Australia: Limitation Periods: Whose side is time on?

Last Updated: 7 January 2012
Article by Joanna Burton

On 1 April 2009 an article in the Cairns Post caught the attention of 3 women who had undergone plastic surgery procedures in 2004, 2005 and 2006 with a Cairns surgeon. For each of the women, the article was said to be the catalyst for making enquiries as to whether they had a right of action against the surgeon.

By the time each of the women obtained legal advice to commence proceedings the statutory 3 year limitation period prescribed under section 31 of the Limitation of Actions Act 1974 had passed.

Applications seeking to extend the limitation period were brought in each of the 3 cases. Two failed and one succeeded. The decisions of the Queensland District Court provide a detailed assessment of the law in this area and are especially relevant to medical negligence claims.

Section 31(2) of the Limitation of Actions Act 1974 permits a court to extend a limitation period if "it appears to the court –

  1. that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last proceeding the expiration of the period of limitation for the action; and
  2. that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation".

If the criteria is met, then the court may extend the limitation period for 1 year after that date.

First and foremost there must be a "material fact of a decisive character", which (in effect) must not have been known until after "the critical date", and the applicant must also have taken reasonable steps to establish that fact before the critical date. Relevantly for medical negligence cases, it was considered that a patient discovering that his or her medical practitioner had performed at a standard below that to be reasonably expected would ordinarily be a "material fact of a decisive character".

Other critical elements to succeed are:

  • Evidence which goes to establishing a right of action; and
  • Absence of prejudice to the defendant caused by the delay.

Byfield – plaintiff successful

In April 2006 Carol Byfield underwent surgery to remove and replace breast implants. She sustained post-surgical complications of ripples in her breast implants and bruising at the drain sites. She had follow up consultations with the surgeon. In the weeks after the Cairns Post article she sought legal advice and subsequently obtained a report from an expert who concluded that the treatment was below the standard to be expected of a reasonably competent surgeon, which included a failure to warn Ms Byfield that because of her low body fat she was at a particular high risk of adverse outcome.

Proceedings were filed 11 months after the expiration of her limitation period. Ms Byfield relied upon the expert opinion regarding breach of duty as the "material fact". The court accepted that the discovery of the surgeon's apparent breach as set out in the report was sufficient to be a material fact of a decisive character. It was found that Ms Byfield had acted reasonably with her follow up, and therefore the "material fact" could not have been expected to have been known earlier. The report was also sufficient to establish that the applicant had a cause of action.

Because this was a medical matter including issues about the adequacy of warnings, it was necessary for Ms Byfield to show that the alleged failure was causative of loss. The judge held that in cases where there is an allegation of failure to warn of a risk, and that risk actually eventuates, that is sufficient to establish a prima facie case of causation, absent a more plausible outcome.

As for prejudice it was found that the respondent surgeon would not sustain prejudice if the matter was permitted to proceed. All relevant witnesses were available and the surgeon's own notes as well as other hospital notes were available. In addition the claimant had undergone subsequent surgical procedures with the surgeon making her even more aware of the claimant's situation.

The limitation period for Ms Byfield was extended so that she could proceed with her medical negligence claim against the surgeon.

Livett – plaintiff unsuccessful

Cheryl Livett underwent surgery for breast augmentation in August 2004. She had a history of breast cancer 9 years earlier which lead to a lumpectomy. At that time she had post-operative infections. After the 2004 procedure she sustained infections and ultimately underwent further surgery, and in April 2005 she was suffering from a significant infection and came under the care of other doctors who were critical of her earlier treatment. She underwent further surgical intervention and hyperbaric treatment. Like Ms Byfield, she sought legal advice after seeing the Cairns Post article, and her solicitors ultimately obtained a medical report which expressed the view that the advice and treatment she had received from the surgeon was below the standard to be reasonably expected. In particular the expert identified that she should have been told that she had increased risks because of her history (making her less tolerant to infections).

Ms Livett's application to extend the limitation period failed because she was not able to establish that a "material fact of a decisive character" came to her knowledge at the relevant time. It was found that she knew of all the relevant physical matters and the absence of warnings well before her limitation period expired. She had been told as much by various treating doctors. Furthermore, the surgeon had previously apologised to her and revealed that she had contacted her medical indemnity insurer. The surgeon paid for Ms Livett's surgery.

McKeown – plaintiff unsuccessful

Ceara McKeown underwent surgery for a breast reduction procedure in December 2005. Infection complications followed and Ms McKeown was left with scarring. Some months after reading the Cairns Post article, Ms McKeown obtained a report from an expert who concluded that there had been a failure to warn of the risks of infection, scarring and loss of sensation.

The expert report was relied upon as the material fact of a decisive character. However it was found by the court that the failings identified in the expert report were risks that were in fact warned of. It was found that the risks identified in the expert report were made known to Ms McKeown before the surgery, and there was therefore no basis to extend the limitation period. There was no evidence to establish that Ms McKeown had a cause of action against the surgeon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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