Buchanan-Davies v Broadbent & Anor [2010] QSC 426

SUPREME COURT OF QUEENSLAND CITATION: Buchanan-Davies v Broadbent & Anor [2010] QSC 426 PARTIES: BUCHANAN-DAVIES, Deborah Kathryn (applicant/plaintiff) v BROADBENT, Michael Russell Mark (first respondent/first defendant) AND ALLAMANDA PRIVATE HOSPITAL PTY LTD ACN 098 641 564 (second respondent/second defendant) FILE NO/S: BS 9312 of 2008 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 18 November 2010 DELIVERED AT: Supreme Court at Brisbane HEARING DATE: 6 - 9 April 2010 JUDGE: Atkinson J ORDER: That the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974. CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by the first respondent at the second respondent hospital – where applicant commenced proceedings beyond the limitation period – where applicant applies to extend the limitation period for the commencement of proceedings – where application is opposed by the first respondent on the basis that the applicant’s material fact of a decisive character relating to her right of action was within her knowledge or means of knowledge more than one year prior to her commencement of proceedings – where application is opposed by the second respondent on the basis of prejudice – -- 1 of 23 -- 2 whether the limitation period should be extended Limitations of Actions Act 1974 (Qld), s 11, s 30, s 31 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541, applied Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360, cited Carlowe v Frigmobile P/L [1999] QCA 527, cited Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335, cited Dick v University of Queensland [1999] QCA 474; [2000] 2 Qd R 476, applied HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited NF v State of Queensland [2005] QCA 110, applied Queensland v Stephenson [2006] HCA 20; 226 CLR 197, applied Raschke v Suncorp Metway Insurance Limited [2005] QCA 161; [2005] 2 Qd R 549, cited COUNSEL: G R Mullins for the applicant G W Diehm SC, with A Luchich, for the first respondent J H Dalton SC, with J E FitzGerald, for the second respondent SOLICITORS: Maurice Blackburn Lawyers for the applicant Flower & Hart Lawyers for the first respondent Minter Ellison for the second respondent [1] This is an application made pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) (“the Act”) to extend the time within which to institute proceedings for personal injuries to 19 September 2008. [2] On 19 September 2008 Deborah Buchanan-Davies filed a claim for damages alleging that injuries that arose following her undergoing surgery were caused or contributed to by the negligence and breach of contract of the first defendant, Dr Russell Broadbent, and the second defendant, the Allamanda Private Hospital (“the hospital”). [3] However, s 11(1) of the Act precludes the bringing of an action for damages for personal injury due to negligence after the expiration of three years from the date on which the cause of action arose. The cause of action arose when she underwent surgery on 4 September 2003 and so the period under s 11(1) of the Act expired on 4 September 2006. Leave was given to commence proceedings on condition that the applicant bring an application pursuant to s 31 of the Act. Some relaxation of the statutory prohibition against commencing an action after the statutory limitation period is found in s 31 of the Act. [4] Pursuant to s 31(2) of the Act, the plaintiff applied on 17 March 2009 to extend the time limit for the commencement of proceedings against the first and second defendants to 19 September 2008 (“the extension application”). The proceeding has been stayed by a court order until the extension application is determined. The -- 2 of 23 -- 3 applicant is one of nine applicants whose extension applications are opposed by the first respondent or the second respondent and sometimes both. Each application will be considered separately because each depends on its own facts but there is considerable overlap between them and there is therefore unavoidably some repetition in the separate judgments particularly in the exegesis of the relevant statutory and case law. [5] The Act restricts the rights and liabilities of potential litigants and imposes strict obligations on those who seek remedies in court once the limitation period is past but is, regrettably, less than clear in its expression. In their joint judgment on the construction of this Act, Gummow, Hayne and Crennan JJ said in Queensland v Stephenson [2006] HCA 20 at [1]: “Of the British ancestor of Pt 3 [of the Act], Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book.1 ” [6] Kirby J observed, somewhat trenchantly, at [44]-[45]: “In Ditchburn v Seltsam Ltd, I suggested that an encounter with statutory provisions similar to those under consideration in this appeal was liable to confuse judges and lawyers causing them to emerge ‘on the other side dazed, bruised and not entirely certain of their whereabouts’. The passage of 17 years, and many more cases struggling with the meaning of the statutory language, has not removed the sense of disorientation. In a competition involving many worthy candidates, Lord Reid's prize remains in place. This is so although, as Rehnquist J noted in Chardon v Fumoro Solo, ‘[f]ew laws stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitation’. This desirable goal has not been attained in Australia. This appeal affords the latest illustration of that fact. In 1986, a law reform commission report was delivered proposing changes to the then template of Australian laws. It suggested a simplified approach to applications for extension of time for commencement of actions. However, amendments were not enacted in Queensland applicable to these proceedings, despite judicial endorsement elsewhere of the need for reform. The result is that, in the present cases, the Queensland courts were obliged to struggle with the complex and obscure statutory language borrowed originally from a deficient English model.”(footnotes omitted). [7] A similar comment had been made by the Queensland Court of Appeal in Carlowe v Frigmobile P/L [1999] QCA 527 at [9]: “That the extension provisions are complex and extremely technical and have been a fertile source of litigation has been adversely commented upon by the Queensland Law Reform Commission in their review of the Limitation of Actions Act 1974.2 ” 1 Central Asbestos Co Ltd v Dodd [1973] AC 518 at 529. 2 Review of the Limitation of Actions Act 1974 (Qld), QLRC Report No 53, September 1998 at 37-39. -- 3 of 23 -- 4 [8] In Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335 at [62], I added: “The need for law reform is manifest and it has already been the subject of a Queensland Law Reform Commission Report.” [9] Nevertheless, the statute has not been amended and continues to be a fertile source of uncertainty and therefore litigation. [10] Section 31 relevantly provides: “31 Ordinary actions (1) This section applies to actions for damages for negligence … or breach of duty … where the damages claimed by the plaintiff for the negligence … or breach of duty consist of or include damages in respect of personal injury to any person … (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court – (a) 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 preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. (3) This section applies to an action whether or not the period of limitation for the action has expired – … (b) before an application is made under this section in respect of the right of action.” [11] The interpretation of s 31 is governed by s 30 of the Act, which provides: “30 Interpretation (1) For the purposes of this section and sections 31 … – a) the material facts relating to a right of action include the following – (i) the fact of the occurrence of negligence … or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence … or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; -- 4 of 23 -- 5 (v) the extent to which the personal injury is caused by the negligence … or breach of duty; (b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing – (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action; (c) a fact is not within the means of knowledge of a person at a particular time if, but only if – (i) the person does not know the fact at the time; and (ii) as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time. (2) In this section – appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.” [12] The defendants have conceded for the purpose of this application that there is evidence to establish that the plaintiff has a right of action apart from the effect of the defence founded on the expiration of the limitation period so s 31(2)(b) of the Act need not be further considered. Further, the first respondent does not oppose the application on the ground of prejudice. [13] The application is opposed by the first respondent on the basis that there was no material fact of a decisive character which was not within the plaintiff’s knowledge or means of knowledge until after the relevant date for the purposes of s 31 of the Act, 19 September 2007, ie one year before the action was commenced. The second respondent does not oppose the application on that basis. The application is opposed by the second respondent on the ground of prejudice only. Prejudice is relevant to the discretion that the court must exercise once an applicant has satisfied subsections 31(2)(a) and (b). That discretion is found in the word “may” in the conferral of power to the court in the phrase “the court may order that the period of -- 5 of 23 -- 6 limitation for the action be extended so that it expires at the end of 1 year after that date”. [14] The first question to be examined is whether the court is satisfied that there was a material fact of a decisive character which was not within the applicant’s knowledge or means of knowledge before 19 September 2007. If that question is answered in the affirmative, she will succeed against the first respondent in this extension application. If the question is answered in the negative, then the extension application against the first respondent will be dismissed. [15] The second question to be examined is whether the court is satisfied that its power to extend time should be exercised in this case notwithstanding the allegation by the second respondent that it has suffered prejudice. If that question is answered in the affirmative, the applicant will succeed against the second respondent in this extension application. If the question is answered in the negative, then the extension application against the second respondent will be dismissed. Extension application against the first defendant [16] The question to be determined in the application against the first respondent, stripped of its double negatives, is whether there was a material fact of a decisive character relating to the right of action which was not known to or within the means of knowledge of the plaintiff prior to 19 September 2007. [17] As the High Court observed in Queensland v Stephenson3 the test is a composite test, of which the practical result is that: “an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests (as in s 30(1)(b)). If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time. If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.” [18] What is a “material fact” is governed by s 30(1)(a) of the Act. It includes objectively ascertainable criteria such as the fact of the occurrence of negligence on which the right of action is founded, the identity of the person against whom the right of action lies, the fact that the negligence caused personal injury, the nature and extent of the personal injury so caused and the extent to which the personal injury was caused by the negligence. In an extension application the applicant must show that, in spite of taking all reasonable steps to find out, he or she did not know a material fact before the relevant date or that he or she did not know that a material fact was of a decisive character. 3 At [30]. -- 6 of 23 -- 7 [19] What gives material facts a “decisive character” is governed by s 30(1)(b) of the Act. That subsection looks to the response of a reasonable person to the knowledge of material facts. Material facts are taken to be of a decisive character if, but only if, a reasonable person knowing those facts, and having taken the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, would regard those facts as showing: • that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and • that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action. [20] Whether or not a material fact of a decisive character is “within the means of knowledge of a person” is governed by s 30(1)(c) of the Act, which is cast in the negative, so that a fact is said not to be within the means of knowledge of a person at a particular time if, but only if, the person does not know the fact at the 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 out the fact before that time. It is not the reasonable person which is the subject of the test but this applicant taking whatever reasonable steps were appropriate for her to have taken in the circumstances. [21] In Dick v University of Queensland,4 Thomas JA said: “As to the third step, the question was whether the existence of an alternative safe system of work was “within the means of knowledge” of the plaintiff during the relevant period. His Honour observed that it is not enough that the plaintiff did not know; it is a question of his means of knowledge. His Honour then emphasised that it is the means of knowledge of the plaintiff which are relevant and not the means of knowledge of a hypothetical reasonable man, citing the remarks of Lord Reid in Smith v Central Asbestos Co. such as “the plaintiff must have taken all such action as it was reasonable for him to take to find out” and “… this test is subjective. We are not concerned with ‘the reasonable man’”. Dawson J. observed that s. 58(2) [Qld s. 30(1)(c)] unlike s. 57(1)(c) [Qld s. 30(1)(b)] ‘makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense’.”(footnotes omitted). [22] This factor was further explained by Keane JA in NF v State of Queensland [2005] QCA 110 at [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 4 [2000] 2 Qd R 476 at 486-487. -- 7 of 23 -- 8 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.” Material fact of a decisive character not within her means of knowledge [23] In order to ascertain whether the applicant has satisfied the court that there was a material fact of a decisive character which was not known to her or within her means of knowledge before 19 September 2007, it is necessary to examine the facts of the matter both before and after that date. Before 19 September 2007 [24] The applicant, Deborah Buchanan-Davies, who was born on 11 April 1963, underwent bilio-pancreatic diversion (BPD) surgery conducted by the first respondent, Dr Broadbent, at the hospital on 4 September 2003. She was 40 years old at the time of the surgery. [25] BPD surgery is described as a type of bariatric weight loss surgery involving the removal of approximately three-quarters of a person’s stomach and the diversion of parts of the small intestines. As a result of BPD surgery, a person absorbs less fat and other nutrients and is unable to eat large quantities of food and consequently loses weight. [26] Prior to undergoing the BPD surgery, the applicant apparently had a history of hypertension, diet-controlled diabetes, gastro-oesophageal reflux, gall bladder disease, sleep apnoea and intertrigo. She had been overweight for many years and had tried various weight loss methods without success which eventually prompted her to consider surgical weight loss options. [27] The applicant first consulted Dr Broadbent on 30 July 2003 in relation to weight loss surgery. At the time of the consultation, she weighed approximately 125 kilograms. At this consultation Dr Broadbent recommended the applicant against gastric banding surgery telling her that he offered the “Rolls Royce of treatments”, BPD surgery. Dr Broadbent told the applicant that to be considered for the surgery, she had to be compliant with his diet and exercise regime. He informed her that it was a condition of the surgery that she follow all of his instructions. In the lead-up to the surgery the applicant was led to believe by Dr Broadbent that her body was different to other bodies in the way it broke down fat and that if she did not comply with the regime, she would face complications. [28] Before the BPD surgery, the applicant, who lived in Canberra, stayed with a former patient of Dr Broadbent, Lee Quist, who provided counselling and monitored the applicant’s compliance with Dr Broadbent’s diet and exercise regime. Following those instructions, she did not eat fats, proteins, meat or sugar and increased her level of exercise. Ms Quist regularly took notes on the applicant’s compliance with Dr Broadbent’s instructions and reported back to Dr Broadbent. The applicant also -- 8 of 23 -- 9 attended regular sessions of a support group created by Dr Broadbent for BPD patients, called OSSIE (Obesity Surgery Support Education and Information) which met regularly at the hospital. [29] Just prior to the surgery, on 2 September 2003, the applicant signed a consent form, acknowledging that the operation depended on “patient compliance”. In signing the consent form, the applicant agreed that post-operatively she would eat a restricted diet consisting of 3 x 50ml fat-free meals per day until her ideal weight was reached, after which 3 x 100ml reduced-fat meals were allowed. She also agreed to carry out the exercise programme exactly as requested by Dr Broadbent and recognised that the likelihood of success of the surgery was good provided that she complied and continued to comply with all of Dr Broadbent’s instructions. [30] She was introduced to three patients who were in hospital having undergone the surgery. One was very unwell and the applicant was told by Ms Quist that that was because she had not complied with the dietary requirements and had eaten fatty food. [31] The applicant was admitted to the hospital on 3 September 2003 and underwent the BPD surgery together with a sleeve gastrectomy, duodenal switch, cholecystectomy and division of adhesions on 4 September. Post-operatively, the applicant had a fluctuating temperature and felt nauseated. She was given intravenous fluids, ice cubes to suck as well as small quantities of fluids and pureed fruit. She saw another patient who had undergone BPD surgery who was acutely sick. Ms Quist told the applicant that that was because the patient had been non-compliant and had eaten the wrong foods. [32] The applicant was discharged on 14 September 2003 with a drain in situ, febrile and feeling nauseated. In the period immediately after the surgery, the applicant stayed in Queensland. She continued to have a high temperature and was unable to eat or drink. She informed Dr Broadbent of this a week after the surgery and he removed two abdominal drains and staples and advised her to activate her exercise regime by walking further and faster. Dr Broadbent told the applicant that her condition was due to her metabolism kick-starting. [33] The applicant gave evidence that she felt Dr Broadbent was not listening to her concerns and so she did not consult with him again. At the hearing, when asked by defence counsel why she had not consulted with Dr Broadbent again, the applicant said that she had telephoned Dr Broadbent and was told by him not to ring and that he was a barrister as well as a doctor. If this allegation be true (and there is no reason to disbelieve it) then it would suggest his unsuitability to remain on the register of legal practitioners and I will refer the matter to the Legal Services Commissioner for further investigation. I shall send each of the nine decisions made on the applications which were heard together as the combination of allegations may suggest a pattern of unsuitable conduct. [34] After telephoning her usual general practitioner in Canberra, Dr Cross, the applicant returned to her home in Canberra on 18 September 2003. She said Dr Cross advised her against flying but she felt that she had no other choice as she wanted to get some help and be with her family. At home, she was able to be cared for by her husband. [35] Upon her return to Canberra, the applicant consulted with Dr Cross and underwent several blood tests. She presented to the emergency department of the Canberra -- 9 of 23 -- 10 Hospital on 23 September 2003 suffering post-operative complications including pain, fever and discharge from the wound site. She was admitted to the hospital on that day and found to have two bacterial infections, methicillin-resistant staphylococcus aureus (MRSA) and peptostreptococcus. She was also diagnosed with an intra-abdominal abscess and was placed on a course of antibiotics and intravenous fluids. Whilst at the Canberra Hospital, the applicant was seen by a dietician and placed on a new high-protein diet and supplements. The applicant was discharged from the Canberra Hospital on 1 October 2003. [36] The applicant telephoned the second respondent hospital on 3 November 2003 and informed them that she had been discharged from the hospital with a fever and unwell and that her admission to the Canberra Hospital had shown that to be “golden staph” and pseudomonas. She said that she had come into contact with four other patients who experienced post-operative complications. A note was made of this telephone conversation by a hospital staff member and is exhibited to the affidavit of Christine Samin, formerly the Director of Nursing at the hospital. The applicant was not able to recall this telephone conversation but for the purposes of this application I accept that it occurred. Ms Samin said that she became aware at about this time that “the Plaintiff had told someone at the Hospital that she had spoken with other patients of the First Defendant who had undergone BPD surgery and that this group of ex-patients were making threats of legal action at that time.” However, there was no evidence that the applicant attributed her own or indeed any one else’s problems to negligence. [37] Once out of hospital, the applicant reverted to Dr Broadbent’s recommended diet and exercise regime. She said she did this following the advice of Dr Cross, who had been in contact with Dr Broadbent. The applicant continued with the diet for some months before she presented to Dr Cross in May 2004 suffering heart palpitations and constant diarrhoea. Dr Cross advised the applicant to continue following Dr Broadbent’s instructions. [38] Throughout 2004 the applicant continued to consult Dr Cross. She said she was constantly fatigued, had heart palpitations, sore joints, night sweats and that her hair and nails fell out. Amongst other things, the applicant was diagnosed with anaemia, nutropenia, depression and Post Traumatic Stress Disorder. In July 2005 the applicant was admitted to the Queanbeyan Mental Health Unit. [39] During the period from 2005 to 2007 the applicant was admitted to the Canberra Hospital several times. On these occasions, she was seen by a dietician and placed on a new diet. At the hearing, the applicant said that whenever she followed the advice of a dietician, she would suffer from severe cramps, vomiting and diarrhoea. As a result of this, she would revert to Dr Broadbent’s dietary advice whenever she returned home. In her affidavit, the applicant said that she believed that if she followed Dr Broadbent’s advice, all her problems would eventually go away. After 19 September 2007 [40] The applicant said that she first began to think that her post-operative complications may have been due to negligence when she saw a television report on Dr Broadbent and his other patients on 60 Minutes on 14 October 2007. She said that prior to this she believed that it was her non-compliance with Dr Broadbent’s strict diet and exercise regime that had led to her complications. -- 10 of 23 -- 11 [41] In December 2007, the applicant was admitted to Canberra Hospital twice suffering abdominal and shoulder pain and diarrhoea. She was also treated for a bowel infection and had significant difficulty eating for a period of ten days. Following that admission to hospital, the applicant said that she abandoned the first respondent’s diet permanently and took the view that her complications were due to negligence on the part of Dr Broadbent and the hospital. [42] The applicant first consulted Maurice Blackburn Lawyers on 9 November 2007 in relation to a medical negligence claim. On 11 January 2008 she instructed Maurice Blackburn to investigate whether her health complications had been caused by the negligence of Dr Broadbent and/or the hospital. [43] On 12 May 2008 the applicant’s solicitors served an Initial Notice on the respondents pursuant to the Personal Injuries Proceedings Act 2002. Solicitors for the second respondent, Minter Ellison, advised that the Notice was served out of time and requested that the solicitors for the applicant provide a reasonable excuse for the delay. [44] On 23 June 2008 the applicant’s solicitors advised the second respondent’s solicitors that the applicant’s excuse for delay was that she had serious medical problems following the BPD surgery and had been concentrating on recovery; and that she had thought that she was the only person who had suffered post-operative complications and did not consider that they may be due to negligence until she saw media reports. [45] Ms Buchanan-Davies’ claim and statement of claim against Dr Broadbent and the hospital was filed on 19 September 2008. In her statement of claim, as amended on 17 November 2009, the applicant claims that it was a term of the contract between the applicant and the first respondent and/or the second respondent and/or it was the duty of the respondents that the respondents would exercise reasonable care and skill in the provision of treatment and advice and that the relevant treatment, advice and surgery provided would be commensurate with that of a competent and skilled surgeon and/or medical facility. The applicant alleges that the duty owed by the second respondent was non-delegable. She alleges that her injuries were caused or contributed to by the negligence and/or breach of contract of the first and/or second respondent. [46] The particulars of the breach of contract and negligence are: • She was discharged from hospital despite being unstable and at risk of developing serious complications following the BPD surgery; • The first and/or second respondent failed to monitor her post-surgery or provide her with an appropriate nutrition plan so as to prevent her from developing malnutrition and other complications following the BPD surgery; • The first and/or second respondent failed to provide her with appropriate nutritional advice both before and after the BPD surgery, failed to advise of the likely complications and failed to exercise reasonable care and skill in the provision of advice, patient selection, surgery and treatment; • The first and/or second respondent failed to give her adequate and correct warnings as to the risks associated with BPD surgery particularly in regard to -- 11 of 23 -- 12 accurately explaining the risk of morbidity and the importance of nutritional advice; • The first and/or second respondent failed to consult with or refer her to other medical practitioners for treatment following BPD surgery; • The first and/or second respondent failed to prevent her developing surgical site infection and MRSA infection by not undertaking adequate preparation for surgery and adequate post-surgical treatment; and • The first and/or second respondent failed to adequately prepare her for surgery by clipping body hair and/or providing two antiseptic showers. [47] The applicant’s solicitors met with Associate Professor Simon Woods, a general surgeon specialising in surgical treatment of obesity, in Melbourne on 4 March 2009 to seek an expert opinion on the BPD surgery performed by Dr Broadbent on the applicant and others. A memorandum in respect of this meeting was prepared by the applicant’s solicitors and reviewed and signed by Dr Woods. That memorandum said that although Dr Woods had not seen the surgical technique performed by Dr Broadbent and therefore thought that it was difficult to critique, he could identify four salient points in relation to Dr Broadbent’s performance of the surgery: 1. Dr Broadbent made the patients vulnerable pre-operatively by his nutrition, dietary and exercise regimen. The patients came to major surgery compromised, in a weakened state and with a reduced ability to heal; 2. He exacerbated that vulnerability post-operatively by giving them inappropriate nutritional advice and failing to maintain standard nutritional parameters; 3. He generally refused to request or accept advice from other practitioners. Even when he did acknowledge that the patient had nutritional deficiencies he did not provide adequate care; 4. He turned a blind eye to obvious symptoms such as fevers and repeatedly blamed the patient for not complying when he should have been investigating the cause of the symptoms. [48] The memorandum also said that Dr Woods was of the opinion that: • Dr Broadbent failed to increase the protein intake of his patients pre- operatively and post-operatively despite high protein being a fundamental requirement for a healthy immune system and post-operative wellbeing; • It was inappropriate for Dr Broadbent to feed some patients temporarily via a naso-gastric tube where there are problems with the stomach (the tube should be placed into the small bowel); • Dr Broadbent’s pre-operative regimen was fundamentally flawed as patients would come into the operation protein and vitamin deficient; -- 12 of 23 -- 13 • Dr Broadbent promoted a vegan diet which is just possible to maintain post- operatively if the patient eats enough vegetable proteins. Dr Broadbent, however, discouraged patients from eating those vegetable proteins; • Dr Broadbent exhorted his patients to exercise but insisted on a protein deficient diet. A person cannot exercise and maintain muscle mass unless the patient maintains protein; • Dr Broadbent provided “seriously misleading” information to his patients on food composition; • A short-term problem with Dr Broadbent’s conduct was that patients deficient in protein and vitamins would have their recovery hampered and a reduced ability to cope with complications and infection. The most common short-term risk of the operation is staple line leakage; • There are several long-term problems that may arise following BPD surgery – BPD surgery deliberately gives the patient malabsorption and as a result, adequate protein is needed otherwise the patient will become malnourished; a serious vitamin A and vitamin D deficiency may lead to reduced bone mass and possible osteoporosis, dysfunction of the immune system, depressive symptoms and increased risk of a variety of cancers. [49] Dr Woods recognised that despite its inherent risks, the long term results of BPD surgery for obesity are very satisfactory and that there was no reason why patients should not be back at work and living normal lives following appropriate monitoring. [50] Specifically in relation to the applicant, Dr Woods thought that it was more probable than not that the incorrect nutrition and dietary advice of Dr Broadbent had contributed to the applicant’s post-operative complications. The applicant’s lack of protein and vitamins considerably lessened her capacity to recover from a major surgical procedure and exposed her to a greater risk of infection. She was discharged from hospital after her initial surgery despite being febrile and nauseated. Her subsequent malnourishment was caused by continuing to follow Dr Broadbent’s inappropriate advice. According to Dr Woods, “if she had been given appropriate advice and treatment she would probably not suffer from the ongoing problems that she has and would probably have been physically fit to return to full time work.” [51] The memorandum from Dr Woods was supported by a report dated 14 March 2009 from a Professor of Surgery experienced in the management of serious intra- abdominal conditions, Professor David Morris, who expressed the opinion that “discharge of a patient with a swinging pyrexia after major abdominal surgery is inappropriate and below the level expected of a general surgeon in this country in 2003”. He was also of the opinion that the protein starvation recommended by Dr Broadbent in the immediate pre-operative and post-operative period was likely to increase the risk of post-operative complications and sepsis. [52] The applicant’s solicitors submitted that the expert evidence of Dr Woods suggesting that the advice and treatment of the first respondent was below the standard expected of a competent and skilled surgeon is the material fact of a -- 13 of 23 -- 14 decisive character which was discovered by the plaintiff after the expiration of the limitation period. [53] The first respondent, Dr Broadbent, submitted that the court should dismiss the application on the basis that the applicant’s material fact of a decisive character relating to her right of action was within her knowledge or means of knowledge at a time more than one year before the commencement of the proceedings. In particular he referred to what he asserted she knew before 19 September 2007: • She had been constantly unwell following her BPD surgery; • She was aware she had suffered substantial post-operative complications; • She was aware of other BPD surgery patients who had suffered complications which she did not believe were attributable to “non-compliance”; • She did not continue to consult the first respondent as a result of her post- operative complications; and • She made a complaint to the second respondent about her treatment. [54] At the hearing, it was put to the applicant that she first became aware some time between September and November 2003 that other BPD patients had suffered complications. That may be so. However, the fact that she rang the hospital to report that she had suffered from a post-operative infection and knew of others who had, does not mean that she knew that the complications were due to negligence by Dr Broadbent. In her affidavit sworn 9 June 2009, the applicant said that prior to seeing the media reports in October 2007 she had been aware that one person had died following BPD surgery. The applicant said that she had thought this person had died because of kidney failure and non-compliance with Dr Broadbent’s instructions. She thought that she and others had suffered ongoing complications due to non-compliance with his instructions rather than because of his negligence. [55] The applicant must show that there was a material fact of a decisive character relating to the right of action which was not known to or within her means of knowledge before 19 September 2007. [56] The material facts in this case included the occurrence of negligence on which the right of action is founded, the fact that the negligence caused personal injury and the nature and the extent to which the personal injury was caused by the negligence. Prior to seeing the telecast of the Sixty Minutes report, Ms Buchanan-Davies was unaware that the injuries to her may have been caused by negligence on Dr Broadbent’s part. She then instructed solicitors who obtained a report from Dr Woods who expressed the opinion that Dr Broadbent’s negligent advice and treatment was the cause of her ongoing ill-health. All of this happened after 19 September 2007. [57] Those facts were of a decisive character because they showed her that an action on the cause of action which she then knew she had (that is that the negligence of Dr Broadbent had caused her personal injury) would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on that cause of action; and that she ought in her own interests and taking her circumstances into account to bring an action on that cause of action. She did -- 14 of 23 -- 15 not know before 19 September 2007 that her injuries were caused by Dr Broadbent’s negligence. As Thomas JA held in Dick v University of Queensland [1999] QCA 474 at [20]: “The distinction between knowledge that someone has caused an injury and knowledge that that person has caused it negligently is fundamental.” [58] Had she taken all reasonable steps to find out that fact? She did not suspect that Dr Broadbent was negligent and it was this negligence that had caused her injuries. Rather she believed that it was her failure to follow his instructions that was causing her continuing post-operative symptoms and complications. Although she consulted other medical practitioners, none of them suggested that her injuries were caused by negligent treatment by the first respondent. A patient who is told that she will suffer complications if she does not follow her surgeon’s advice and who seeks treatment from other medical practitioners who do not tell her that her symptoms are caused by the surgeon’s negligence has taken all the steps that it is reasonable for a person in her position to take. She knew that other patients had also suffered problems after their BPD surgery but that does not mean that she knew that that was due by Dr Broadbent’s negligence, rather, as she said in her evidence, she knew that there were risks in any operation. [59] A patient who suffers post-operative complications, even one who knows others have suffered similar complications, would not necessarily suspect that that was due to negligence by the surgeon. That was particularly so in this case where the surgery undergone was complex and patients were warned that they would be likely to suffer complications if they did not strictly follow the surgeon’s instructions. She ceased seeing Dr Broadbent, not because of her post-operative complications, but because she thought he was not listening to her and she needed the care and support of her husband who was interstate. Conclusion [60] The applicant has therefore shown that there were material facts of a decisive character relating to the right of action which were not known to her or within her means of knowledge before 19 September 2007. The first respondent did not suggest that there were any discretionary reasons to refuse the application; it is appropriate to grant the orders sought in the application against the first respondent. The period of limitation for bringing proceedings against the first respondent should be extended to 19 September 2008. Extension application against the second defendants [61] The first respondent conceded that there is evidence to establish that the plaintiff has a right of action against him apart from the effect of the defence founded on the expiration of the limitation period and the applicant has satisfied the court that there were material facts of a decisive character relating to the right of action which were not known to her or within her means of knowledge until one year before the litigation commenced. Consequently the applicant will be able to litigate her claim against the first respondent. This has some relevance to her claim against the second respondent. -- 15 of 23 -- 16 [62] In Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 372, Clarke JA, with whom Kirby P and Hope JA agreed, held, in respect of a case involving the limitation period where there was more than one possible defendant: “According to well recognised principles where a plaintiff, who has sued multiple defendants one or more of whom may be liable, shows prima facie that at least one defendant may be responsible, the court is bound to hear the whole of the evidence before entertaining submissions by any other defendant that no case has been established against him. This is so even if the plaintiff has not called any evidence demonstrating the fault of the particular defendant. The rationale of the rule, as explained in Menzies v Australian Iron & Steel (1952) 52 SR (NSW) 6269 WN (NSW) 68, is that if the rule were otherwise the defendant against whom a prima facie case was shown might escape liability by addressing evidence to the effect that the defendant against whom the case had been dismissed was the party who was actually at fault. Indeed that is what occurred in Hummerstone v Leary [1921] 2 KB 664, the case cited in Menzies. Obviously that result would be inimical to the interests of justice.” [63] This passage was cited with approval by Keane JA in Raschke v Suncorp Metway Insurance Limited at [2005] 2 Qd R 549 at [28]. [64] As the second respondent did not seek to contest that there was a material fact of a decisive character that was not known to the applicant or within her means of knowledge until 19 September 2007, it is unnecessary to traverse the evidence led to establish that in the case against the second respondent. [65] The question to be examined is whether the court is satisfied that its power to extend time should be exercised in this case notwithstanding the allegation by the second respondent that it has suffered prejudice. [66] An applicant who satisfies the elements of s 31(2) of the Act is not entitled as of right to an order. The applicant must still justify the exercise of the court’s discretion in his or her favour. The principal discretionary ground which might prevent an order being made to allow such an applicant to commence proceedings outside the limitation period is prejudice that will be suffered by a defendant if such an order is made. The onus remains on the applicant to establish that the discretion should be exercised in her favour. As Keane JA held in HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 at [57]: “Even where the requirements of s 31(2) have been satisfied, the burden remains on the applicant for relief to show good reason for the favourable exercise of the discretion. An applicant who is unable to show that a fair trial can take place notwithstanding the delay which has occurred will not discharge that burden.” [67] The leading case on the effect of prejudice on the court’s discretion is Brisbane South Regional Health Authority v Taylor [1996] HCA 25. Toohey and Gummow JJ explained it at 548-549 as follows: “A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to -- 16 of 23 -- 17 thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”(footnotes omitted). McHugh J held at 555: “If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, [the medical practitioner] might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.” [68] To understand the prejudice which the second respondent said it will suffer if an extension order is made against it, it is necessary to consider the evidence sought to be led against it. The applicant led expert evidence by Catherine Sharp, an experienced nurse, to endeavour to prove that the second respondent was in breach of its contract, and failed in its non-delegable duty, to exercise reasonable care and skill in the provision of treatment and advice and that the relevant treatment, advice and surgery provided would be commensurate with that of a competent and skilled medical facility. [69] In reports dated 30 September 2009 and 22 October 2009, Ms Sharp opined that the care provided by the staff of the second respondent fell below a reasonable standard expected of a private hospital, and so failed to prevent a surgical site infection, abdominal abscess, sepsis and the acquisition of MRSA, in the following ways: • By clipping rather than shaving the applicant’s body hair prior to surgery - this was said to increase the applicant’s risk of surgical site infection; • By providing one rather two antiseptic showers (one the night before and one the day of the surgery); • By failing to care for wounds adequately; • By failing to notify senior staff of concerns about the applicant’s wounds, high temperature and non-healing surgical site; -- 17 of 23 -- 18 • By failing to advise senior nursing management of Dr Broadbent’s plan to discharge the applicant despite her high temperature and low haemoglobin levels; • By failing to arrange a community nurse to visit the applicant after her discharge with a drain in situ and wound dressings; and • By failing to ensure that the applicant was being monitored by a dietician pre and post-operatively. [70] The factual basis for Ms Sharp’s opinion is found in her examination of the comprehensive records kept by the hospital, including the applicant’s medical chart which includes detailed and extensive notes made by the nursing staff. She was not specifically cross-examined about her report about the applicant. [71] The solicitors for the second respondent have endeavoured to identify and contact the nursing staff responsible for the care of the applicant in order to obtain statements regarding their recollection of their involvement in the applicant’s care. Those enquiries have identified nurses who have been contacted and some who had not been contacted by the time of the hearing of the extension application. [72] Of the nursing staff directly involved in her care, the second respondent has been able to contact and interview Elizabeth Sellars, Sharan Goss and Sheena Nuttall. [73] Ms Sellars reviewed the applicant’s chart and confirmed that her signature appeared in the chart at about the time of the applicant’s discharge from hospital. She had no independent recollection of her except that she remembered her name. She did not recall any concern about the patient but said that if she did have any concerns she would have contacted the treating doctor and documented the discussion and any orders made in the patient’s chart. In relation to the discharge of patients, the standard practice was that the doctor made the decision to discharge after reviewing the patient. A nurse was often present but the decision was the doctor’s alone. If a nurse considered that discharge was inappropriate at that time, the nurse would speak to the Nurse Unit Manager or hospital co-ordinator to discuss the nurse’s concerns. It was standard practice to record that discussion in the patient’s chart. [74] Her evidence was that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. Her standard practice was that anything of significance to the treatment and care of the applicant would have been recorded in the notes. She relied on her general practice in saying that, as she had no actual memory to be able to tell if anything was missing. [75] Ms Goss’s evidence was to similar effect except she did not have any independent recollection of the applicant at all. She raised any concerns she had about a patient with the treating doctor and recorded that and any orders made in the chart. She agreed in re-examination that if there was something missing from the notes she would not now be able to recall that. [76] Ms Nuttall did not have any independent recollection of the applicant but was able to give evidence of Dr Broadbent’s pre-operative requirements and hospital procedures at the time. Her evidence was that if she had any concerns about a patient she raised them with the Nurse Unit Manager. Her evidence was that her -- 18 of 23 -- 19 notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. Anything of significance to the treatment and care of the applicant would have been recorded in the notes. [77] She completed the hospital’s standard pre-operative checklist with regard to the applicant’s surgery on 4 September 2003 which included a tick against the item “operative area shaved”. In another case she was able to give evidence based on the hospital chart. She agreed that, based on her notes on another patient, Ursula MacLeod, who died prior to the applicant’s surgery, she was able to give evidence at the Medical Board hearing into her death. [78] The Nurse Unit Manager at the time was Judith Bryceson. She worked at the hospital from 1989 to 2007 and was a Nurse Unit Manager between June 2003 and May 2007. Ms Bryceson was able to give detailed evidence of the nursing regime required by the first respondent including pre-operative and post-operative care. For each patient a pre-operative checklist was completed as well as a comprehensive care-track document for BPD surgery which tracked the patient’s care before and after surgery. [79] There are good clinical reasons for this. Patients in hospital are nursed around the clock by different nurses on different shifts and so it is important that all relevant and significant details are recorded. Nurses cannot be expected to retain any detailed recall apart from what is recorded in the patient chart. This explains why it is important that comprehensive notes are kept in the patient chart and reduces the prospect that the nursing staff will have to rely on their memory. [80] Ms Bryceson’s evidence was that Dr Broadbent had a very strict regime for how he wanted his BPD surgery patients to be nursed, particularly in relation to diet and mobilisation. Dr Broadbent required patients to mobilise as soon as they were awake and stable after surgery. He also had a very strict regime with regard to fluids and diet involving initially ice to suck up to 30mls per hour, graduating to clear fluids at 30mls per hour, graduating to 50mls of fat-free pureed diet 3 times a day plus clear fluids at 30mls per hour. He was very clear that his instructions in relation to the patient’s diet were to be followed exactly. [81] Ms Bryceson’s evidence was that prior to going to surgery Dr Broadbent’s patients were to be showered and the operative area shaved or clipped. She did not recall whether this was the case for the applicant but the general practice was that the night before surgery Dr Broadbent’s patients were showered with an antiseptic solution and this was repeated on the morning of their surgery. Also generally the patient’s hair was removed from their nipples to their pubic area with a pair of clippers. [82] Ms Bryceson said that after surgery Dr Broadbent was very precise and strict about what care was to be provided to his patients. Any concerns that a nurse may have had about a patient’s condition for example vital signs, abnormal pathology results, food intake or low outputs had to be either raised with her and she would contact the doctor, or with the doctor directly. She did not recall any conversations with nursing staff about the applicant or any queries or concerns regarding the applicant being raised with her by the nursing staff. Neither she nor any other nurse was -- 19 of 23 -- 20 permitted to involve other practitioners in the patient’s care without the approval of Dr Broadbent. [83] Her evidence regarding the applicant is that she remembers her name but could not recall any specific details about her care at the hospital or any queries being raised about her. She agreed in cross-examination that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. Anything of significance to the treatment and care of the applicant would have been recorded in the notes. She would have documented any concerns that she had or that were raised by other staff. She would also have documented it if the nursing staff thought the patient needed some other care or had requested another opinion. She conceded in re-examination, however, that it was possible that something may have been missed. [84] The affidavit of Christine Samin, who was the Director of Nursing at the second respondent from 1997 to 2007, demonstrated that a complaints database was established at the hospital in 2002. Any complaints received by the hospital were logged in that database. There is therefore a complete database of complaints made by patients after they were discharged, whether the complaint was made orally or in writing. The hospital has therefore been aware since November 2003 that the applicant was concerned that she was discharged from the hospital with a fever and unwell and that her admission to the Canberra Hospital had shown that to be “golden staph” and pseudomonas. The complaints register shows that her complaint was investigated and referred to an infection control meeting. [85] The medical chart also showed that another nurse who was involved in the care of the applicant around the time of her admission to the hospital was Tanya B Hansen. The second respondent does not hold any contact details for her as she was an agency nurse. The Queensland Nursing Council (QNC) has an active listing for a Tanya Banks Hansen. The solicitors for the second respondent requested the QNC for Ms Hansen’s contact details or that they pass on the solicitors’ contact details to Ms Hansen and ask her to contact them. That request was made on 29 March 2010 and no response was received by 30 March 2010. The solicitors had not asked the second respondent for the details of the agency used by them at the time. However, the second respondent’s solicitor gave evidence that Nurse Hansen’s evidence may not be relevant because the evidence she might be able to give was dealt with by other witnesses on behalf of the second respondent. [86] The second respondent also called evidence, in each of the cases involving this hospital, of its relationship with Dr Broadbent and other records kept by the hospital. [87] Christine Samin was the Director of Nursing at the hospital from 1997 until 2007. She provided evidence on affidavit about the relationship between Dr Broadbent and the hospital and Dr Broadbent’s medical orders. David Millen, the current Manager of Clinical Services at the hospital, also provided an affidavit in relation to Dr Broadbent’s medical orders. [88] As the Director of Nursing at the hospital, Ms Samin was required to attend meetings of the Medical Advisory Committee, the committee responsible for accrediting specialist medical practitioners, otherwise known as Visiting Medical Officers (VMOs). -- 20 of 23 -- 21 [89] The first respondent had been accredited as a VMO at the hospital for a number of years prior to Ms Samin’s appointment as Director of Nursing. The first respondent held clinical privileges for general surgery which entitled him to admit patients to the hospital for the purpose of undergoing elective and emergent surgical procedures. Dr Broadbent was not an employee of the hospital and there was no employment contract in existence between the hospital and the first respondent. The hospital did not remunerate him and he invoiced patients directly for his medical services. [90] VMOs at private hospitals operate their own medical practice independent of the hospital. They utilise the hospital facilities and nursing staff for patients who require admission and treatment at a private facility. In order for a patient to be admitted to the hospital, they must be referred for admission by a credentialed VMO. [91] In the case of the first respondent, he had allocated surgical operating time at the hospital and would book patients on his surgical list as required. He would determine the date of their surgery according to his set surgical list and he would then notify patients of the date and time of their admission to the hospital and obtain their consent to undergoing the nominated procedure. [92] The hospital required the first respondent’s patients to sign a generic hospital consent acknowledging that they had engaged the first respondent to undertake the nominated procedure, that they understood that he was “not an employee of the hospital …” and that the hospital had not given the patient “any advice as to the medical treatments/procedures to be undertaken …”. Ms Samin attached a copy of the consent form signed by the applicant on 3 September 2003. [93] Details of the patient bookings would then be faxed by the VMO’s private practice rooms to the hospital. Any emergency procedures that could not be added to the surgical list would be arranged by the first respondent in collaboration with the hospital coordinator and/or the theatre manager. [94] Following the patient’s admission to the hospital, a nursing history was undertaken which detailed the reason for the patient’s admission, his or her medical and surgical history and information relevant to discharge planning. A copy of the applicant’s pre-admission nursing history was exhibited to Ms Samin’s affidavit. [95] Apart from this discussion by nursing staff with the patient pre-operatively, there was no discussion with the patient regarding the medical details of the proposed surgery. That was the sole responsibility of the first respondent. The first respondent had responsibility for the medical decisions made regarding the patient’s management while admitted to the hospital. The hospital did not supervise any of its VMOs in the management of their patients or the performance of surgical procedures undertaken by them. [96] The patient was prepared for surgery in accordance with the orders given by the patient’s admitting VMO. The medical orders detailed the VMO’s instructions for the pre-operative preparation of patients, nurse initiated medications and post- operative instructions. [97] Exhibited to Ms Samin’s affidavit were Dr Broadbent’s medical orders for all procedures from January 2001. Under the heading “Specific Pre-op Preparation”, -- 21 of 23 -- 22 was the instruction to “shave all operation sites”. Beside the instruction to shave all operation sites was drawn the symbol <. The top line led to a note dealing with the shaving requirements for laparoscopic hernia and the bottom line to a note “See specific instructions for instructions for Bilary Pancreatic Diversion and major Colonic Surgery”. In context, this appears to be a reference to Dr Broadbent’s instructions for shaving for BPD and major colonic surgery. Ms Samin could not recall whether specific medical orders ever existed for BPD surgery and said she understood that the hospital had been unable to locate such orders. Ms Samin said she understood that the hospital had attempted to locate copies of the medical orders in place for the first respondent prior to this time, but had been unable to do so. She was not able to recall whether any medical orders existed prior to January 2001. Any such order would not, in any event, be relevant to the applicant’s surgery which occurred after that date. [98] Mr Millen said that he had caused a search to be undertaken of the archived files of medical orders held by the hospital for visiting medical officers and had been advised that the hospital had been unable to locate any written “specific instructions” from the first respondent in relation to BPD surgery. [99] Ms Samin’s evidence was that on admission to the hospital, the patient was considered to be the sole responsibility of the admitting VMO. If other medical or allied health care providers were required to be involved in the patient’s management, it was at the discretion of the VMO, who must make the appropriate referrals directly to such other doctors who were credentialed at the hospital. [100] The hospital did not employ dieticians whilst Ms Samin held the position of Director of Nursing. If a dietician was required to become involved in the patient’s management, a referral was made by the VMO to a dietician credentialed by the hospital. Dieticians who were credentialed by the hospital operated their own private practice independent of the hospital and were not employed or remunerated by the hospital. [101] The decision to discharge a patient must be made by the admitting VMO. Nursing staff did not have the authority to discharge patients from the hospital. Ms Samin’s evidence was that following discharge, the hospital had no ongoing role in the patient’s care. Her affidavit exhibited the Nursing Discharge Summary relevant to the applicant. [102] The applicant submitted that there is no prejudice to the second respondent: that the failure of nurses to remember the specific details of nursing care is not sufficient prejudice to conclude that a fair trial can no longer be conducted. The second respondent submitted that the court should not exercise its discretion to grant leave to extend the limitation period because of the prejudice occasioned to the hospital which prevented the matter being tried fairly. [103] There is no doubt that litigation provides difficulties if it is conducted after the limitation period is past and yet the legislation provides that the court may extend time. The question is whether the applicant has satisfied me that notwithstanding any prejudice caused by the delay it is possible to have a fair trial. To do so the applicant must displace what McHugh J referred to as the general rule in Brisbane South Regional Health Authority v Taylor at 555, that “actions must be commenced -- 22 of 23 -- 23 within the limitation period” which “should prevail once the defendant has proved the fact or the real possibility of significant prejudice”. [104] The factors that persuade me that any potential or actual prejudice is not significant, that it is possible to have a fair trial and so to exercise my discretion in favour of extending the limitation period against the second respondent in this case include: • With the exception of the specific instructions with regard to shaving for BPD surgery, the hospital holds all the relevant general records relating to its relationship with the first respondent; • More importantly, notwithstanding the possibility that something was inadvertently omitted, there are comprehensive records of this patient’s care including the hospital’s consent form, pre-admission nursing history, patient charts and discharge summary; • The hospital had standard procedures and there is no evidence to suggest they were deviated from in this case; • The second defendant has available to it all the nurses relevantly involved in her care; • The only nurse whose evidence was thought to be relevant who has not yet been found was, it was conceded in evidence by the second respondent’s solicitor, probably not necessary; • As the matter will be proceeding against the first respondent, it is likely that many of the matters relevant to the applicant’s case against the first respondent will be litigated in any event; and • The second respondent knew that the applicant was concerned about her discharge from the hospital with post-operative complications from November 2003 and had conducted an investigation at that time. Conclusion [105] The applicant has therefore satisfied the court to exercise the discretion to allow her to proceed against the second respondent. The period of limitation for bringing proceedings against the second respondent should be extended to 19 September 2008. Orders [106] I will order that the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974. I will hear submissions as to costs. -- 23 of 23 --