The Supreme Court of Queensland has dismissed an application pursuant to section 31 of the Limitation of Actions Act 1974 (Qld) (LAA) for an extension of the limitation period applicable to a claim for damages for medical negligence.
On 4 October 2018 the applicant commenced a claim against the respondents for damages for negligence associated with the performance of two surgical procedures by the first respondent, an obstetrician and gynaecologist at the Royal Brisbane and Women’s Hospital in 2011, involving insertion of a mid-urethral sling to treat urinary incontinence.
It was alleged that the first respondent failed to warn the applicant of the risks associated with mid-urethral slings implants including, specifically, the risk of developing mesh pain syndrome.
A brief timeline of events is set out below:
Applicant underwent 2 surgical procedures
5 December 2013 &
17 March 2014
Applicant received medical reports in support of claim from Dr Lander and Dr Reid
In or around 2014
Applicant consulted at least three sets of solicitors for advice after receiving the above medical evidence
Late 2014 – Early 2017
Applicant did not take any active steps to prosecute a claim
27 July 2017
Applicant received additional medical evidence in support of her claim from Dr Lander
25 October 2017
Applicant provided the above reports to her current solicitors
On or about 11 December 2017
Applicant received advice from her current solicitors based on medical evidence provided to them that she had a viable claim against the respondents and that solicitor was prepared to represent her in the proposed claim.
4 October 2018
Applicant commenced proceedings
The applicant sought to rely upon the advice which she received from her solicitors on 11 December 2017 as a ‘material fact of a decisive character’, pursuant to section 31 of the LAA, to extend her limitation period.
The respondents alleged that material facts of a decisive character were within the means of knowledge of the applicant prior to 4 October 2017 i.e. that she had all relevant medical reports in her position before that date and she had not taken all reasonable steps to ascertain the significance of those reports.
The Issues Considered
The respondents accepted that there was evidence to establish the relevant right of action, apart from a defence founded on the expiration of a limitation period.
The primary issues for determination were:
- Was the solicitor’s advice provided to the applicant on 11 December 2017 a ‘material fact’, such that the applicant's limitation period ought to be extended?
- Were any or all of the earlier medical reports a ‘material fact ‘and, if so, what was the effect on the limitation period?
- Did the applicant take all reasonable steps to ascertain material facts of a decisive character?
- What was the relevance, if any, of any prejudice to the respondents arising from extension of the limitation period?
Decision of the Supreme Court
Citing Do Carmo v Ford Excavations Pty Ltd1, and applying the High Court’s reasoning, the Court found that the relevant sections of the LAA relating to what constitutes a material fact were concerned with the applicant’s knowledge of ‘the facts’ rather than the legal advice which supports a cause of action arising from those facts. As a result, the Court did not accept that the giving of legal advice alone constituted a material fact relating to the right of action.
Turning to the medical reports, the court held that the first report of Dr Lander dated 5 December 2013 did contain a material fact for the purposes of section 31 of the LAA. It contained an opinion that the surgeries performed in 2011 were unsuccessful and required revision.
The court acknowledged that despite finding it was a ‘material fact’, the medical report of Dr Lander did not obtain its decisive character until such time as the applicant had the opportunity to take legal advice on the report and its bearing on her legal cause of action.
The applicant consulted at least three sets of solicitors whilst in possession of the first report of Dr Lander and prior to retaining her current solicitors. Each of the earlier solicitors declined to assist the applicant. She took no positive action to investigate or pursue her potential claim between September 2014 to 2017, when further legal advice could have been sought.
Whilst the court acknowledged that the applicant would have been very discouraged by the outcome of her consultations with the initial three sets of solicitors it concluded that, in circumstances where she was firmly personally of the view that a wrong had been done and she knew the limitation period for bringing a claim was expiring (having been put on notice by a solicitor at the time), it was not reasonable to allow more than two further years to pass without any attempt to obtain further legal advice.
On the issue of potential prejudice, the court emphasised that in a failure to warn case a crucial issue is the content of the conversations between a patient and a treating doctor in relation to risks associated with medical procedures.
The court considered that in such a case, which is not one to be entirely decided on objective evidence and where memories are important, there was a real risk that a fair trial would not be able to be achieved where the applicant intended to give evidence as to conversations with the first respondent, and the first respondent’s ability to recall those conversations or at least his usual practice of those is impaired due to both the effluxion of time and his early dementia.
In light of the fact the applicant had been in possession of a material fact since 5 December 2013, and had an opportunity to obtain the necessary legal advice to give that fact it’s decisive character well before 4 October 2017 but failed to do so, the court refused to exercise its discretion to extend the limitation period to 4 October 2018 pursuant to section 31 of the LAA.
Implications for you
This decision is a timely reminder that a claimant ought to commence legal proceedings within the prescribed limitation period. If not, they run the risk that the Court will not grant an extension of that period depending upon when the claimant became aware of a material fact of a decisive character.
Further, in the context of an application seeking extension of a limitation period, another relevant consideration is any prejudice potentially suffered by a prospective defendant if prosecution of a claim has been delayed.
1 154 CLR 234