Cotter v Stathakis [2007] QDC 60

DISTRICT COURT OF QUEENSLAND CITATION: Cotter v Stathakis [2007] QDC 060 PARTIES: Kathleen Cotter Applicant v Socrates Stathakis Respondent FILE NO/S: D42/07 PROCEEDING: Application ORIGINATING COURT: District Court Southport DELIVERED ON: 5 April 2007 DELIVERED AT: Southport HEARING DATE: 5 March 2007 JUDGE: Newton DCJ ORDER: The limitation period relating to the applicants cause of action for negligence and breach of contract against the respondent be extended to 14 August 2007. Respondent to pay the costs of the application on a standard basis. CATCHWORDS: LIMITATION OF ACTIONS – Application for extension of limitation period – where material fact was within applicant’s means of knowledge before the relevant date but only obtained a decisive character after that date – whether paragraph (a) of s.31(2) of the Limitation of Actions Act 1974 was satisfied such that the Court had power to extend the limitation period COUNSEL: Mr M E Pope for the applicant Mr A Luchich for the respondent SOLICITORS: Derek and Dwyer for the applicant Tress Cox Lawyers for the respondent -- 1 of 6 -- 2 [1] Kathleen Cotter seeks an extension of time in which to commence proceedings against Socrates Stathakis. [2] Ms Cotter consulted Mr Stathakis (who is a dentist) on 8 May 2000 about having work done on her front teeth. She claims that Mr Stathakis recommended that two upper front teeth be re-crowned and four other upper teeth be crowned, and that that work with the necessary root canal treatment for those teeth, took place between then and February 2003. [3] In May 2005 during a routine check-up and x-rays, Dr Barry Young (a dentist) identified some anomalies with Ms Cotter’s teeth and referred her to Dr Mark Behan (a dentist) who saw her on 4 July 2005. Dr Behan treated infection and re- did the work originally performed by Mr Stathakis. [4] In a report dated 22 September 2006 Dr Behan attributed Ms Cotter’s poor gingival response to poor marginal fit of all six anterior crowns. During the redoing of the root filling on the left lateral incisor (22) a separated file was encountered. This was largely if not fully removed by Dr Behan. [5] Ms Cotter made a complaint to the Health Rights Commission in August 2005. On 18 May 2006 the Health Rights Commission notified Ms Cotter that “in accordance with section 71(3) of the Health Rights Commission Act 1991, a delegated representative of the Dental Board of Queensland was consulted about [your] complaint. The representative stated that there was a high probability that the infections were caused by the clinical care that you received [from Mr Stathakis], but allegations about the broken instrument could not be substantiated.” [6] As a result of the letter of 18 May 2006 Ms Cotter contacted the Health Rights Commission and was informed about the process to obtain her file. On 7 August 2006 the Commission released sufficient of the file to enable Ms Cotter to obtain legal advice. She consulted her solicitors on 3 November 2006 and was informed that she had a cause of action in negligence and breach of contract against Mr Stathakis. [7] Ms Cotter states that until she had the results of her complaint to the Health Rights Commission she was not aware that she had a good cause of action against Mr Stathakis. -- 2 of 6 -- 3 [8] Under s.31 of the Limitation of Actions Act 1974 (“the Act”) there are three issues which Ms Cotter must address in order to satisfy the Court that it is appropriate to exercise the discretion available to it to extend the limitation period:- (a) there must be a material fact of a decisive character relating to the right of action which was not within the means of knowledge of the Applicant, until a date after the period which starts one year prior to the proceedings being commenced; (b) there must be a prima facie case of causative liability in the Respondent; (c) the first two matters having been established, the Court’s discretion ought to be exercised in favour of the Applicant. [9] The onus of proof in an application of this kind lies at all times with the Applicant (s.31(2) of the Act). [10] Associated with the matters raised by s.31 of the Act are the issues of whether Ms Cotter has provided a reasonable excuse for the delay in providing the Notice of Claim required by s.9 of the Personal Injuries Proceedings Act 2002, and whether leave should be given to commence the proceedings pursuant to s.43 of that Act. [11] Section 9 (3) of the Personal Injuries Proceedings Act 2002 provides: “(3) Part 1 of the notice must be given within the period ending on the earlier of the following days— (a) the day 9 months after the day the incident giving rise to the personal injury happened or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury; (b) the day 1 month after the day the claimant first instructs a law practice to act on the person’s behalf in seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified.” Section 9(6) provides: “(6) If part 1 of the notice is not given within the period prescribed under subsection (3) or section 9A(9)(b), the claimant is taken to have a reasonable excuse for subsection (5) if— (a) the claimant— (i) has made a health service complaint about the person against whom the proceedings is proposed to be started to the Health Rights Commissioner under the Health Rights Commission Act 1991 within the -- 3 of 6 -- 4 period prescribed for making a complaint under that Act; and (ii) gives part 1 of the notice to the person as soon as practicable after the complaint is finalised under the Health Rights Commission Act 1991 or Health Quality and Complaints Commission Act 2006; or (b) the claimant— (i) has made a health service complaint about the person against whom the proceeding is proposed to be started to the Health Quality and Complaints Commission under the Health Quality and Complaints Commission Act 2006 within the period prescribed for making a complaint under that Act; and (ii) gives part 1 of the notice to the person as soon as practicable after the complaint is finalised under the Health Quality and Complaints Commission Act 2006.” [12] In this case notice to the Health Rights Commission was given. What must be determined is whether the notice of claim was given as soon as practicable after the complaint was finalised. I accept that the complaint was finalised on 7 August 2006 when the file was released by the Commission to Ms Cotter. It was at that time that Ms Cotter was informed of all matters that she needed to know in order to take advice. [13] Pursuant to s.30(1)(b) of the Act material facts are of a decisive character if, but only if, a reasonable person knowing those facts and having taken appropriate advice on them would regard them as showing: (a) the existence of a cause of action which has reasonable prospects of success; and (b) that such an action ought to be brought. [14] In Dick v University of Queensland [2000] 2 Qld R 476 at 485, Thomas JA identified three steps required in an application such as this: “The form of the legislation requires, I think, a step by step approach. The first step is to enquire whether the facts of which the appellant was unaware were material facts: s.30(1)(a). If they were, the next step is to ascertain whether they were of a decisive character: s.30(1)(b). If so, then it must be ascertained whether those -- 4 of 6 -- 5 facts were within the means of knowledge of the [applicant] before the specified date: s.30(1)(c).” [15] In Queensland v Stephenson BC200603311 the High Court (Gummow, Hayne and Brennan JJ) stated: “The better view is that the means of knowledge (in the sense given by par (c) of s.30(1)) of a material fact is insufficient of itself to propel the applicant outside s.31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have “a decisive character”. 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, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the 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- pars (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.” [16] I accept that, in the present circumstances, the earliest time at which Ms Cotter was in the position described by the High Court in Stephenson was after having the benefit of the Health Rights Commission investigation and taking appropriate advice on it. I reject the submission made for Mr Stathakis that the time be fixed by reference to the point at which Ms Cotter become aware of a possible injury, namely infection and the presence of an alleged foreign body in her gum or teeth. What Ms Cotter needed to know were the facts disclosed by the Health Rights Commission investigation and then legal advice pertaining to those matters. In Charlton v WorkCover Queensland – BC200610011 the Court of Appeal observed that even if all relevant matters of fact were known to an applicant well prior to a decision of an Industrial Magistrate in finding that the applicant had sustained an injury for the purposes of the WorkCover Queensland Act 1996, that does not necessarily mean that the test cannot be satisfied. Holmes JA saw the effect of the Industrial Magistrate’s decision as opening a statutory gateway to the applicant in his claim for damages. It was accepted that later events may confer a decisive character on material facts already known for the purposes of s.31 of the Limitation of Actions Act 1974. In my view, this is such a case. [17] The High Court in Davison v Queensland BC200603284 made it clear that it is not necessary to obtain an order under s.43 of the Personal Injuries Proceedings Act -- 5 of 6 -- 6 2002 to show a reasonably arguable case for the granting of an extension of time to be able to commence proceedings under the Limitation of Actions Act 1974, despite non-compliance with the section. What must be shown is an urgent need to commence proceedings. [18] I, for these reasons, order that pursuant to s.31 of the Limitation of Actions Act 1974 the limitation period relating to the applicant’s cause of action for negligence and breach of contract against the respondent be extended to 14 August 2007. I further order that the respondent is to pay the costs of the application on a standard basis. -- 6 of 6 --