Medical negligence – limitation period – means of knowledge

Blind v Hertess [2010] QDC 322

CATCHWORDS: LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL INJURIES – where the limitation period for an action for damages for personal injuries to the plaintiff/applicant allegedly caused by her doctor’s negligence – whether the material fact of a decisive character was within the plaintiff/applicant’s means of knowledge – whether the period of limitation for the action should be extended

Limitation of Action Act 1974 (Qld) ss 11; 30(1) & 31(2)

 

Issues

The plaintiff/applicant applied for an extension of the limitation period in relation to a claim for medical negligence on the basis of the report of Dr Marshall dated 4 May 2010 (material fact). The procedure performed was a bilateral breast augmentation (‘1st surgery’) on the 13th July 2004. Further ‘corrective’ procedures were subsequently performed. The main issue was whether the material fact of a decisive nature was within her means knowledge prior to 11 March 2009, 12 months after the date the plaintiff filed her claim.

Ryrie DCJ

The applicant said she saw her lawyers as a result of an article in the Cairns Post on 1 April 2009. Her lawyers then arranged for the report from Dr Marshall.

Her Honour accepted the report was within the category of being a material fact of decisive factor:

[6] The discovery of expert evidence to prove a case on liability has consistently been held to be a ‘material fact of a decisive character’, particularly in cases involving medical negligence, see Campbell & Anor v Bleakley [2007] QSC 351, Ervin v Brisbane North Regional Health Authority [1994] QCA 424 and Castlemaine Perkins v McPhee [1979] Qd R 469. The fact the applicant commenced her proceedings before obtaining Dr Marshall’s opinion is of no consequence to her right to bring this application: see Queensland v Stephenson [2006] HCA 20; (2006) 227 ALR 17 at para [30].

Not Within her means of knowledge’ (s.30(1)(c))

[16] Section 30(1)(c) of the Act provides:

a fact is not within the means of knowledge of a person at a particular time if, but only if—

(i) the person does not know the fact at that time; and

(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. ”

[17] As observed by Keane JA (as he then was) in NF v State of Queensland [2005] QCA 110, s.30(1)(c) is not concerned with what might be expected of a reasonable person, rather it is concerned with what might reasonably be expected of this particular applicant in this case.

Her Honour came to the conclusion that applicant was aware of the problems in her breasts before the critical date. She had attended for further corrective surgery on 2 occasions (24th and 25th of November 2004); she had complained and the second surgery had been at a ‘special rate’ and the third for free, because she said she’d received poor medical treatment.  She had also made a complaint to the Queensland Health hotline around the same time. Later in November 2005 the applicant had attended the respondent’s surgery and told her she was a ‘bad surgeon’ and threatened to go to the media:

[30] The medical records annexed to the affidavit of Emmelene Gray filed 13th August 2010 ‘EKG-1’ (the accuracy of which was not challenged) also shows that in late 2005, during the course of those two consultations on 9th and 16th November 2005, the applicant considered that the respondent had been incompetent, that the respondent had put the implant in upside down and had creased it and that she had been to many surgeons who would not operate. Those notes reveal that the applicant had told the respondent that she knew she was a bad surgeon and would take her story to New Idea to ruin her reputation. The applicant’s friend Mr Evans, who was also present at those meetings, also said that the respondent could refund the money that they had spent on the initial augmentation. (my emphasis) The annexure to the applicant’s own affidavit ‘EB2’ also refers to ‘botched breast augmentation surgery’ which in my mind can only be referring to the 1st surgery which was in fact the procedure (that is, breast augmentation) that was performed. The applicant also accepted under cross examination that even though her friend Mr Evans had been the author of that letter she understood what in fact ‘botched’ meant. (T1-49 L15). The applicant’s own evidence at hearing also does little to assist her on this issue. Her concession during cross examination that she believed she had received a special rate for the 2nd surgery was because she believed that was because something had gone wrong in the 1st surgery in that the respondent hadn’t done the surgery correctly. She also gave evidence that she also believed she had got a special rate on the 2nd surgery because the implant ‘is fold’. (T1-34 L15 – 20).

Her Honour concluded:

[31] Having regard to the matters I have just outlined, I find that by late 2005, the applicant was possessed with a sufficient body of knowledge and belief that required her to take all reasonable steps to investigate the possibility of a claim against the respondent. The cumulative effect of those matters is that I find that the applicant had within her means of knowledge to find out material facts well before 11th March 2009. I find that the applicant failed to take all reasonable steps to find out those facts before that time. It follows that the applicant’s application must therefore fail.

Brisbane Barrister – David Cormack

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