Sciacca v Ling & Anor [2013] QSC 97

 

JUDGE: North J
ORDER: Application dismissed
CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – EVIDENCE TO ESTABLISH RIGHT OF ACTION – POWER OF COURT TO EXTEND TIME

 

[29] When cross-examined about this letter the plaintiff said he could not remember the letter and that he was not sure that he had seen a copy of Dr Cannon’s report, but that if a copy had been sent to him the word, “statin” would have meant nothing to him.[57] In view of the evidence I referred to earlier and my findings I reject this last suggestion by the plaintiff.[58] The plaintiff was closely cross-examined by senior counsel for the second defendant upon the issue of the Cannon report.[59] When cross-examined his answers to questions suggested he was deliberately evasive, being concerned to hedge until he knew more of the detail with which he might be confronted.[60] I closely observed the plaintiff when he gave evidence. At other times when he was under cross-examination I had the distinct impression from the plaintiff’s demeanour that he was concerned that the evidence he was giving might appear improbable.[61] When giving evidence upon this issue there were significant hesitations or pauses by the plaintiff. He seemed embarrassed by the evidence he was giving. As the cross-examination proceeded the plaintiff overcame his initial hesitations and evasions and he became bolder and more emphatic that he had not seen the report until after he had commenced these proceedings.[62] Then when he was confronted by the evidence of his former solicitor’s letter to him of 10 December 2009 the evasion re-emerged.[63]

[36] At this juncture it is convenient that I record some findings concerning the evidence given by the plaintiff and Dr Roux. Earlier I set out at some length evidence given by Dr Roux in his affidavits and referred to some of his evidence when examined.[71] When he gave evidence Dr Roux impressed me as an intelligent and thoughtful man who was taking care to give accurate evidence of what he could remember. While it may be that when a witness gives evidence by telephone, as did Dr Roux, the opportunity of a judge to form an impression of a witness is more limited than when evidence is given and tested by cross-examination before the judge, nevertheless the impression I gained assists in persuading me that Dr Roux’s evidence is reliable. This conclusion is fortified by the circumstance that Dr Roux had available to him notes of his consultations and that for a long time the plaintiff had been his patient. The evidence of the multiple health issues suggests that the plaintiff’s management cannot have been routine so that it is likely that for Dr Roux the consultations with the plaintiff stood out from those with others. By contrast the plaintiff did not impress me as a reliable witness. He was wheelchair bound when he gave evidence and it is plain from the evidence that he has been very ill and remains, to some extent infirm. But even making allowances for this, including an impression gained towards the end of a rather long cross-examination that he appeared to tire, the plaintiff impressed me that he was alert and well able to understand the questions asked of him. At times when he was cross-examined concerning the content of documents or affidavits it took him some time to turn the documents up, but this was due to physical limitations not, in my view, to any want of mental acuity. I will not repeat the findings or impressions I expressed earlier in these reasons.[72] I have already commented upon the plaintiff’s demeanour and his evidence in important respects.[73] I have formed the view that the plaintiff was prepared to tailor his evidence to suit his interests rather than accuracy. Where there is a conflict between the evidence of the plaintiff and that of Dr Roux upon the detail of what was said during consultations I prefer the evidence of Dr Roux.

[45] Returning to the contentions of the defendants[97] and the plaintiff’s contention concerning his cognition or memory problems[98] I was referred to a passage from the reasons for judgment of Dawson J in Do Carmo v Ford Excavations Pty Ltd[99] which was quoted and applied by Thomas JA in Dick v University of Queensland[100] where his Honour said:

“[26] The legislation in question, ss 57 and 58 of the Limitation Act 1969 (N.S.W.), is in pari materia with the Queensland legislation, ss 30 and 31 of the Limitation of Actions Act 1974. In quoting further passages from Dawson J.’s judgment I have interpolated the relevant Queensland sections:

‘The form of the legislation requires, I think, a step-by-step approach. The first step is to inquire whether the facts of which the appellant was unaware were material facts: s. 57(1)(b) [Qld s. 30(1)(a)]. If they were, the next step is to ascertain whether they were of a decisive character: s. 57(1)(c) [Qld s. 30(1)(b)]. If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: s. 58(2) [Qld s. 30(1)(c)].

(Footnotes omitted)

Of the third step Dawson J. spoke of Thomas JA in Dick v University of Queensland said[101]:

“[34] In making a finding of fact on this important question, the reasonableness of the steps taken by the claimant needs to be considered, and of course a claimant will not succeed if he or she has unreasonably delayed in obtaining the necessary advice or information. However, it seems to me, with respect, that the approach of Dawson J. with whom Brennan J. agreed, represents the correct method. I note that Murphy A.C.J.’s judgment is at least consistent with that of Dawson J. (with whom Brennan J. agreed) and is inconsistent with the approach taken by Wilson and Deane JJ. The gathering of the necessary information and awareness which will make it reasonable for a claimant to bring an action may well involve progressive stages of awareness. Such situations were considered by the Full Court in Neilson v. Peters Ship Repair Pty Ltd and Randel v Brisbane City Council. As those cases indicate, the question whether a fact is not within the means of knowledge of a person at a particular time is still a question of fact. In Neilson I observed ‘it may be said of s. 30(d)(ii) that not many “steps to ascertain the fact” can reasonably be expected of a client when he is in ignorance of the need to ascertain it’.

[35] The appellant’s submission that the respondent, once having been provided with the information supplied by Dr Carroll, should instantly be taken to have consulted with all necessary experts (including industrial safety experts and solicitors) and to be taken to know such information as those persons would have supplied to him must be rejected. In my view the date by which any necessary additional fact was within his means of knowledge is the date by which a court may find him to have been able to find it out by taking all reasonable steps to do so.

[36] In cases where a potential claimant lacks a material fact, and reasonably needs the help of a solicitor or someone else to obtain it, some further time may reasonably elapse before it should be held that such facts are within the claimant’s means of knowledge. Such time will include the time which would reasonably elapse if the claimant, taking all reasonable steps to do so, consults solicitors or other persons, and those solicitors or those other persons undertake the necessary inquiries to ascertain the necessary additional facts to show whether or not there is a worthwhile cause of action.”

(Footnotes omitted)

[46] The second defendant also referred me to the reasons of de Jersey CJ in Fyles v Clarke[102] where his Honour said, referring to Castlemaine Perkins Ltd v McPhee[103]:

“The question of what is reasonable is to be answered objectively with reference to a person in the appellant’s position and with his background and understanding.”

The defendants submitted that the evidence demonstrated that the evidence of the plaintiff’s knowledge that Lipitor was a statin, that it was likely to be a contributing cause to his suffering in 2006 combined with his concession that if he had known those facts he would have sought legal advice immediately[104] warranted a finding that the plaintiff had not taken all reasonable steps within s 30(c)(ii) of the LAA.

[47] The plaintiff relied upon two affidavits and two reports of Dr John Rogers, a consultant psychiatrist.[105] The second defendant also relied upon the evidence of a specialist psychiatrist, Dr Martin Nothling.[106] The significance of the evidence of Dr Rogers for the plaintiff was his opinion that the plaintiff was at material times suffering from “impairments in memory, concentration and understanding of new information” related to “the combination of his post-stroke syndrome and related Major Depressive Disorder as well as his lack of understanding of the relevant connection between statins and Lipitor.[107] It might be noted, in fairness to Dr Rogers, that after he had an opportunity to review further material and the detailed report from Dr Nothling, his view altered somewhat. He was “much less inclined to suggest that any significant degree of post-stroke organic brain syndrome or confusional state was present” at relevant times.[108] But he still maintained that the depressive condition that the plaintiff suffered from might have adversely affected his capacities for concentration and memory. When cross-examined Dr Rogers frankly conceded that to a large part his assessment of the plaintiff depended upon accepting the accuracy of what the plaintiff told him.[109]

[48] The significance of any psychiatric, mental or other complication affecting memory and concentration in the context of a consideration of whether a person has taken “all reasonable steps” within s 30(1(c)(ii) of LAA was considered by the Court of Appeal in NF v State of Queensland [110]. In that case Williams JA said:

“[2] In my view it is clear from s 30(1)(b)(ii) and s 30(1)(c)(ii) of the Limitation of Actions Act 1974 (Qld) (fully set out in the reasons of Keane JA) that in particular cases the personal circumstances of the person seeking relief pursuant to the Act will be of vital importance. One only has to have regard to the following words in order to demonstrate that:

“the person . . . ought in the person’s own interests and taking the person’s circumstances into account” [s 30 (1)(b)(ii)]

“as far as the fact is able to be found out by the person”

[s 30(1)(c)(ii)].

Those words in s 30(1)(b)(ii) were considered and applied in the recent series of cases involving applications for extension of time by undercover police operatives: Russell v State of Queensland [2004] QCA 370; Morris v State of Queensland [2004] QCA 371; Stephenson v State of Queensland [2004] QCA 483; Reeman v State of Queensland [2004] QCA 484; and Bougoure v State of Queensland [2004] QCA 485. Further reference could be made to the observation by this court in Healy v Femdale Pty Ltd [1993] QCA 210: “There is no requirement to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to do so.” In similar vein is my observation in Young v The Commissioner of Fire Service [1997] QSC 43: “To my mind it is of critical importance here that the applicant’s psychiatric condition prevented him from appreciating the nature and significance of the injury he had suffered and its likely consequences. The very psychiatric condition in question militated against the applicant knowing its seriousness and probable consequence.”

[49] To a similar effect Keane JA said:

“[29] It is to be emphasized that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act. This view is supported by the text of s 30(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b). The authorities do not afford conclusive support for this view; but they do not foreclose its acceptance, and it may be noted that in Young v The Commissioner of Fire Service Williams J, as his Honour then was, accepted that a psychiatric condition which prevents an applicant from appreciating the nature and significance of the injury he has suffered was relevant for the purposes of s 30(1)(c)(ii). I note that it appears that this decision was not cited to McGill DCJ in Hopkins.

[30] At this point I express my respectful disagreement with the observation of McGill DCJ in Hopkins where his Honour, speaking of the applicant’s avoidance of a discussion of the incidents which caused her harm, said that this problem is:

“… not one which is readily accommodated within the framework of s 31 … It is essentially concerned with facts which were in a practical sense not available to the applicant in time. It is not, it seems to me, concerned with the situation where an applicant who was in possession of the important facts simply did not want to pursue the matter, for whatever reason. I do not think that the situation is changed by the fact that the desire not to pursue the issue is in a sense caused by the psychiatric injury itself. There is also a focus on what it was reasonable to do, which directs attention to what an ordinary reasonable person in the position of the applicant would have done, rather than what this applicant would have done, bearing in mind her personal emotional and psychological difficulties. A ‘reasonable person endowed with the knowledge and experience of the plaintiff’ [Pizer (supra) at [20]] is different from a reasonable person suffering the same psychiatric condition as the plaintiff.”

[31] In my respectful opinion, the observation made in the last sentence cited from his Honour’s reasons is correct so far as it goes, but it fails to recognize that s 30(1)(c) is not concerned with what might be expected of a reasonable person; it is concerned with what might reasonably be expected of the applicant in the particular case. I acknowledge that the view which commended itself to McGill DCJ in Hopkins is not foreclosed by the course of authority, but I consider that the approach of the learned primary judge more closely accords with the text and structure of s 30 of the Act.”

(Footnotes omitted)

[50] On behalf of the plaintiff it was submitted that I should conclude that the plaintiff failed to follow up on the information he’d been given by Dr Roux, assuming I found facts as contended for by the defendants, because of the subtle and insidious effect of the plaintiff’s depressive condition affecting his memory and his cognitive functioning. Counsel for the plaintiff submitted that, assuming findings were made against the plaintiff upon what he was told or what came to his attention, the circumstance that no advice was sought from his lawyers until after May 2010 was indicative of cognitive problems. This was emphasised in light of the circumstance that the plaintiff had, prior to 2006, been an intelligent and vigorous successful businessman capable of decisive action.

[51] The submission made on behalf of the plaintiff has a superficial attraction. The plaintiff suffered from depression subsequent to the 2006 illness. He was treated for that by Dr Roux. Further it may be granted that persons suffering from depression can suffer from an impairment to memory or cognitive functions to some degree. But the evidence points to the fact that the plaintiff through 2007 and following remained an intelligent man capable of decisive action and making decisions in his own interest. In 2007 and 2008 he was able to instruct solicitors to organise a “boardroom coup” to regain control of his corporate interests.[111] In 2009 he was capable of instructing solicitors to engage vigorously in litigation in the Family Court. It appears that he was busy attempting to refinance and re-establish his business interests in the months and years following his illness. Dr Rogers only had the opportunity to see the plaintiff once (in November 2012). He was not a treating doctor. The evidence from Dr Roux does not suggest that following discharge from hospital the plaintiff’s memory or cognitive functioning was so impaired that he was not capable of making informed decisions as to where his interests lay nor capable of recalling or memorising facts and matters that might be important. While the discharge summary from the Townsville Hospital and other records suggest depressive symptoms there is no evidence before me of any systematic neuro psychiatric assessment done contemporaneously that suggests significant cognitive or memory impairment.[112] There are other circumstances that are suggestive. In the statement of claim filed in these proceedings[113] the plaintiff alleges that he suffered from adverse medical consequences as a result of the negligence of the defendants including depression[114] but it is not alleged that he suffered any significant cognitive or memory impairment.[115] Further in the affidavit filed in the Family Court which exhibited medical reports obtained for the purposes of “stalling” that litigation[116] the plaintiff made no reference to any cognitive or memory impairment notwithstanding he made detailed references to other medical conditions and complications he had suffered as a consequence of the 2006 episode.[117] In the circumstances I do not accept Dr Rogers’ tentative suggestions that the plaintiff may have been suffering from memory or cognitive deficits consequent upon his depression in the years 2007 through to 2009 that may have affected him as submitted on his behalf. The plaintiff has not made out a circumstance comparable to that considered by the Court of Appeal in NF v The State of Queensland.

[52] In my reasons earlier I expressed a distinct preference for the evidence of Dr Roux to that of the plaintiff and set out my reasons for my reservations concerning the reliability of the plaintiff’s evidence upon certain matters.[118] The second defendant submitted that the evidence of the plaintiff about when he first became aware of the possible link between Lipitor and his 2006 illness should not be accepted and that his application should necessarily fail.[119] My reservations concerning the plaintiff’s reliability and credit as a witness lead me to conclude that I am unable to accept his claim that the document printed by Mr Vetters on 9 February 2008 first came to his attention when he discovered it when cleaning out a desk drawer in May 2010.[120] The evidence however does not permit me to make a precise finding as to when that document first came to the attention of the plaintiff. Nevertheless the evidence persuades me that in 2007 and 2008 (this was reinforced by the information that came to his attention in 2009) the plaintiff well knew that it was likely that Lipitor was responsible for causing him to suffer his illness in 2006.[121]

[53] It may be noted that when instructed in 2010 the solicitors on behalf of the plaintiff moved promptly to obtain expert reports and evidence in support of the plaintiff’s claim upon issues of liability.[122] It was suggested by counsel on behalf of the defendants that the reason why the plaintiff failed to move promptly when he became aware of the likely (or possible) link between Lipitor and the 2006 incident was because the plaintiff was simply unaware that there was a limitation period. It should not be overlooked that the plaintiff had a number of matters to attend to following his discharge and recovery in 2007. His business affairs were in disarray, he needed to regain control of his business and it appears he had financial difficulties and funding problems to deal with. In addition his wife was pursuing him for a property settlement. It would seem the plaintiff turned his mind first to his business affairs. He took steps to “stall” the Family Court proceedings. It is likely in the view I take of the plaintiff’s intelligence and sophistication that he made a conscious decision to prioritise those matters that concerned him with the consequence that he only turned his efforts to further investigating and pursuing any rights against those who treated him when in 2010 he instructed his then solicitors to investigate the matter.

[54] I do not believe the plaintiff when he says it was only in May 2010 that he discovered the possible link between Lipitor and his illness. He has not discharged the onus of proving that a material fact only came to his attention on or after 29 November 2009 (“the critical date”). Further the plaintiff armed with the information in 2007, 2008 and 2009 of the “material fact” did not take reasonable steps within the meaning of that term used in s 30(1)(c)(ii) of the LAA.

[55] The plaintiff’s application is dismissed. I will hear submissions concerning costs.

 

David Cormack – Brisbane Barrister.

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