Australia: Late claim allowed for medical negligence: When is expert opinion a material fact of a decisive character?

In the recent decision of Quinn v State of Queensland (No. 2) [2016] QDC 156, the District Court of Queensland allowed an application for an extension of the statutory limitation period for a belated personal injury claim for damages arising from alleged medical negligence.

Here, Partner Robert Tidbury and Law Clerk Daniel McCulloch provide a summary of the District Court of Queensland's decision.

Take Away Points

  • Actions in respect of personal injury in Queensland, including claims for medical negligence ordinarily must be brought within 3 years after the injury occurred or else the action will be statute barred.
  • Where a claim is brought outside of the limitation period, the applicant will have the onus of satisfying the court that their claim could not have been brought earlier.
  • A court in its discretion may allow an extension of the limitation period under section 31 LAA on the basis of expert opinion obtained after the expiration of the limitation period if it is a material fact of a decisive character, subject to the satisfaction of all other requirements under section 31 LAA.
  • Expert opinion may be a material fact of a decisive character if it is evident that it "should have induced the applicant to sue".
  • The fact that competent solicitors might or should have taken necessary steps to protect an applicant's limitation period does not determine the prospects for an application under section 31 LAA.

Facts

The applicant, Ms Quinn, underwent several surgeries performed by Dr Alkidady between November 2011 and March 2012 to resection her colon due to bowel cancer. Ms Quinn suffered serious post-surgical complications including significant blood loss, lower back pain and probable infertility.

In June 2013 Ms Quinn was referred to Dr Taylor who performed surgery to relieve some of her post-surgical complications. Based on matters discussed with Dr Taylor and the Health Quality and Complaint Commission, Ms Quinn became aware of deficiencies in her care under Dr Alkidady. Ms Quinn also learned of the death of one of Dr Alkidady's patients and on 1 July 2013 sought legal advice.

Ms Quinn's then solicitors engaged Dr Greenberg to provide expert opinion regarding her treatment by Dr Alkidady. After unexplained delay by the solicitors in forwarding Ms Quinn's medical records, Dr Greenberg provided a report on 7 September 2014 (which was within the limitation period) in which he concluded that medical negligence was unlikely to be proved.

Ms Quinn promptly raised concerns with her solicitors regarding Dr Greenberg's report, however it was not until after the expiration of the limitation period that her solicitors consulted Professor Morris, a second expert, who provided a report on 10 May 2015 that supported a finding that Dr Alkidady was negligent.

As Ms Quinn's claim was time barred by the Limitations of Actions Act 1974 (LAA), she applied for an extension of the limitation period pursuant to section 31 LAA.

The key issue for the Court was whether under section 31 LAA a material fact of a decisive character relating to the right to bring an action was within the means of Ms Quinn's knowledge, prior to the receipt of Professor Morris' report. The respondent, the State of Queensland, argued that Ms Quinn had all of the information she needed to institute proceedings prior to Professor Morris' report and that the reason that proceedings were not instituted and/or that steps were not taken under the Personal Injuries Proceeding Act 2012 (PIPA) was because of the negligence of her former solicitors.

Decision

The presiding Judge, Reid DCJ, followed the Queensland Court of Appeal decision of Ervin v Brisbane North Regional Health Authority & Anor [1994] QCA 424. That case similarly concerned an application under section 31 LAA to extend the limitation period for a medical negligence claim due to a belated expert report. The majority held that the report constituted a material fact of a decisive character because it contained evidence that "should have induced the applicant to sue".

Applying Ervin, Judge Reid found that while Ms Quinn was deeply suspicious of Dr Alkidady's treatment, Dr Greenberg's report advised that she would be unlikely to prove negligence. That position was not altered until the receipt of Professor Morris' report; prior to that it could not be said that Ms Quinn ought to have sued.

It was accepted by his Honour and the respondent that the fault for the delay in obtaining Professor Morris' report lay with Ms Quinn's solicitors and there was no suggestion that Ms Quinn had failed to take reasonable steps as required by section 30(1)(c) LAA to obtain that report.

While Justice Reid accepted that competent solicitors should have taken steps to effectively protect Ms Quinn's interests under PIPA prior to the expiration of the limitation period, this was not a matter for consideration under section 31 LAA. Further, his Honour was not persuaded by the respondent's argument that granting the application would mean that the applicant was entirely protected by her solicitors' negligence. While his Honour acknowledged that this was the practical effect here, it would not always or even often be the case. Finally, there was no suggestion that the delay in bringing an action in negligence prejudiced the respondent's position.

As a result of these findings, Justice Reid granted Ms Quinn's application to extend the limitation period.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions