Long shot application to extend the limitation period for operations 40 years ago

Lang v McArthur & Ors [2019] QSC 119

Brown J

Facts

The applicant aged 42 suffered from leg palsy since she was a young child. The respondents administered injections of penicillin when she was three months old which allegedly damaged the applicant’s left sciatic nerve, causing the palsy. The applicant alleged her parents received negligent advice about the operations carried out on her in 1978 and 1991. In 2017, the applicant visited another doctor who brought to her attention a large staple in her foot, developing arthritis, deformities in her leg, and a possible decline in mobility. The applicant sought damages for personal injury. [1]-[3] but needed an extension of the limitation period, which expired on 16 December 1996 when the applicant turned 21.

Issue

The applicant sought an extension of time under s 31 of the Limitations of Actions Act 1974 (Qld). [35].

In issue was whether the description of the appellant’s leg as a deformed; the discovery of the identity of the doctor who administered injections of penicillin, and the discovery of a staple in her left foot constitute material facts of a decisive character?

Applicable Law

Pursuant to the Limitation of Actions Act 1974 (Qld) s 31 the court has the power to extend the end of the period of limitation by one year if a material fact of a decisive character was not within the applicant’s means of knowledge and the applicant has a cause of action [6].

The State of Queensland v Stephenson (2006) 226 CLR 197; The material fact discovered must have a decisive character, whether that be by the applicant becoming aware of some new material fact, or by causing an already know fact to become decisive [8]-[9].

Pizer v Ansett Australia Limited [1998] QCA 298 at [21] per Thomas JA; “cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated” do not justify extensions [68].

Wood v Glaxo Australia Ltd (1994) 2 Qd R 431 at 434-435, per Macrossan CJ; To be granted an extension under s 31(2)(b), the applicant must show evidence which can reasonably be expected to prove his case at trial if unopposed [85].

Decision

The appellant did not take reasonable steps to find out the facts of her injuries. [50]-[52], [70].

Brown J rejected the applicant’s argument that her leg being described as deformed by a doctor in 2017 was a decisive fact. Evidence existed proving the appellant had adapted her to life to the condition [47]-[50], [55]-[56], [63].

The principles in Pizer applied to the current case [68]-[71].

The presence of a staple in the applicant’s foot is not a material fact of a decisive character as there is no evidence it has relevance to any right of action [72].

The discovery of the doctor’s identity could be decisive, but for the applicant failing to take reasonable steps prior to November 2017 to discover the identity of the doctor [73]-[77].

The discovered facts considered separately or together do not constitute material facts of a decisive character. Material facts discovered which may be considered decisive were within the applicant’s means of knowledge prior to October 2017. Therefore, the applicant did not establish grounds for an extension under s 31(2)(a) of the Limitation of Actions Act [80]-[82].

The applicant failed to provide evidence which established a cause of action against the respondents [84]-[98].

It was also considered inappropriate in the circumstances to exercise the court’s discretion because a fair trial would be nearly impossible as forty years have passed since the injections and all of the relevant medical records have been destroyed [99]-[120].

The application was dismissed with costs

David Cormack – Brisbane Barrister & Mediator

Matthew Stephen – research assistant

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