the Court they hadn’t put pressure on the lawyers to “keep things moving”, as they were “not in that field” so didn’t know how long the process would take.
 ‘[The daughter] was not aware that apparently no steps had been taken to obtain an independent review of her mother’s treatment between September 2015 and March 2016. She did not know that the same set of instructions were set to Dr Cohn in March and then July 2016. No one from Monaco Solicitors explained the delay in obtaining the report from Dr Cohn. Ms McCafferty “presumed that it just all takes time”.’
Decision of the Court
The applicant relied upon Dr Cohn’s report of 15 September 2016 as the ‘material fact of a decisive character’.
The Court noted that in the applicant’s daughter’s evidence, she stated they believed the respondent had done something inadequately or negligently causing the applicant’s blindness at the time they spoke to Monaco Solicitors. The Court noted this was a lay opinion, which was “transformed” from an action hoped for to one which she could realistically bring. 
However, Dr Cohn’s report ‘does not state with any clarity that the respondent failed to exercise reasonable care in his treatment of the applicant. Nor in my view does it canvas adequately the matters relevant to the cause of the applicant’s blindness.’ However, the Court decided to leave conclusions on the nature of Dr Cohn’s opinion to when having to consider the evidence to establish a right of action, so proceeded on the basis that the report was a material fact of a decisive character without reaching a conclusion about it.
On the question of whether the fact was within the applicant’s means of knowledge prior to 24 October 2015. The Court noted that, prior to that date, the applicant knew her blindness followed the respondent’s treatment, knew she should accept Professor Lee’s opinion as the ‘final word’ on the respondent’s treatment, and both her and her daughter were of the opinion that she was treated inadequately by the respondent. There were many months of inaction that remained unexplained, where the solicitors moved slowly, but were not at a stage where it could be expected that the applicant seek alternate legal advice.
The final main issue was whether there was evidence to establish a right of action. The parties acted on the basis that the only potential source of the evidence of a right of action was Dr Cohn’s report. The report was ambiguous and no clarity or follow up report was requested until 2019. The Court noted that there were ‘obvious deficiencies’ in the evidence, including that treatment was necessary, Dr Cohn considered continued use of the steroidal eye drops “consistent with peer opinion”, and the only option available to the respondent was a high risk surgery. Accordingly, the Court concluded that Dr Cohn’s report ‘does not provide evidence of the respondent’s failure to conform to the standard of care expected of a reasonable ophthalmologist.’ As such, it did not evidence a prima facia right of claim and in the absence of evidence establishing the cause of action it infected the ability to have a fair trial. Her Honour exercised the discretion under s 31(2)(b) and dismissed the application.
David Cormack – Brisbane Barrister and Mediator
Madeleine Bowater – research assistant