Desmond-Bryzak v Lander [2024] QSC 72

SUPREME COURT OF QUEENSLAND CITATION: Desmond-Bryzak v Lander [2024] QSC 72 PARTIES: HARRIETT DESMOND-BRYZAK (plaintiff) v DR JAMES LEWIS LANDER (defendant) FILE NO/S: BS 12240 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 2 May 2024 DELIVERED AT: Brisbane HEARING DATE: 9 and 15 February 2024 JUDGE: Bradley J ORDER: The Court orders that: 1. Pursuant to section 31 of the Limitation of Actions Act 1974 (Qld), the period of limitation for the plaintiff’s action is extended so that, for the purposes of proceeding 12240 of 2019, the limitation period expired at midnight on 21 December 2018. 2. The costs of the application up to 9 February 2024, excluding the costs thrown away by the adjournment, are the parties’ respective costs in the proceeding. 3. The defendant pay the plaintiff’s costs of the application after the adjournment on 9 February 2024. CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – where the defendant performed pelvic mesh implant surgery on the plaintiff in November 2013 – where the plaintiff commenced proceedings against the defendant in December 2018 in New South Wales alleging negligence and claiming damages for personal injury – where the proceeding was transferred to Queensland outside of the three year expiry period for bringing personal injuries claims under section 11 of the Limitation of Actions Act 1974 (Qld) (Act) – where the plaintiff seeks an extension of the limitation period under section 31 of the Act -- 1 of 19 -- 2 so that it expires at midnight on the date the proceeding was commenced in New South Wales – where the plaintiff consulted various medical practitioners about her condition after the surgery – where the plaintiff joined a class action against manufacturers of the mesh in 2015 – where the plaintiff joined a Facebook group titled “Australian Mesh Injured Support Group” in 2015 – where the plaintiff made a submission to a Senate inquiry into the use of mesh – whether there is evidence to establish the plaintiff’s right of action – whether material facts of a decisive character were not within the plaintiff’s means of knowledge until a date no more than 12 months prior to commencement of the proceedings – whether the plaintiff took all reasonable steps to find out the relevant material facts of a decisive character – whether the discretion to extend the limitation period should be exercised Civil Liability Act 2003 (Qld), ss 59, 61 Limitation of Actions Act 1974 (Qld), ss 11, 30-31 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, followed NF v State of Queensland [2005] QCA 110, followed State of Queensland v Stephenson (2006) 226 CLR 197, cited Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, followed COUNSEL: Charles Wilson for the plaintiff D J Schneidewin for the defendant SOLICITORS: AJB Stevens for the plaintiff MinterEllison for the defendant [1] On 28 November 2013, the plaintiff underwent surgery involving a pelvic mesh implant1 (the operation) which was performed by the defendant at a Brisbane hospital. On 21 December 2018, the plaintiff commenced an action against the defendant alleging negligence and claiming loss and damages for resulting personal injury.2 The action is now in this Court.3 1 The plaintiff describes the operation as a vaginal repair with second-generation biograft, with sacrospinous fixation sutures with transobturator insertion of mid-urethral tension free vaginal tape. One of the defendant’s expert reports describes it as a posterior vaginal repair with a biological small intestinal submucosa graft and sacrospinous colpopexy with a Monarc tape sling inserted. Neither party contended there was any relevant material difference on this point. 2 The plaintiff claims her injury was caused by the defendant’s negligence, including breach of contractual duty and breach of statutory guarantees (of due care and skill and of fitness for purpose) arising under the Australian Consumer Law (Competition and Consumer Act 2010 (Cth) sch 2). The defendant accepts the proceeding was validly commenced, although the plaintiff had not then complied with the pre-proceeding provisions of the Personal Injuries Proceedings Act 1994 (Qld) (PIPA). 3 The action was commenced in the Supreme Court of New South Wales. It was transferred to this Court by an order made on 4 October 2019. See: Hartmann v Lander [2019] NSWSC 1351. The parties have now completed the statutory pre-court processes for a personal injury claim set out in the PIPA. They have made disclosure and exchanged expert evidence. -- 2 of 19 -- 3 [2] In Queensland, a negligence action, in which damages for personal injury are claimed, cannot be brought after the expiration of three years from the date on which the cause of action arose.4 It is accepted by both parties that the limitation period for the plaintiff’s claims expired in December 2016 or January 2017.5 [3] By then, the plaintiff knew the implanted mesh had caused her harm. She had suffered persistent chronic pain since the operation. She had sought professional treatment in the hope that it could be resolved. She had been advised to be patient. She had had a series of recommended medical procedures. Some gave her temporary relief. All required periods of recovery. She had been diagnosed with post-traumatic stress disorder and was being treated by a psychiatrist with medications for major depressive disorder and mood disorder. [4] She had joined a class action against the manufacturer of the mesh. She had urged a Senate inquiry to recommend a ban on its use. [5] None of her treating specialists had suggested that the defendant had been negligent. Nor had her class action lawyers. The scale of her loss and damage would not become apparent until more than a year after the limitation period expired. [6] On the evidence before the Court, it appears the plaintiff has a substantial claim for damages against the defendant for failing to warn her of the operation’s risks and for negligence in performing the operation. She asks the Court to extend the limitation period to midnight on 21 December 2018, the day on which she commenced the action. For the reasons set out below, she should have an extension. The power to extend [7] The Court’s power to extend the limitation period is conferred by s 31(2) of the Limitation of Actions Act 1974 (Qld) (Act). [8] For the plaintiff to obtain the extension, it must appear to the Court that there is evidence to establish her right of action.6 To obtain an extension to 21 December 2018, it must also appear that a material fact of a decisive character was not within her means of knowledge before 22 December 2017.7 The plaintiff bears the onus of proving the necessary facts to persuade the Court of these things.8 [9] The plaintiff must also show that the justice of her case requires the extension.9 4 This is the effect of s 11(1) of the Limitation of Actions Act 1974 (Qld) (Act). 5 The parties assume the limitation period applies to all the causes of action the plaintiff advances against the defendant in the proceeding. 6 Act, s 31(2)(b). 7 Act, s 31(2)(a). 8 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 256. 9 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553-554 (McHugh J). -- 3 of 19 -- 4 The plaintiff’s evidence to establish her right of action [10] The plaintiff relies on reports by medical specialists.10 (a) A gynaecologist and urogynaecologist, who is also a conjoint professor of obstetrics and gynaecology, says that the operation “was considered experimental” as late as 2015. He also says it was known in 2013 that chronic and severe pain, more severe dyspareunia, hispareunia, mesh erosion and mesh contraction, and resulting repeat surgery, were complications that could arise from mesh implant surgery, and that such consequences did not arise from more traditional surgical options, such as native tissue repair. In his opinion, it was inappropriate for the defendant to offer the plaintiff mesh implant surgery. (b) A consultant obstetrician and gynaecologist, who is also a professor of obstetrics and gynaecology, cites a 2011 study which found that incidences of groin and thigh pain related to mid-urethral transobturator sling placement arose in up to 40% of patients who were the subject of the study. In his opinion, the plaintiff’s persisting pain was likely due to nerve entrapment or damage which was “a recognised complication” of mesh surgery with sacrospinous fixation. [11] At a trial, the plaintiff would seek to persuade the Court that the defendant was under a duty to warn her about the nature of the operation and risks associated with it. Specifically, the plaintiff says the defendant had a duty to warn her: (a) that the procedure he proposed to perform in the operation was experimental; (b) that there were more traditional and non-surgical options open to her; and (c) that there was a risk that the procedure would result in chronic pain. [12] The case for such a duty might be said to be strong because the risks of injury identified by the medical specialists in their reports would not be apparent to a patient. [13] The plaintiff says the defendant failed to warn her of these things. Her evidence is to the following effect: (a) On 20 August 2013, in her first consultation, the defendant recommended the operation, describing it as “the only thing we could do”, and saying it would involve “pig membrane [that] will hold everything in place” and “tape to deal with the stress urinary incontinence and fix that problem.” (b) On or around 5 September 2013, the defendant said, “If you want to do physio, I’ll give you a referral. But it’s not going to help you. You need surgery. …surgery is the only way to fix it.”11 (c) On 7 November 2013, the defendant told her, “Your physio is not working. The next option is surgery.” The defendant again recommended the operation 10 The plaintiff also relies on written information the defendant’s office gave her. It stated that the long- term success rate of the procedure was “not known”. She says the defendant did not draw this to her attention and she did not notice it before the operation. 11 The plaintiff’s husband has given his recollection of this consultation, which seems to corroborate the plaintiff’s evidence. -- 4 of 19 -- 5 as “the only way to fix my problem.” On this date the plaintiff signed the necessary consent forms for the operation. [14] The plaintiff alleges that she would have tried a non-surgical option or a more traditional surgery, and would not have consented to the operation, had she been warned about each of the things referred to in paragraph [11] above. The defendant cannot give direct evidence of this at trial. However, the Court could infer it from the steps the plaintiff took before and after the operation to seek out and undergo non- surgical therapies and more minor procedures, before ultimately having surgery to partially remove the mesh, and later undergoing further surgery to remove the remaining mesh implanted by the defendant. The Court could also draw this inference from the fact that a person in the plaintiff’s position, acting rationally, would likely choose an available non-surgical option or a more traditional surgery (if it were presented) over an experimental procedure that involved the risk of chronic pain. [15] The plaintiff has deposed to the pain she has experienced since the operation, and the practical and economic consequences she says she has experienced. There is evidence from a consultant anaesthetist and pain and rehabilitation medicine physician that her chronic pain may fluctuate but is unlikely to significantly subside over time. A consultant physician in rehabilitation medicine says the plaintiff has “reached maximal medical improvement.” As a result of her medical conditions, the plaintiff may achieve a capacity for 20 hours of work a week but has a significantly compromised competitiveness in the current labour market. Does it appear there is evidence to establish the plaintiff’s right of action? [16] The defendant contended that the plaintiff had not put evidence before the Court to establish her right of action against him. I reject that submission. [17] By the evidence noted at paragraphs [10] and [13]-[15] above, the plaintiff has pointed “to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove [her] case”.12 This evidence appears to establish the plaintiff’s right of action against the defendant, absent a defence based on the expiry of the limitation period under the Act. The plaintiff has satisfied the condition in s 31(2)(b) of the Act. Whether material facts of a decisive character were not within the plaintiff’s means of knowledge until after 22 December 2017 [18] It is convenient to consider this issue in two parts: firstly, to identify the material facts of a decisive character on which the plaintiff relies in seeking the extension; and secondly, to consider whether it appears that these material facts were not within the plaintiff’s means of knowledge before 22 December 2017. The material facts on which the plaintiff relies [19] The plaintiff says she did not know these four facts before 22 December 2017: (a) There was authoritative information available to medical specialists, including the defendant, that gave rise to a duty on the part of the defendant to warn her about the things set out in paragraph [11] above. 12 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 435. -- 5 of 19 -- 6 (b) A person, qualified to give an opinion, had expressed a view that the operation was not medically appropriate for a person in her position, which gave rise to a duty to not advise her to have the operation and to not perform it. (c) The symptoms she experienced after the operation were caused by the defendant’s negligence. (d) The symptoms she experienced after the operation would be permanent and sufficiently serious to prevent her continuing in full-time employment for the balance of her expected working life. [20] Each of these is a material fact relating to her right of action.13 To be a material fact of a decisive character, it must also meet the definition set out in s 30(1)(b) of the Act. [21] In State of Queensland v Stephenson, the majority of the High Court explained: “Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say … that in a sense none of the material facts relating to [an] applicant’s right of action is of a decisive character until a reasonable person ‘knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing’ the features described in sub-paras (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.”14 [22] A reasonable person, knowing the facts in listed in paragraph [19] above, and having taken appropriate advice on them, would regard them as showing that the plaintiff would have “reasonable and worthwhile litigation prospects” if she were to pursue a right of action against the defendant and, if she did so, it would result in an award of damages sufficient to justify bringing the action.15 Such a person would also regard those facts as showing that bringing such an action was in the plaintiff’s interests, taking her circumstances into account.16 It follows that in a relevant combination, this “assemblage” of material facts17 are material facts of a decisive character relating to the plaintiff’s right of action, within the meaning in s 31(2)(a) of the Act. [23] As to the combinations of these facts, the following appears to be the case. If the Court is satisfied that it appears the fact in paragraph [19](d) above was not a fact within the plaintiff’s means of knowledge before 22 December 2017, then the Court may grant the extension of the limitation period, even if it appears [19](a), (b) and (c) were facts then within her means of knowledge. Similarly, if it appears none of the facts in paragraphs [19](a), (b) and (c) was a fact then within the plaintiff’s means of knowledge, the Court may extend the limitation period, even if it appears [19](d) was a fact within her means of knowledge before 22 December 2017. Of course, if none 13 Act, ss 30(1)(a)(i), (iii)-(v). 14 (2006) 226 CLR 197, 208 [29] (Gummow, Hayne and Crennan JJ). 15 Act, s 30(1)(b)(i). 16 Ibid s 30(1)(b)(ii). 17 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 437 (Macrossan CJ). -- 6 of 19 -- 7 of these facts was within her means of knowledge before 22 December 2017, the Court may extend the limitation period. Were these facts, in a relevant combination, not within the plaintiff’s means of knowledge before 22 December 2017? [24] A fact is not within a person’s means of knowledge at a particular time if, but only if, the person does not know the fact at that time, and, as far as the fact is able to be found out by the person, the person has taken all reasonable steps to find it out before that time.18 In NF v State of Queensland, Keane JA explained that this requirement “speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps”, so that “the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries.”19 His Honour concluded: “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 …”20 [25] In Wood v Glaxo Australia Pty Ltd, Davies JA noted that where the relevant fact is not an observable fact, a plaintiff could not know the fact “in an absolute sense”.21 Knowledge of such a fact can only involve a certain “degree of satisfaction of the existence of that fact”.22 In Wood, the relevant fact was a causal connection between a defendant’s negligence and damage suffered by a plaintiff. His Honour found this was within the means of knowledge of the plaintiff: “… only when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have been that that was so.”23 Summary of the plaintiff’s evidence [26] At the hearing, the parties relied on the evidence of the plaintiff’s medical and work history, her dealings with legal advisors, and a submission she made to a Senate inquiry, all in the period between December 2013 and 22 December 2017. The following is a summary of her evidence. [27] The plaintiff experienced immense pelvic pain when she awoke after the operation. In a post-operative consultation, the defendant told her these symptoms were normal, and she should “just give it time.” When she returned for a review, less than a month 18 Act, s 30(1)(c). 19 [2005] QCA 110, [29] (Keane JA, with whom Williams JA and Holmes J agreed). 20 Ibid. 21 Wood 441. 22 Ibid. 23 Ibid 442. -- 7 of 19 -- 8 later, the defendant told her, “You can wait and the pain will go away in two years.” When she asked for his advice, the defendant said, “Give it two years.” [28] On 30 January 2014, the plaintiff again consulted the defendant due to significant pain. The defendant referred her for an ultrasound. It was conducted on 4 February 2014. After reviewing the results, the defendant told the plaintiff the mesh needed to be removed. He reported to the plaintiff’s general practitioner that part of the mesh was eroding into her urethra and that he recommended timely surgical excision. [29] On 11 February 2014, a urologist removed a section of the mesh. The defendant assisted with this surgery. At a post-surgery consultation, the urologist told the plaintiff he, “could only remove a 6cm piece, which had eroded into the urethra and had severed the urethra.” He told her to wait at least six months before he would be able to do anything further to help with some of her symptoms. [30] On 5 March 2014, the urologist told the plaintiff it was too early to assess the results of his surgery. The plaintiff remained optimistic she would make a good recovery. [31] The plaintiff was on leave from work from the operation on 28 November 2013 until late April 2014. After this, she returned to work. [32] On 14 October 2014, she had further surgery by the urologist. She took leave for this surgery and returned to work in about January 2015. [33] In or around July 2015, she took several weeks off work due to pain. She continued to be treated with oral pain medications prescribed by her general practitioner. [34] In the second half of 2015, the plaintiff joined a Facebook group titled “Australian Mesh Injured Support Group”. On the group’s page she found information about a class action against manufacturer of the mesh used in the operation. In about September 2015, the plaintiff joined others in the class action. [35] From about 16 January 2016, the plaintiff was under the care of a psychiatrist in relation to low mood and anxiety related issues. [36] On 29 March 2016, the plaintiff told her general practitioner about the class action and asked for details about her gynaecological surgeries. The doctor told her the information on the Facebook page about the adverse impact of pelvic mesh surgery was from a “questionable source”, that she was “fine” and “didn’t need to worry about that.” [37] In May 2016, the plaintiff suffered radiating back pain after vacuuming at home. She was unable to work for two days. In July 2016, she was unable to work for another five days. The pain persisted. In September 2016, she had a CT guided L5/S1 facet joint injection and, a week later, a CT guided L5 nerve root injection. [38] On 5 October 2016, the plaintiff consulted an orthopaedic specialist regarding her chronic back pain. He said she was a “complex patient” with “a lot going on in the pelvis area”. The plaintiff says he was the first doctor to tell her that her back was not causing her pain issues, that it was referred pain, and that “everything was coming from the pelvis.” He referred her to the Pelvic Medicine Centre at a private hospital. -- 8 of 19 -- 9 [39] There, on 10 October 2016, the plaintiff sought the opinion of a senior gynaecologist and reconstructive surgeon. He told her there was no medical evidence to support the view that the symptoms she was experiencing were caused by the operation. He said her back and pelvic pain had another cause. Although, he thought the pain in her left buttock was probably nerve damage caused by the operation. He recommended Botox injections and a pudendal nerve block to provide pain relief. He also referred the plaintiff for a course of physiotherapy at a public hospital and suggested she return for a review afterwards. She had physiotherapy sessions to relax her pelvic floor. [40] On 8 December 2016, the plaintiff returned to the senior gynaecologist, who performed the recommended Botox injections and pudendal nerve block procedure. This gave the plaintiff some relief for about three months. [41] On 14 March 2017, she consulted the senior gynaecologist again. He recommended another pudendal block, more Botox injections to the pelvic floor, and a cystoscopy. On 20 March 2017, he carried out those procedures. They provided the plaintiff with some relief for a period of perhaps three months. He also told her to see a physiotherapist for more pelvic floor muscle training. She did so, obtaining a referral from her general practitioner. [42] Around 14 June 2017, the senior gynaecologist referred the plaintiff to a pain specialist. She saw this specialist on 30 June, 14 September, and 7 December 2017. [43] On or around 20 June 2017, the treating psychiatrist diagnosed the plaintiff with post- traumatic stress disorder. [44] On 29 June 2017, the plaintiff made a written submission to the Senate Community Affairs References Committee inquiry into the number of women in Australia who have had mesh implants and have experienced adverse side effects. The plaintiff told the Senate inquiry that the implanted mesh “eroded and severed my urethra and vaginal wall” and “damaged my pudendal nerve causing constant pain”. [45] In response to the inquiry’s request for suggestions or recommendations about changes to laws, policies and practices, the plaintiff wrote: “The very first thing I would be enforcing, is, that the patient be told there are other options. That your own fascia tissue can be used in place. I was never told of this possibility. I didn’t know this could be done. Giving the patient full disclosure of the risks involved to inform them fully before making a decision is crucial.” [46] In answer to the question, “What information was given to you or your family member prior to surgery to implant the transvaginal mesh?”, the plaintiff wrote: “After my Urodynamics tests had shown I had a prolapse, the surgeon suggested I have surgery to correct the problem. He explained the procedure and told me I would be as good as a 16 year old. He gave me a leaflet and a photocopy of the procedure and side effects. None of which explained just how much of your life this procedure would take away.” [47] In answer to the question, “What is your experience of doctors’ knowledge of transvaginal mesh implants, complications and side effects?”, the plaintiff wrote: -- 9 of 19 -- 10 “I can not say if my surgeon knew just how dangerous mesh was. How could he offer it if he did. When I notified him of the symptoms post surgery, he organised a 4D ultrasound and I was taken right in for removal the following morning by a different surgeon who was willing to try the procedure. GPs, physiotherapists, psychologists have no idea of the complications and severity of how mesh has crippled women. They have not been educated in all of this as yet.” [48] In answer to the question, “Do you have any suggestions or recommendations about what information you think doctors should be provided with in relation to transvaginal mesh?”, the plaintiff wrote: “Doctors need to be aware of all the possibilities of the anatomy that can possibly be affected, including nerve damage. The Pudendal Nerve is such an important nerve. The main nerve of the perineum. It carries sensation from the external genitalia and the skin around the anus and perineum, as well [as] the motor supply to the external urethral sphincter and the external anal sphincter. Anyone given this information is going to deny surgery. The damage has caused me crippling pain in the pelvis, groin and back. This is unknown by the patient at the time of surgery. No one can make an informed decision without all the facts.” [49] In answer to the question, “How could women adversely affected by transvaginal mesh implants tell their stories to doctors?”, the plaintiff wrote: “In my experience, doctors do not really want to listen. They are unaware of just how big the effects are. … They are desensitised to women’s concerns and symptoms. Specialists do not communicate findings with each other to try and work together to solve the problems. I visit many different specialists to try and investigate what is going on with my body. There is not one place who looks into all of what is going on.” [50] In answer to the question, “Do you know of or do you have evidence of incentives being provided to medical practitioners to use or promote transvaginal mesh implants?”, the plaintiff wrote: “The mesh was promoted to me with no other option. Now I ask why I wasn’t given that option. Why was I not told that using native tissue is a possibility. Although a much bigger operation, as one needs to have tissue removed from the thigh or stomach, I myself know exactly what option I would have opted for.” [51] In other parts of her submission to the Senate inquiry, the plaintiff referred to how the pain she suffered since the operation had affected her employment. It is convenient to extract the following passages: “I have been on and off work for extended periods at a time. I have been unable to meet my children’s needs without my husband’s assistance. … -- 10 of 19 -- 11 I had so much time off work. … To say that I’ve had negative impacts because of what this mesh has done to my life, my family, my work, my mental health is the very least. … The five day weekdays, long hours has meant we now have to cut my hours back. I can no longer handle the hours. To a full day of work, I add travelling time where I can’t stand to sit for too long, it places added discomfort to my already painful body. We will go without my full wage, cut back expenses on our children and see if we can get by. … I have no choice but to inform my workplace why I have days off. Days to lie down and take the pressure off. The potential of my career is finished. The amount of sick leave I have had to take will no doubt amount to any further opportunities.” [52] On 9 October 2017, the plaintiff consulted a gynaecologist and pain specialist in Sydney. He recommended the remaining mesh be removed. He scheduled this surgery for 6 January 2018. The plaintiff decided to have the surgery performed by a more experienced gynaecologist in the United States. It appears it was not until 25 January 2018, when she spoke with the American-based gynaecologist, that the plaintiff knew that any person competent to advise had expressed an opinion that the defendant should not have used the mesh in the operation.24 Whether it appears the material facts in paragraphs [19](a), (b) or (c) were within the plaintiff’s means of knowledge before 22 December 2017 [53] By September 2015, the plaintiff had joined the class action against the mesh manufacturer. So, it appears she thought the mesh implant had caused her harm and was dangerous to her health and the health and well-being of other women. [54] By June 2017, her first recommendation to the Senate inquiry was “Ban all mesh”. From her submissions to the inquiry, it appears the plaintiff thought the defendant should have warned her about the risks associated with mesh implants. She thought, if warned, she would not have consented to the operation. She thought the defendant’s failure to warn her was common across the medical profession. She criticised medical professionals generally, including the defendant, for being unaware of the risks she thought were associated with use of mesh implants. She thought specialists “do not really want to listen” to women patients and were “desensitised to women’s concerns and symptoms”. [55] Mr Schneidewin contended that the plaintiff’s submission to the Senate inquiry demonstrated that in June 2017 the plaintiff believed that she: “had not [been] appropriately and adequately warned and informed … of the risks associated with the surgery prior to her electing to proceed, and that her predicament would have been avoided if [the defendant] had provided the information and warnings she says should have been provided.” 24 The American-based gynaecologist would perform the surgery on 27 January 2018. -- 11 of 19 -- 12 [56] He submitted that by 29 June 2017 the plaintiff “held the defendant responsible for her predicament, at least in part.” [57] It is open on the evidence to infer that the plaintiff believed these things. For the reasons that follow, this does not affect the plaintiff’s primary case for the extension, which is that the material facts in [19](a), (b) or (c) were not within her means of knowledge before 22 December 2017. The importance of the plaintiff’s beliefs is also affected by the matters considered at paragraphs [75]-[85] below. [58] Before 22 December 2017, it appears none of the treating specialists told the plaintiff that she ought to have been warned of the things referred to in paragraph [11] above. She did not know that anyone competent to express the opinion agreed with her that the defendant should have warned her. [59] Before 22 December 2017, the plaintiff did not know that anyone competent to express the opinion considered the defendant had been negligent in performing the operation. It appears only one specialist raised the topic with the plaintiff. That senior gynaecologist excluded any causal connection between what the defendant had done in the operation and the pain the plaintiff was experiencing, save for the pain in her left buttock: see [39] above. [60] It would not be until 2 November 2018 that the solicitors representing her in the class action would inform her that: “we have not considered whether you may have any other claims against your treating medical providers, however we are aware that law firms other than Shine Lawyers are currently investigating such claims.” [61] To her knowledge, there was no “steady preponderance of opinion”25 that she ought to have been warned or that the defendant had been negligent. Before 22 December 2017, the plaintiff lacked a professional medical opinion favourable to a negligence claim against the defendant. [62] From the date of the operation to 22 December 2017, the plaintiff was actively seeking treatment for a very personal and distressing condition. She had consulted many qualified specialists. She had followed medical advice. She had been referred from a gynaecologist to an orthopaedic specialist and back again, in the apparent absence of a medical specialist able to deal with the range of possible causes and remedies for her pain. She had found the specialists unaware, unwilling to listen, and desensitised to her concerns and symptoms. There does not appear to have been any effective coordination of the different specialists and allied health professionals. The nature of her symptoms would have made them difficult to explain, particularly to person without specialist medical knowledge. It is not the type of thing that she could easily share with others. Social taboos associated with sexual health likely left her quite isolated by each diagnosis. The defendant had directed her attention to the mesh product and then lawyers directed her claim to its manufacturer rather than to the defendant. 25 Wood 442. -- 12 of 19 -- 13 [63] Throughout this time, the plaintiff was not simply a patient undergoing treatment. She had family responsibilities. She was maintaining full-time employment in a responsible position. Her mental health required treatment, including medications for major depressive disorder and mood disorder. [64] It appears she had taken all the reasonable steps that, in her circumstances, she was able to take to find the cause or causes and remedy or remedies for her condition. Despite this, she had not found out the facts in paragraphs [19](a), (b) and (c). [65] It would not be reasonable to expect a person in the plaintiff’s position to have obtained another opinion from another medical professional on whether the defendant had been negligent in failing to warn her or in performing the operation, or whether it was negligence by the defendant that had caused her symptoms. The matters in paragraphs [68], [69] and [71] below are also relevant to this conclusion. [66] On the evidence, and in her circumstances, I am satisfied that it appears the facts in paragraphs [19](a), (b) and (c) were not within the plaintiff’s means of knowledge until a date after 22 December 2017. Whether it appears the material fact in [19](d) was not within the plaintiff’s means of knowledge before 22 December 2017 [67] For more than four years before 22 December 2017, the plaintiff had actively pursued measures to treat, alleviate and end her symptoms. She had consulted many medical specialists. Initially, specialists, including the defendant, recommended allowing time to pass. Later, they recommended various treatments to address her pain and its possible causes. None of the treating specialists said her pain was incurable. She had partial removal surgery, recommended by the defendant. She tried pharmacological treatments, physiotherapy, rehabilitation, acupuncture, and specialist pain management. She had orthopaedic treatments. By 22 December 2017, she had resolved to have the remaining mesh removed, on the recommendation of two gynaecologists. [68] It appears the plaintiff was advised by treating doctors that treatments – including further surgery – held out prospects of curing her condition or, at least, substantially alleviating her symptoms.26 The plaintiff’s attempts to overcome the adverse consequences of her injuries had been guided and encouraged by medical opinion. Her persistence with those attempts was not unreasonable.27 Before 22 December 2017, it appears none of the treating specialists told the plaintiff that her injury was likely to be permanent, or that it would prevent her continuing to work full-time. [69] It appears the plaintiff did not know that the symptoms were a permanent injury. It also appears she remained optimistic that the pain would be resolved. It appears she remained of this view on 22 December 2017, when she was scheduled to undergo further removal surgery in January 2018. [70] The plaintiff told the Senate inquiry she thought she would have to reduce her long hours of work and go without her “full wage”. This might have involved a loss of 26 There was no other basis on which the various medical specialists treating the plaintiff would have recommended those steps and, in some instances, undertaken them. 27 Greenhaulgh v Bacas Training Ltd [2007] QCA 327, [22] (Keane JA). -- 13 of 19 -- 14 overtime payments or working fewer than her regular hours each day or fewer than five days a week. If she had reduced her working hours, the plaintiff could claim any consequential loss of earnings caused by the defendant’s negligence. [71] However, the plaintiff continued in employment. She did not reduce her working hours. It appears the plaintiff thought she could manage her condition with pain relief and by using leave entitlements to undergo any further medical treatments and to deal with any acute episodes. She would continue to do so until her employer made her redundant and terminated her employment in July 2018. [72] It was not until 28 February 2018 that the plaintiff’s general practitioner, who had been treating the plaintiff since the operation, told her she should cease paid employment for an indefinite period. Until then, it appears the plaintiff did not know that any person competent to advise had expressed such an opinion. It would be 31 May 2018 before the rehabilitation team would say her condition was permanent. [73] In her circumstances, it would not be reasonable to expect the plaintiff, before 22 December 2017, to have done any more to find out whether her injury was permanent and whether it was likely to prevent her continuing to work. [74] In the circumstances, it appears that the material fact in paragraph [19](d) above was not within the plaintiff’s means of knowledge until after 22 December 2017. The defendant’s case that facts within the plaintiff’s means of knowledge by 22 December 2017 would have justified her bringing a proceeding [75] At the hearing, Mr Schneidewin submitted that, if the basic facts necessary to establish the defendant’s alleged negligence28 were within the plaintiff’s means of knowledge before 22 December 2017, then a reasonable person, knowing those facts, and having advice of competent persons qualified in their respective fields, would regard those facts as showing that a negligence action against the defendant would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify bringing the action and, taking into account her circumstances, it would be in the plaintiff’s interest to sue. [76] Mr Wilson submitted that, by 22 December 2017, the expense of a complex medical negligence action would not have been warranted. Any award for pain and suffering and gratuitous care would be constrained by the limits prescribed by the Civil Liability Act 2003 (Qld). There appeared to be only a modest claim for past and future economic loss. Mr Wilson submitted that, properly advised, a reasonable person in the plaintiff’s position, knowing facts sufficient to bring a negligence claim against the defendant, would not have regarded herself as having reasonable and worthwhile litigation prospects. Given the risks, the likely award of damages would not be sufficient to justify bringing a negligence claim against the defendant unless she knew her condition would be permanent, and the injury would put her out of employment or permanently reduce her ability to work for a substantial period. Without that knowledge, in Mr Wilson’s words, “the likely award of damages would not justify starting proceedings”. By this, I took him to mean it would not justify taking the inherent risk in starting a proceeding. 28 Either a breach of a duty to warn the plaintiff or negligence in performing the operation. -- 14 of 19 -- 15 [77] These conflicting contentions, led to detailed submissions about the various heads of damage and some submissions about the cost of a proceeding. Benefits of litigation [78] It appears the approximate range for an award of damages that would have been within the plaintiff’s means of knowledge, had she taken reasonable steps to obtain legal advice, before 22 December 2017, would be: (a) general damages of $4,080 to $35,100 – Counsel agreed that a court must assess general damages for an injury of the kind described in the plaintiff’s evidence in the range from injury scale value (ISV) 3 to ISV 25.29. For an injury arising between July 2013 and June 2014, the relevant values appear be $4,080 (ISV3) and $35,100 (the base amount for ISV25).30 (b) past economic loss of $31,700 – Counsel submitted the plaintiff might recover about $33,000 for past economic loss for the period from 28 November 2013 to 21 December 2018; about $6,500 per year or about $125 per week. I have adopted $26,500 for the period to 22 December 2017, plus $5,200 for interest. (c) future economic loss of $81,674.38 – For 26 years,31 applying the 5% discount rate,32 the ‘multiplier’ value would be 768.7.33 For her then known lost earning capacity of $125 per week, the plaintiff’s potential future economic loss claim would be $96,087.50 ($125 x 768.7), less any further discount for the vicissitudes of life. It appears a 15% discount for the vicissitudes of life would have been appropriate. (d) past gratuitous services of $0 – An occupational therapist tabulated the hours of gratuitous services family members provided to the plaintiff between November 2013 and December 2018. The services did not reach the statutory threshold of six hours per week for six months for such a claim.34 Mr Schneidewin submitted that if some services provided by the plaintiff’s husband for her family were for the benefit of the plaintiff (as well as other family members), there could have been periods totalling six months in which the threshold was met. If so, Mr Schneidewin said the plaintiff’s potential claim would have been $5,128.32, calculated as $32 per hour x 6 hours x 26.71 weeks. It appears such a speculative claim would not have been within the plaintiff’s means of knowledge by 22 December 2017. Even now, it appears there is no factual basis for it. (e) future gratuitous services of $0 – Mr Schneidewin submitted that, if the plaintiff had met the threshold to recover damages for past gratuitous services, then she could also have claimed future gratuitous services. If the plaintiff 29 Civil Liability Act 2003 (Qld) (CLA) s 61(1); Civil Liability Regulation 2014 (Qld) (CL Reg) sch 4, item 53.4. 30 CL Reg, sch 7, table 5. 31 From 22 December 2017 to the plaintiff’s 67 th birthday. 32 See CLA s 57; Civil Proceedings Act 2011 (Qld) s 61(4)(b). 33 See: appendix table 2 in Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (Lexis Nexis, 5 th ed, 2021), 1131 34 CLA, s 59(1)(c). -- 15 of 19 -- 16 could claim $5,128.32 for past services, then he estimated the future services claim could be worth $172,000, less a discount of 10-20% for the exigencies of life ($137,600-$154,800). Like the past services claim, it appears this claim was not within the plaintiff’s means of knowledge by 22 December 2017. Costs of litigation [79] To support her claim, it was common ground the plaintiff would require reports from five or six independent medical specialists, each of whom might be cross-examined at a trial. The defendant might be expected to rely on reports from corresponding medical specialists, who might be cross-examined. There would be evidence from her seven treating specialists and three general practitioners, some of whom might be cross-examined. The trial would take about seven days. There would be preparation for the trial, reviewing the medical records made by the ten treating doctors and the four hospitals where she underwent surgery or treatment. The statutory pre-court procedures would need to be followed, including the provision of a statement of loss and damages with associated documents. [80] The plaintiff’s costs of a proceeding, including a seven-day personal injury trial, would likely exceed $150,000, but for convenience I have adopted that sum. I infer the defendant’s costs would be of a similar order. [81] If she succeeded and obtained a costs order in her favour, the plaintiff might hope to recover half to two-thirds of her costs, in addition to damages. If she failed, the plaintiff would recover nothing and would likely have to pay the defendant between half to two-thirds of his costs. Consideration of submissions [82] So, by 22 December 2017, had the facts necessary to establish a negligence claim been within the plaintiff’s means of knowledge and had she been properly advised, it appears the plaintiff would have expected a net recovery of between $43,454.3835 and $98,474.3836 from a successful proceeding against the defendant. [83] By that date, properly advised, it appears the plaintiff would have expected a net loss of between $225,00037 and $250,00038 from an unsuccessful proceeding. [84] No litigation is free from risk. Appropriately advised, the plaintiff would have to balance the possible damages award against the risk of failure with its cost consequences. A decision to commence proceedings would also involve consideration of her financial situation. Relevantly, she ceased the pain-relieving Botox injections and pudendal nerve block therapy after March 2017 due to the expense. The highest potential net recovery was less than half the lowest potential net loss. This would have been important to a person in the plaintiff’s circumstances in December 2017. The inherent risk of litigation was not moderated at that time by a competent medical opinion that the defendant had been negligent. 35 $118,454.38 in damages, less $75,000 in unrecoverable costs. 36 $148,474.38 in damages, less $50,000 in unrecoverable costs. 37 $150,000 in costs plus $75,000 for the defendant’s costs. 38 $150,000 in costs plus $100,000 for the defendant’s costs. -- 16 of 19 -- 17 [85] Whatever the plaintiff’s personal belief or suspicion about the defendant’s conduct, the arrival of a confirmatory opinion from a qualified medical professional would be decisive in the relevant sense. Before 22 December 2017, without that opinion, it appears a reasonable person in the position of the plaintiff, who had taken appropriate advice on the known facts, and taken her circumstances into account, would not have assessed those facts as justifying and mandating in her own interests that an action should be brought against the defendant.39 [86] For the reasons at [58] to [66] above, it appears the material facts on which a negligence claim could be made were not within the plaintiff’s means of knowledge by 22 December 2017. Had I reached a contrary conclusion, that she knew enough to bring a negligence claim for her then known loss and damage, the defendant’s submission would still not have merit. The facts, as they appear to the Court, do not establish the basis for finding that a reasonable person in the plaintiff’s position before 22 December 2017, properly advised, would consider it to be in her interest to sue the defendant for negligence. Has the plaintiff shown that the justice of her case requires the extension? [87] Both parties submitted that the discretion to grant an extension of the limitation period under s 31(2) of the Act is to be exercised in accordance with Brisbane South Regional Health Authority v Taylor.40 In that case, the applicant sought an extension of time to pursue a negligence claim for advice given by a medical practitioner 17 years earlier. Over the intervening years, the health authority had no reason to suspect the applicant would bring an action. The High Court accepted that any relevant evidence had been lost. [88] In NF v State of Queensland,41 Keane JA explained: “The Brisbane South decision is concerned to ensure that an extension of time under the Act should not become the occasion for a trial which is unfair to the defendant. It is authority for the following propositions: (a) the onus is upon the applicant who has satisfied the conditions in s 31(2) of the Act to show good reason for the exercise in his or her favour of the discretion vested in the court by that provision;42 (b) the principal consideration which guides the exercise of that discretion is the concern whether a claim, which is prima facie out of time, may yet be fairly litigated;43 (c) if a fair trial is unlikely, the discretion conferred by s 31(2) should not be exercised in the applicant's favour.44” 39 NF v State of Queensland [2005] QCA 110, [2] (Williams JA). 40 (1996) 186 CLR 541. 41 [2005] QCA 110 [44] (footnotes 42 to 44 in the quotation are from his Honour’s reasons). 42 Brisbane South, 544, 547, 551. 43 Ibid 544, 548, 552-554. 44 Ibid 548-550, 554-555. -- 17 of 19 -- 18 [89] Here, it was not contended an extension would cause the defendant significant prejudice or actual prejudice of a significant kind.45 [90] The words the defendant spoke to the plaintiff in August, September and November 2013 are critical to the plaintiff’s failure to warn claim. They are also relevant to her “procedural” negligence claim. The defendant’s recollection of the consultations in this period is likely to have deteriorated over time. [91] From mid-December 2013, the defendant was aware of the adverse outcome of the operation.46 By mid-February 2014, this was confirmed by medical imaging and further surgery. At that time the defendant was a practising specialist gynaecologist. I infer he held relevant insurance, and that his insurance policy obliged him to notify his insurer of potential claims. I infer that the defendant would have notified his insurer about the adverse outcome within a reasonable time after he became aware of it. In doing so, he would have had the benefit of his recollection of the operation and the preceding consultations. The plaintiff’s medical records made by the defendant, and those addressed to him from other specialists, have been preserved. From them, it appears the plaintiff continued to consult the defendant until May 2015. He would be entitled to refresh his memory from these records and perhaps from a contemporaneous notification to his insurer. [92] I am satisfied the plaintiff’s claim can be fairly litigated. [93] The plaintiff’s claim for substantial damages against the defendant appears to be well founded. In the circumstances, she has shown that her claim is a justifiable exception to rule manifested in s 11(1) of the Act and there is good reason for the exercise of the discretion to extend the limitation period. Costs [94] Initially, the plaintiff’s counsel contended that the parties’ costs in relation to the application should be their respective costs in the proceeding. In the ordinary course that would seem appropriate. [95] The defendant opposed the plaintiff’s application. Both sides filed substantial evidence. Written submissions were exchanged. The defendant challenged the sufficiency of the plaintiff’s evidence and the admissibility of parts of it. As a consequence, the hearing on 9 February 2024 was adjourned. The parties agreed there should be no order as to the costs of the adjournment. The plaintiff filed another affidavit and further written submissions. On 15 February 2024, at a resumed hearing, the oral argument occupied a day in Court, with the defendant challenging almost every part of the plaintiff’s case for an extension. [96] The costs of the additional day, including the additional material filed on behalf of the plaintiff after 9 February 2024, should follow the event. The parties’ costs of the application to that date, excluding the costs of the adjournment, should be their respective costs in the proceeding. 45 cf Brisbane South, 544 (Dawson J), 555 (McHugh J). 46 See paragraphs [28]-[29] above. -- 18 of 19 -- 19 Final Disposition [97] For the reasons above, the Court orders that: 1. Pursuant to s 31 of the Act, the period of limitation for the plaintiff’s action is extended so that, for the purposes of this proceeding, the limitation period expired at midnight on 21 December 2018. 2. The costs of the application up to 9 February 2024, excluding the costs thrown away by the adjournment, are the parties’ respective costs in the proceeding. 3. The defendant pay the plaintiff’s costs of the application after the adjournment on 9 February 2024. -- 19 of 19 --