Christensen v Salter, Wesley Hospital & Ors [2002] QDC 82

DISTRICT COURT OF QUEENSLAND [2002] QDC 082 PARTIES: JANE CHRISTENSEN Plaintiff -v- DR DAVID SALTER Defendant and THE WESLEY HOSPITAL Second Defendant and QUEENSLAND SURGICAL PTY LTD Third Defendant and ENDOVASIVE PTY LTD Fourth Defendant and FEMCARE LIMITED Fifth Defendant FILE NO: D1694 of 2000 PROCEEDING: Application to dismiss plaintiff’s proceedings; application to extend time DELIVERED ON: 3 May 2002 DELIVERED AT: Brisbane HEARING DATES: 13 December 2001; 12 March 2002 JUDGE: Judge Brabazon Q.C. ORDER: Proceedings dismissed; application to extend time dismissed CATCHWORDS: NEGLIGENCE – medical negligence – failed sterilisation – wrongful conception – whether pregnancy and subsequent birth of child constitutes a “personal injury” – “Filshie clip” - consideration of case law PRACTICE – application for summary judgment for the defendant – Rule 293 LIMITATION OF ACTIONS – Extension of time – ss10, 11 – “material fact of a decisive character” – whether claim should be classified as contractual or tortious – relevant limitation period – judicial discretion – prejudice to parties Uniform Civil Procedure Rules 1999 The Limitation of Actions Act 1974 Allen v Bloomsbury Health Authority [1993] 1 All ER 651 -- 1 of 38 -- 2 Berg v Kruger Enterprises (Division of Besser Qld Limited) Ltd [1990] 2 Qd R 301; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Brisbane Unit Development Corporation Pty Ltd v. Deeming No. 456 Pty Ltd [1983] QdR 16; Cartledge v. Jopling & Sons Ltd [1963] AC 758; Caterpillar Inc. v. Sun Forward Pty Ltd (1996) 37 IPR 41; CES v. Super Clinics Australia (Pty Ltd) (1995) 38 NSWLR 47; Dey v. Victorian Railways Commissioners (1949) 78 CLR 62; Dick v University of Queensland [2000] 2 Qd R 476; Do Carmo v Ford Excavations Pty Ltd (1983) 154 CLR 234; G D Searle v. Gunn [1996] 2 NZLR 129; General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125; Gillespie v. Elliott [1987] 2 QdR 509; Hancock v State of Queensland [2002] QSC 27; Hawkins v.Clayton (1988) 164 CLR 539; International General Electric Co of New York Limited v. Customs and Excise Commissioners [1962] Ch 784; Invercargill City Council v. Hamlin [1994]) 3 NZLR 513; Ipswich City Council v Smith (Court of Appeal 5443/1997 judgment 29/8/97); KM v. HM (1992) 96 DLR (4th ) 289; Magman International Pty Ltd v. Westpac Banking Corporation (1991) 32 FCR 1; McFarlane v. Tayside Health Board [2000] 2 AC 59; Melchior v. Cattanach and the State of Queensland [2001] QCA 246; Moriarty v Sunbeam Corporation Ltd (1988) 2 Qd R 325; Olympic Airways S.A .v. Nelson Weiler & Judd Associates Pty Ltd (1998) VSC 828 (25 August 1998); Opacic v Patane (1997) 1 Qd R 84; Pirelli General Cable Works Ltd. v. Oscar Faber & Partners [1983] 2 AC 1; S v.G (1995) 3 NZLR 681; Scarcella v. Lettice (2000) 51 NSWLR 302; Sherlock v. Stillwater Clinic (1977) 260 NW 2nd 169; Shipard v. Motor Accident Commission (1997) 70 SASR 240; UBAF Ltd v. European American Banking Corp [1984] QB 713; Walkin v. South Manchester Health Authority [1995] 4 All ER 132; Wardley Australia Ltd. v. State of Western Australia (1992) 175 CLR 514; Wilson v. Union Insurance Co.(1992) 112 FLR 166; Wood v Glaxo Australia Pty Ltd [1994] 2 QdR 431. COUNSEL: Mr M Grant-Taylor SC for the plaintiff Mr D Boddice SC for the first defendant (also for the second -- 2 of 38 -- 3 and fourth defendants, on application to extend time) SOLICITORS: McInnes Wilson Lawyers for the Plaintiff Flower & Hart for the first defendant Deacons Lawyers for the second defendant Sparke Helmore Solicitors for the fourth defendant Freehills for the fifth defendant The Applications [1] There is an application by the first defendant, Dr Salter. He asks for summary judgment against the plaintiff, Mrs Christensen. It is submitted that he has a complete defence to her claim, as any cause of action against him is statute barred by a three year time limit. The application is made under Rule 293 of the Uniform Civil Procedure Rules: “Summary judgment for defendant 293(1) A defendant may, at any time after filing a Notice of Intention to Defend, apply to the court under this part for judgment against a plaintiff (2) if the court is satisfied – (a) the plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim, and (b) there is no need for a trial of a claim or a part of the claim; the court may give judgment for the defendant against the plaintiff for all or part of the plaintiff’s claim and it may make any other order the court considers appropriate.” There is also an application by Mrs Christensen, in the event that her claim is found to be out of time. It is an application to extend the three year limitation period, according to the provisions of s 31 of The Limitation of Actions Act. A Cautious Approach [2] In Queensland, it is only since the advent of Rule 293, on 1 July 1999, that a defendant has been able to ask for summary judgment. Equivalent rules have been in place elsewhere for many years, and the approach of the courts in applying them -- 3 of 38 -- 4 is consistent. For example, in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62, Dixon J. said:- “…. the rule confers a power of summarily dealing with an action, and that this exercise should be reserved for actions that are “absolutely hopeless””. [3] The Northern Territory has a similar rule, in its Order 23. Of that rule, it was said in Wilson v. Union Insurance Co.(1992) 112 FLR at 181:- “Order 23 is intended as a means for dealing with actions which are absolutely hopeless, those so obviously frivolous or unsustainable and untenable that it is plain and beyond rational debate that they cannot succeed. The power under s.23 is to be exercised by a court with great caution; an applicant bears a heavy burden. If the plaintiff shows an arguable case, one which is not unworthy of serious discussion and of evidence being led, the case is not hopeless beyond argument, an application under Order 23 should be dismissed. ….. The affidavit process is unsuitable when facts are in dispute and this also points to the jurisdiction being exercised only when the case is obvious and clear beyond doubt.” [4] To similar effect, are the observations of the Victorian Court of Appeal in Olympic Airways S.A .v. Nelson Wheeler Arnold v. Judd Mann Associates Pty Ltd (1998) VSC 828 (25 August 1998). A similar rule is found in Western Australia and South Australia. The onus on the defendant in seeking to obtain summary judgment is certainly no less onerous than on a plaintiff who applies for summary judgment. [5] As it was pointed out in Shipard v. Motor Accident Commission (1997) 70 SASR 240 – 250:- “The obligation to be discharged by the defendant in an application made under r.25.04 is a stringent one and the power must be exercised with great care. As the Chief Justice said in Coombes & Barei Pty Ltd v. Lincolne Scott Australia Pty Ltd (unreported Full Court S.A. S6045 28 February 1997) …. “It is not sufficient that the court might think it likely that at the end of the day the party who invokes the rule will succeed, or even if the court thinks that success for that party is more than likely. The requirement of the rule is more demanding than that. The rule performs an important -- 4 of 38 -- 5 function, particularly these days when there is an emphasis upon efficiency in the conduct of litigation, in enabling the court to dispose promptly and economically of claims entirely lacking in merit. But, at the same time, the court must be careful not to dispose of claims in this way unless they really are lacking in merit…..” It is quite inappropriate when the outcome may depend on nuisances of fact and degree, that the fact of the proceedings be determined in a summary fashion under this rule.” [6] Rules 292 and 293 are similar to Order 20 Rule 1 of the Federal Court Rules. It has been noted in relation to those rules, that they are not intended to provide an alternative to trial as the ordinary method of resolving litigation in the court. Their function is limited to providing an expeditious means of resolving litigation where the applicant can clearly demonstrate that there is no real defence to particular claims made by him or her, or that (in the case of a defendant) he or she has a defence to the proceeding – see Caterpillar Inc. v. Sun Forward Pty Ltd (1996) 36 IPR 411. [7] In General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, Barwick J. described the burden on a plaintiff seeking summary judgment:- “The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit argument”; “discloses a case which the court is satisfied cannot succeed”; “under no possibility can there be a cause of action”; “be manifest to allow the pleadings to stand would involve useless expense”. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved cannot succeed, or “so manifest from the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; so to speak …….. in advance.” -- 5 of 38 -- 6 [8] Rule 293 says that the application for summary judgment can be made at any time. This application is made after considerable delay. Dr Salter filed and served a notice of intention to defend on 31 October 2000. On 9 October 2000 his solicitors mentioned the prospect of their client applying for summary judgment. However, it was not until over a year later, in 21 November 2001, that this application was filed. In the meantime, the pleadings have closed and a substantial process of disclosure and inspection of documents has been completed between all parties. [9] Delay has not always resulted in the rejection of such applications. In any event, it is a matter that goes to the exercise of the court’s discretion. It does not deprive the court of the power to deal with the application. Even if there be an explained delay, if it is clear that there is no defence to the action, then the power to give a summary remedy should be exercised – there is no point in allowing an action, or part of an action, to be tried when it is going to fail (see for example, Brisbane Unit Development Corporation Pty Ltd v. Deeming No. 456 Pty Ltd (1983) QdR 16 at 17). [10] Here, it is necessary to consider the three year time limit which, it is said, is a complete bar to Mrs Christensen’s claims against Dr Salter. The High Court of Australia had to deal with limitation questions in Wardley Australia Ltd. v. Western Australia (1992) 175 CLR 514. There, Mason CJ., Dawson J., Gaudron J., and McHugh J., put the matter this way:- “We should however state in the plainest of terms, that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained, to justify a confident answer to the question.” (At page 533) -- 6 of 38 -- 7 [11] As Toohey J. put it, at page 559:- “The case however provides a good illustration of the difficulty and undesirability of trying to determine a limitation point in interlocutory proceedings, unless the position is clear beyond peradventure.” [12] The High Court referred to another decision about a limitation period, being the decision of the Full Court of the Federal Court in Magman International Pty Ltd v. Westpac Banking Corporation (1991) 32 FCR 1. That decision demonstrates the risks of attempting to dispose summarily of a claim where a limitation point is involved. There, the Federal Court made a declaration after hearing of a preliminary question about time limitation, that some claims were barred, but others were not. On appeal, the order was set aside. It was held that it was not possible to decide whether or not the plaintiff could make out a cause of action at trial. As Beaumont J. put the matter, in dealing with the application for declaratory relief:- “…. The court is required to give a definite, and affirmative, answer to the separate or preliminary question asked. That is to say, if the court cannot give a definite answer to the question whether a claim is barred, or not, because, for instance, the answer depends upon an analysis of the evidence offered at the trial, the court should state that it is not possible to give a definite answer to the question at that stage and the matter should proceed to trial without any declaration being made. See Ubaf Ltd v. European American Banking Corp (1984) 1 QB 713 at 728. The applicable principle was explained as follows by Upjohn LJ. In International General Electric Co of New York Limited v. Customs and Exercise Commissioners (1962) CH 784 at 789:- “An order declaring the rights of the parties must in its nature be a final order after a hearing when the court is in a position to declare what the rights of the parties are, and such an order must necessarily then be res judicata and bind the parties forever, subject only, of course, to a right of appeal.” … It is premature at this stage, even if the allegations in the pleading and the agreed facts are assumed for present purposes, to consider whether the appellants have, or have not, established that Westpac engaged in misleading conduct. -- 7 of 38 -- 8 … it must also follow that it is not yet possible to decide, in any conclusive sense whether or when the appellant suffered any relevant loss or damage ….” [13] To like effect is the short statement by Hill J.:- “The point of time at which loss or damage is suffered will obviously depend upon the facts of a particular case. It is for that reason that it will often, perhaps even usually, be inappropriate to deal with the limitation question on a strike out application …” It will be obvious from the above statement, that usually any uncertainty will arise out of facts which are not clearly established, and can only be established after a trial. That was why summary judgment was not given, in another Queensland case involving the same medical procedure as in this case – see Crawley v. Rolley & Ors [2000] QSC 139, judgment 16 May 2000), which is the source of most of the above references. The Pleadings [14] This is a claim for damages for wrongful conception. The claim was commenced in this court on 27 April 2000. Up until 4 March, 2002, the amended statement of claim said that Mrs Christensen went to see Dr Salter, an obstetrician and gynaecologist, on about 19 September 1995. She explained to him that she did not want to have any more children, and that she wanted to be permanently sterilised. Dr Salter told her that he would apply clips to her fallopian tubes. [15] Dr Salter performed the operation at the Wesley Hospital on 26 August 1996. He applied a small clamp, known as a “Filshie clip” to each tube. The clip was attached to an applicator which enabled it to be inserted onto the tube. (It is -- 8 of 38 -- 9 common ground that the procedure was carried out laparoscopically, with the applicator and the clip attached to the end of the laparoscope). [16] The pleading then asserted that the applicator had not been serviced or calibrated, as it should have been, or was otherwise defective (for reasons set out in paragraph 14). Therefore, it did not function properly, and failed to attach the clips effectively to the plaintiff’s fallopian tubes. [17] The result was a failed operation for permanent sterilisation. On 19 December 1997 she gave birth to a boy, christened Erik. The pleading said that she discovered her pregnancy on or about 29 April 1997. [18] Mrs Christensen asserted that Dr Salter was negligent, or in breach of a contract with her, in the conduct of the surgery. In short, it was said that the failure of the surgery and the subsequent pregnancy was caused by his actual conduct of the operation, so that the Filshie clips were not properly attached, and that he failed to advise Mrs Christensen that the failure rate of the Filshie clip was higher than 5 in 1000. It was said that he failed to advise about alternative procedures which had little or no failure rate. Because of the higher failure rate of the Filshie clips, he should have attended to the calibration and servicing of the applicator. [19] It was pleaded that Mrs Christensen was a “consumer” and that Dr Salter was “engaged in trade and commerce” with her, either within the meaning of the Fair Trading Act 1989 or the Trade Practices Act 1974. Therefore, the claims made against Dr Salter were on the basis of negligence, misleading or deceptive conduct, or breach of contract. -- 9 of 38 -- 10 [20] Then followed similar claims against the Wesley Hospital, and against the three companies who are joined as the third, fourth and fifth defendants because of their involvement with the manufacture, supply and use of the Filshie clips and the applicator. [21] Mrs Christensen said that she has suffered loss and damage being – (a) pre-natal distress, pain and suffering of birth; (b) the cost of upbringing the child until trial; (c) the cost of upbringing the child until age 21; (d) the services, physical care and upbringing costs given to the child in the past and in the future; (e) out-of-pocket medical expenses; (f) economic loss suffered as a result of the birth and caring for the child. On 4 March 2002, a further amended statement of claim was filed. Relevantly, the allegations that Dr Salter should have advised her about the failure rate of the clips, and the availability of other procedures, have been abandoned. An allegation of breach of contract has also been abandoned. Dr Salter’s negligence is said to have caused the pregnancy, in that he: (a) failed to adequately secure the clips, to also ensure the total occlusion of the tubes; (b) failed to enquire whether the applicator had been properly serviced and calibrated, at all, or in accordance with Femcare’s instructions before using it; -- 10 of 38 -- 11 (c) failed to inspect the attached clips to ensure that the upper jaw had been fully compressed and securely locked under the nose of the lower jaw, and (d) failed to place the clips on the isthmic portion of the tubes, 1-2cm from the cornu. [22] For the purposes of Dr Salter’s application, it should be assumed that all of Mrs Christensen’s present allegations against him can be made out. [23] Mrs Christensen’s proceedings in this court were issued on 27 April 2000. There were some earlier Supreme Court proceedings brought by her against Dr Salter, but they were discontinued on 31 August 1999. [24] Dr Salter’s defence denies negligence. It asserts that a five week pregnancy was confirmed on 1 May 1997. It then goes on to say, in paragraph 15:- “(a) the causes of action pleaded herein by the plaintiff against the first defendant arose more than three years prior to the issue of the claim herein; (b) such causes of action are barred by s.11 of the Limitation of Actions Act (Qld) (1974) and s.82 of the Trade Practices Act (Cth) (1974) and s.99 of the Fair Trading Act (Qld) (1989); (c) the first defendant pleads these Acts in bar to the plaintiff’s claims.” The Facts [25] Mr Grant-Taylor S.C. for Mrs Christensen submitted two outlines of argument. Both contain a chronology. In addition to the dates mentioned above, they contain this entry:- “22.03.97 Commencement of plaintiff’s most recent period prior to falling pregnant.” -- 11 of 38 -- 12 [26] The first submission contains no criticism of the facts relied upon in the written outline submitted on behalf of Dr Salter. That outline, relevantly, said this:- “There could be no doubt that the present claim was instituted more than three years after the cause of action occurred to the plaintiff. That it occurred prior to 27 April 1997 is conceded by the plaintiff in her answer to question 6 in the Failed Sterilisation Questionaire (Exhibit J Affidavit of K.P. Philp, filed 21 November 2001). That question was in the following terms:- “After you had the procedure, when did you find out that you were pregnant?” In response the plaintiff answered – “29.4.97 (5½ weeks)” [27] There was no objection to paragraph 5 of Miss Philp’s affidavit, which said:- “I am informed by Dr Salter and verily believe that conception is usually taken to occur fourteen days after the date of the last menstrual period. Therefore, given that the plaintiff’s last menstrual period prior to her pregnancy commenced on 22 March 1997, conception would have occurred on or about 5 April 1997.” [28] The date of 22 March 1997, and the reference to the most recent period, is taken from a report by Mrs Christensen’s doctor, also exhibited to Miss Philp’s affidavit. [29] Therefore, there was no contest about the date of conception – it was more then three years before these proceedings were filed. There was no suggestion that a trial might establish any other date. The Limitation of Actions Act [30] There are no issues about the timing of the critical events in this case – Mrs Christensen’s visit to Dr Salter, the operation, the date she became pregnant, and the date of birth of Erik. It is conceded that the allegations about negligence or breach of duty or contract on Dr Salter’s part would have to be investigated at a trial. -- 12 of 38 -- 13 [31] Therefore, with regard to the issue of the three year limitation period, the vital facts are not in dispute. The factual difficulties which were unresolved in cases such as Wardley and Magman are not present here. Rather, the difficulties are about the law itself. [32] There are two legal issues. First, when did the three year time limit begin to run against Mrs Christensen? Was it at the moment of conception, or at some later time, within the three year period? Secondly, might a different limitation period apply to her economic claims, compared to those for personal pain and discomfort? [33] It is helpful to start with ss.10 and 11 of the Queensland Limitation of Actions Act. (It was not suggested that there was any relevant difference in the limitation provisions of the Trade Practices Act or the Fair Trading Act): “Section 10 Actions of contract and tort and certain other actions (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action arose – (a) an action founded on simple contract or quasi- contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injuries to any person ….. Section 11 Actions in respect of personal injury Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (where the duty exists by virtue of a contract or a provision made by or under a statute, or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of any injury resulting from the death of any person shall not be brought after the expiration of three years from the date on which the cause of action arose.” [34] When did Mrs Christensen’s cause of action against Dr Salter arise? Was it at conception, or at a later time? Here, her counsel says that it arose only when she -- 13 of 38 -- 14 discovered she was pregnant, which is within the three years of filing her claim. On the other hand, counsel for Dr Salter says that it arose at the moment of conception – outside the three year period. [35] The first step is the recognition that, for the purposes of the law, a pregnancy is treated as a personal injury. It is only necessary to refer to a decision of the House of Lords in McFarlane v. Tayside Health Board [2000] AC 59 (Lord Steyn at 81G and Lord Clyde at 12EG), and to the decision of the Queensland Court of Appeal in another wrongful conception case, Melchior v. Cattanach and the State of Queensland [2001] QCA 246. There, the judges recognised that the pregnancy, birth and depression that Mrs Melchior suffered from should be regarded as a form of personal injury – see paras. 6 (the President), paras. 70-72 (Davies JA.) and para. 141 where Thomas JA. said:- “The first component of the judgment is in respect of the familiar claim for damages for personal injury caused by the defendant’s negligence. …. The pregnancy, birth and depression that followed may be regarded as a form of personal injury and some expenses and loss of income flowed from these events. The other items which were allowed (including Griffiths v. Kerkemeyer damages) fall under well- known heads of damage based upon further injury. No further discussion is required….” [36] Mrs Christensen’s cause of action arose when she suffered some actual loss or damage because of the (assumed) fault by Dr Salter. [37] The impact of a similar time limit, in a wrongful conception case, was considered by the English Court of Appeal in Walkin v. South Manchester Health Authority [1995] 4 All ER 132. Auld LJ held that the birth of the unwanted child was not an intervening act – it was caused by the personal injury, namely the unwanted pregnancy. He found that the failed attempt to sterilise Mrs Walkin was not itself a -- 14 of 38 -- 15 personal injury. Rather, the conception was a personal injury. That was the unwanted condition which she had sought to avoid by undergoing the sterilisation operation. He was influenced by the United States authority in Sherlock v. Stillwater Clinic 260 NW 2 nd 169, 174, 175 where it was said that:- “We believe that this type of case more properly denominated an action for “wrongful conception” for it is at the point of conception that the injury claimed by the parents originates … viewed in this manner the parents of an unplanned child should at least be entitled to recover all damages immediately incident to pregnancy and birth….” [38] Both Roch LJ and Neill LJ came to the same conclusion – the cause of action arose at the time of conception. They rejected an argument, that the cause of action only arose at the moment of the child’s birth. [39] In England, consideration of the critical time arose again before the House of Lords in McFarlane’s case. That was a case about a failed vasectomy operation. The impact of a limitation period was not an issue. The House of Lords was considering an appeal from the Courts of Scotland, which held that a woman had suffered damage and loss when she became pregnant, despite her deliberate choice not to do so. Lord Slynn seemed to assume that would be the correct approach. Lord Steyn seems to express no opinion about it. Lord Hope described conception as “the harmful event” which was the very thing which the mother had been told would not happen to her, because of the vasectomy. Lord Clyde emphasised that the claim was one for wrongful conception, and could not be classified as a claim brought by the parents for a wrongful birth. He spoke of the plaintiff’s damages during her pregnancy, which assumes that a cause of action had arisen at the moment of conception. Lord Millett said (page 35) in terms, that the damage occurred when -- 15 of 38 -- 16 Mrs McFarlane conceived, as that was an invasion of her bodily integrity and threatened further damage, both physical and financial. [40] In Melchior’s case, the assumption was that the pregnancy itself could be regarded as a form of personal injury. That assumes that the cause of action had arisen at the time of conception. [41] Here Dr Salter’s counsel placed reliance on the usual principle – that is, a cause of action in negligence is complete when loss or damage is sustained. Time commences to run from that point, even if a plaintiff be unaware of it. The Australian decisions in Hawkins v.Clayton (1988) 164 CLR 539 at 543, 560-561, 587-588 and 598-602, and in Scarcella v. Lettice (2000) 51 NSWLR 302 support that traditional proposition. It may be recalled that the significant English decision, to the same effect, is that of Cartledge v. Jopling & Sons Ltd (1963) AC 758 at 7829-783 – a personal injury case. See also the observations in Wardley’s case (supra) at 540, where Deane J. observed, consistently with the decision of Hawkins v. Clayton, that the court had refused to accept the suggestion, at least in cases of claims in negligence for damages for economic loss, that time under limitation provisions does not commence to run until the stage when the plaintiff discovers, or could have discovered, that the loss has been sustained. Toohey J. at 554-555 observed that:- “A plaintiff’s unawareness of the existence of the cause of action ordinarily does not prevent time running” – referring, in addition, to the decisions in Pirelli v. Faber & Partners (1983) 2 AC 1 and Gillespie v. Elliott (1987) 2 QdR 509. In that decision of the Queensland Full Court, where the damage was financial loss suffered by the -- 16 of 38 -- 17 purchaser of a hotel, it was held that the plaintiff’s cause of action accrued when the damage was sustained irrespective of knowledge of the damage. [42] In short, there seems to be no Australian authority in favour of the proposition, advanced by Mr Grant-Taylor, that time might run against Mrs Christensen only from the time when she discovered that she was pregnant. He mentioned no authority in support of his submission, which was that:- “merely falling pregnant was not sufficient to result in the cause of action crystallizing. The plaintiff at that point in time had sustained no pain, no suffering and no loss of amenities; she had suffered no economic loss; and she had incurred nothing by way of out-of-pocket expenses or special damages. It was only when she discovered that she had fallen pregnant on 29 April 1997 that, at the earliest, a cause of action chrystalised…” [43] No submissions were made about the position elsewhere. There is a widespread reliance on the “reasonable discoverability rule” in North America, so that time does not run until the plaintiff discovers the material facts. See, in the context of a claim for damages for incest, the decision of the Supreme Court of Canada in KM v. HM (1993) 96 DLR (4th ) 289. There is a reference to that United States test in Wood v Glaxo Australia Ltd 1994 2 QdR 431 at 442 (per Davies JA). There has also been a change in the law of New Zealand, since the decisions in S v.G (1995) 3NZLR 681 and G D Searle v. Gunn (1996) 2 NZLR 129. There was a definitive rejection of the approach in Cartledge v. Jopling. As it was put in the second case, which was decided later in time;- “In our view the time has now come to state definitively that Cartledge does not represent New Zealand law. It has now been superseded in the UK by legislation, and its authority as well as that of Pirelli has also been cast into some doubt by Hamlin (Invercargill City Council v. Hamlin (1983) 3 NZLR 513)…. We see no need for statutory intervention to achieve a result which is conmmensurate with justice and which gives effect to the overall legislative intention…. The corresponding problem of what may be described at latent injury or latent disease in actions for bodily injury has only -- 17 of 38 -- 18 comparatively recently been called into question in this court, and was referred to but left open in an asbestos related cancer case … the hold that a plaintiff who has not discovered that a bodily injury is attributable to the wrongful action of another, and who could not reasonably have discovered that fact, is barred from suit if the injury in fact occurred outside the statutory period is effectively to deny a person the right of action. We do not see that consequence being required by the legislation. We would therefore hold that for the purposes of 4.7 of the Limitations Act (1950), a cause of action accrues when bodily injury of the kind complained of was discovered was reasonably discoverable as having been caused by the acts or omissions of the defendant…. This conclusion avoids any difficulty arising from the fact that many cases of personal injury result also in economic loss, both actual and potential. Logically it should not be possible to argue that where a particular tortious act is compensable, different rules apply depending upon classification of the nature of the loss…It is in accord with what appears to be established Canadian law applied to corresponding legislation ….” Economic Loss [44] Mrs Christensen claims damages for the costs of raising her son to the age of 21 years. Such a claim has been the subject of much controversy in the wrongful conception and wrongful birth cases. Many courts in the United States have declined to recognise such a claim. In McFarlane’s case the English House of Lords decided, as a matter of policy, that such a claim should not be recognised. [45] In Australia, the High Court has not yet had an opportunity to decide whether the costs of rearing a child conceived as a result of medical negligence in a failed sterilisation are part of the recoverable damages. The question has not been directly considered by any other Australian Court of Appeal – apart from the decision in New South Wales, in CES v. Super Clinics Australia (Pty Ltd) (1985) 38 NSWLR 47, where there was a division of opinion. For different reasons, the majority would not have allowed the costs of raising a child. -- 18 of 38 -- 19 [46] For Queensland, the matter has now been settled by the recent decision of the Court of Appeal in Melchior. The President held that the parents were entitled to the reasonable costs of child rearing which were caused by the surgeon’s negligence. She found that there were no prohibiting public policy considerations which required such a claim to be extinguished or moderated by any set-off – that is, by valuing the “benefit” that those parents gained from having an additional child. In effect, Davies JA reached the same conclusion. [47] Thomas JA rejected the “full recovery” solution. He rejected the concept of attempting to assess the value of the benefit of a particular child, as being both unworkable and unattractive. However, he held that the benefits of paternity, maternity and the benefit of custody are undeniable, and are ignored if full recovery damages are awarded without deduction. Therefore, he thought that a “limited damages rule” should be adopted, which notionally sets off the benefits of parenthood against the damages for the costs of rearing the child. There is no need here to elaborate on that finding. [48] For present purposes, it is necessary to note how the Court of Appeal characterised such a claim, whether it be full recovery, or a partial recovery, on a limited basis. In short, all the judges thought that such a claim would not be for damages for personal injury, but rather for pure economic loss suffered by a parent who has to raise a child. The idea goes back to at least the decision of Brooke J in Allen v. Bloomsbury Health Authority (1993) 1 AER 651. There, it was pointed out that damages in a wrongful birth case contained two elements – that is, general damages for the mother’s discomfort and pain, etc. and also damages for economic loss quite unassociated with that physical injury. In substance, that was the approach adopted -- 19 of 38 -- 20 by the Queensland Court of Appeal. See the President at paragraphs 6, 37, 44 and 45, Davies JA., at para. 77, and Thomas JA., at paras. 141, 143, 144, 201 and 202. As he put it, in paragraph 201:- “A claim for pure economic loss of this kind should not (sic) be recognised as the consequence of a breach of duty entitling parents to damages, either as a recognised additional cause of action, or as an additional head of damage in a mother’s personal injury claim.” [49] Here, it is submitted that the separate character of the claim is important when considering the three year time limit. The suggestion is that such damages are not damages for personal injury at all, and so they fall within the six year, rather than the three year provisions, in sections 10 and 11. That is, it is said that such damages do not “consist of or include damages in respect of personal injury to any person”. [50] The foundation of that submission can be seen in Allen v. Bloomsbury Health Authority as Brooke J put it:- “I realise that if Parliament does not intervene this is likely to mean that different limitation periods may apply to the two types of claim, since it is hard to see how section 11 of Limitation Act 1980 would apply to a claim limited to the financial costs associated with the upbringing of the unwanted child since this would be, on the facts of the case like the present, a straightforward …. claim for foreseeable economic loss caused by the negligent advice of a statement, however, this is not a matter I have to decide in this case.” [51] That suggestion was disapproved in the Walkin case. Auld LJ recognised that there could be damages for economic losses, but held that such damages arose out of the same cause of action. He reviewed earlier English authority, saying that the question of whether an action is for damages in respect of personal injuries was one of substance, not a matter of a pleading. He demonstrated that the earlier decisions were contrary to the judge’s suggestions in Allen’s case. -- 20 of 38 -- 21 [52] Neill LJ was of the same opinion. He said that a plaintiff could not step outside the three year limitation period prescribed by s.11 by abandoning any claim for damages in respect of the physical injury and claiming only damages in respect of a loss of earnings (in that case in respect of the costs of the upkeep of a child). There was only one cause of action Roch LJ agreed with the other two judges. [53] The McFarlane decision in the House of Lords was not about time limits. However, Lord Clyde at page 30 clearly expressed his approval of the Walkin approach which held that there was only one cause of action, including the claim for economic loss. (The High Court of Australia has recently granted special leave to appeal in Melchior. The appeal will test the Court of Appeal’s decision about the costs of rearing a child.) Conclusions [54] On the first issue, the established Australian law is against Mrs Christensen. The three years began to run from the moment of conception, on about 5 April 1997, despite her later realisation that she was pregnant, inside the three year period. That period expired on about 5 April 2000, 22 days before these proceedings commenced. There would seem to be no prospect of persuading a Queensland court that she suffered damage at a time later than the moment of conception. She has not -- 21 of 38 -- 22 suffered an injustice as her knowledge of her pregnancy was complete only a few weeks later. As the New Zealand cases show, it is conceivable the High Court of Australia might adopt a more liberal discoverability test, so that time does not run until a woman discovers that she is pregnant. In the meantime, it is appropriate for this court to proceed on the established basis. [55] It seems unlikely that an Australian court would wish to disagree with the approach of the Court of Appeal in Walkin, and by Lord Clyde in McFarlane, that there is only one limitation period, as the claims for economic losses are “in respect of the personal injury”. While the law in this area is still unsettled in other ways, that does seem to be a correct statement of the law. There was no submission to the effect that Walkin’s case was wrongly decided. [56] As observed above, this is not a case where the facts are uncertain. Rather, it is an area of the law that is not yet well settled. That will only happen, after one or more appeals to the High Court of Australia. What should this court do now? In principle, the better approach is to apply the law as it presently stands, even though the future may see changes. As the facts are not in dispute any appeal against this judgment is likely to be conclusive. A long trial may be avoided. [57] Mrs Christensen faces two insuperable obstacles. The three year time limit began to run against her from the moment of conception, despite her ignorance of her condition. Secondly, though she might recover her economic losses caused by the need to raise her son, that is not a claim which carries a six year limitation period. [58] Dr Salter’s application should be granted. Mrs Christensen’s proceedings against him are out of time, and liable to be dismissed, as against him. -- 22 of 38 -- 23 Mrs Christensen’s Application for an Extension of Time [59] Mrs Christensen requests that the three year time be extended. That request is opposed by all the defendants, except the third defendant, who has not been represented in either of these applications. [60] Pursuant to s.30(2) of the Limitation of Actions Act, Mrs Christensen must establish, that a “material fact of a decisive character” as defined in the Act, was not within her means of knowledge, at least until 5 April 1999, one year before the date when the limitation period expired. The court can only order an extension of the limitation period if a plaintiff does not have that decisive knowledge within that year. If that condition is satisfied, then time may be extended for up to a year after the date when the plaintiff gained that decisive knowledge. That is a condition of the court’s jurisdiction, and not just discretion. See the decision of the Full Court of Queensland in Moriarty v Sunbeam Corporation Ltd (1988) 2 Qd R 325 at 335. [61] Attention has to be paid to the concepts of: “a material fact of a decisive character” and “appropriate advice”. Section 30 of the Limitation of Actions Act relevantly provides: “For the purposes of this section and section 31, 32, 33 and 34 – (a) the material facts relating to a right of action include the following: (i) the fact of the occurrence of negligence … on which the right of action is founded; (ii) … (iii) the fact that the negligence … causes personal injury; (iv) … -- 23 of 38 -- 24 (v) the extent to which the personal injury is caused by the negligence … (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 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; 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”. “Appropriate advice” is defined as follows: “… 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” (s.30(2) of the Act). [62] Section 31 of the Act gives the court power to extend time, if the essential condition, mentioned above is met – that is, that the material fact of a decisive character is not within the applicant’s means of knowledge during the year before the limitation period expired. If that condition is satisfied, the limitation period may be extended. There is a further condition – it must appear to the court that there is evidence to establish the right of action, apart from the limitation defence. (See s. 31(2)(b)). The Decided Cases [63] The requirements of ss. 30 and 31 of the Act have given rise to much litigation, in Queensland and in other jurisdictions which have comparable legislation. The decided cases now show how this Court should approach the present problem. -- 24 of 38 -- 25 First, the fact that Mrs Christensen may have acquired her means of knowledge after the commencement of proceedings in this court does not disqualify her from taking advantage of its provisions. See the Queensland Court of Appeal in Opacic v Patane (1997) 1 Qd R 84. [64] The proper approach to applications of this kind is set out in Dick v University of Queensland [2000] 2 Qd R 476. As Thomas JA explained: “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 applicant was unaware were material facts ... If they were, the next step is to ascertain whether they were of a decisive character ... If so, then it must be ascertained whether those facts were within the means of knowledge of the applicant before the specified date ... In making a finding of fact on this important question, the reasonableness of the steps taken by the applicant needs to be considered, and of course an applicant will not succeed if he or she has unreasonably delayed in obtaining the necessary advice or information ... the gathering of the necessary information and awareness which will make it reasonable for an applicant to bring an action may well involve progressive stages of awareness. In cases where a potential applicant lacks a material fact, and reasonably needs the help of a solicitor or someone else to obtain it, some further time may reasonably elapse before it should be held that such facts are within the applicant’s means of knowledge. Such time will include the time which would reasonably elapse if the applicant, taking all reasonable steps to do so, consults the solicitors or other persons, and those solicitors or those other persons undertake the necessary inquiries to ascertain the necessary additional facts to show whether or not there is a worthwhile cause of action.” [65] The policy of the Act was explained by the High Court in Do Carmo v Ford Excavations Pty Ltd (1983) 154 CLR 234 in its consideration of the New South Wales limitation provisions which were in relevantly identical terms to the Queensland act. Wilson J. (at 264) cited with approval the following passage from Lord Pearson’s speech in Smith v Central Asbestos Co [1973] AC 518 at 541-542: -- 25 of 38 -- 26 “It seems to me that Parliament has drawn the line between ignorance of the facts (material and decisive facts) and failing to draw the conclusions which a reasonable man, with the aid of expert advice, would have drawn from those facts as to the prospect of success in an action. If the applicant did not know one or more of the material and decisive facts, his lateness in bringing the action is excused. If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice, his lateness in bringing the action is not excused.” See also Deane J in Do Carmo at 250, and 252-253. Lord Pearson’s statement was also approved unanimously by the Full Court of the Supreme Court of Queensland in Berg v Kruger Enterprises (Division of Besser Qld Limited) Ltd [1990] 2 Qd R 301 at 302. [66] The discovery of a material fact will not justify an extension of the limitation period where the applicant already knew sufficient facts before that discovery to make it in his or her own interests to institute proceedings. As stated by Macrossan CJ in Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 at 333:- “In cases like the present, an applicant … must show that without the newly learned fact or facts he would not, even with benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s.30(b) comes down to: Taggert v The Workers’ Compensation Board of Queensland … and Do Carmo v Ford Excavations (1984) 154 CLR 234, per Deane J.” See also Berg v Kruger Enterprises, supra, at 304-305 and Pincus JA in Ipswich City Council v Smith (Court of Appeal 5443/1997 judgment 29/8/97). [67] In Wood v Glaxo Australia Pty Ltd [1994] 2 QdR 431 the Court of Appeal had to consider whether or not a material fact of a decisive character had been within the applicant’s knowledge. Macrossan CJ put the matter this way: -- 26 of 38 -- 27 “The statutory scheme constituted by sections 30 and 31 seems to assume that an applicant either may or may not at some earlier time have knowledge of particular matters which are in the category of material facts but she has nevertheless not excluded from the possibility of obtaining an extension of limitation period. If she has not yet (and even if she had made reasonable inquiries and taken advice would not yet be) in possession of some one or more material facts of a decisive character. When some critical knowledge of facts is belatedly gained which puts her over the borderline into a position where for the first time she has reasonable prospects and should in her own interests commence his proceedings she may be entitled to an extension. See Berg v Kruger Enterprises [1990] 2 Qd R 301; Sugden v Crawford [1989] 1 Qd R at 686 and Moriarty v Sunbeam Corporation Limited [1998] 2 Qd R 325 … … The body of evidence which a plaintiff collects or, as it may be put in terms of the expressions used in section 30, her assemblage of ‘material facts’ will only constitute a ‘decisive’ election when an appropriately advised reasonable woman in her position is possessed or would, if she had inquired in appropriate fashion, be possessed of what she would regard as reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against her must necessarily always commence her proceedings when she has no more than a hint of the existence of a necessary link in her chain of proof but, of course, if being at that point she delays he will do so at her peril because she will only subsequently persuade herself if she can persuade a judge that she did not know enough or would not, even if she had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time.” [68] In that case, Davies JA dealt with the difficult question of an applicant’s means of knowledge, faced with conflicting medical reports. The important thing was to identify the fact of the existence of the causal relationship, rather than evidence of that fact. The task then is to work out when that fact comes within a person’s means of knowledge. The Evidence -- 27 of 38 -- 28 [69] The “material fact” which Mrs Christensen relies on, in asking for an extension of time, is that the applicator used in her procedure was not properly calibrated, so that the Filshie clips which were applied were not securely closed, and did not completely block both of the fallopian tubes. This application focuses on the use of a defective applicator, and its consequences for Mrs Christensen. [70] Mrs Christensen spoke to Dr John Hemming, who delivered her baby by caesarean section. After the surgery he told her that the Filshie clips appeared to be in place and that the failure of the procedure was a natural phenomenon. That advice is reflected in the later written report that he gave to her solicitors, dated 3 June 1998. He had observed that the clips were applied to the fallopian tubes, and were totally across their structure, as would have been desirable. They were still in their original position, and apparently “doing their job”. [71] Mrs Christensen was not convinced that the failed procedure was a natural phenomenon. She believed that something must have gone wrong. She went to see two firms of solicitors to discuss the prospects of making a claim for the failed procedure. She obtained reports from Dr Hemming (June 1998), Dr Keeping (October 1998) and Dr Cook (August 1999). Supreme Court proceedings were started on 13 August 1998. [72] The earlier reports, from Dr Hemming and Dr Keeping, make no mention of problems with the applicator. There is no suggestion that Dr Salter was at fault, in any way. Then, over a year later, in his report of 5 August 1999, Dr Cook mentioned the role of a faulty applicator. He explained that the use of the Filshie clip had become the most commonly performed method of sterilisation of women in -- 28 of 38 -- 29 Australia. There was a risk of failure in all methods of sterilisation, while the clips had a low failure rate, of about 1 in 500. The complication rate was also extremely low. The Filshie clip had the advantage, in that it was the easiest form of sterilisation to reverse, so that a woman might be made fertile again. He then went on to conclude his report by saying: “the whole issue of failure of Filshie clip devices has come about, as you are well aware, following a series of failures occurring at a New South Wales teaching hospital. The only identifiable problem has been that the Filshie clip applicator needs to be calibrated and serviced at regular intervals and that, as long as the application device is found to be within those limitations, then given good technique and experience then all due care would appear to have been in place for the application of these clips. With specific reference to Mrs Christensen’s case two issues would appear to me to be pertinent. That one, as long as there was informed consent and that she was aware of a failure rate in the first place and two that the applicator used to apply her clips was within calibration and given the experience of the applicator, this failure rate would not be seen as negligence”. While Dr Cook’s words are not completely clear, he appears to be saying there was no negligence in this case, on the assumption that the applicator was working within the limits of proper calibration at the time. [73] On the basis of the reports from the three doctors (all obstetricians and gynaecologists) her then solicitors considered that she had poor prospects of success in the Supreme Court proceedings, based on the evidence they had obtained. She was advised not to proceed with the action. A notice of discontinuance was filed in the Supreme Court on 31 August 1999. [74] However, she continued to believe that there must have been a mistake in some part of her procedure. On the day after she was advised not to proceed, she read an article in a newspaper (its details are not revealed) which prompted her to contact -- 29 of 38 -- 30 her present solicitors. They told her that there had been previous problems with the servicing and calibration of the applicators used to apply the clips. That had led to the Therapeutic Goods Association issuing a safety warning about the use of applicators which had not been properly calibrated and serviced. She instructed her solicitors to obtain records from the Wesley Hospital, to see if the applicator used in her operation had been properly serviced and calibrated. However, the Wesley Hospital declined to provide the information, unless required to do so by an order of the court. [75] Mrs Christensen then instructed her present solicitors to commence legal proceedings in the District Court, with the aim of obtaining such documents by disclosure, and to ascertain whether or not the applicators used in her procedure had been properly serviced and calibrated. The claim was filed in this court on 27 April 2000. [76] It is accepted that two applicators were in use at the Wesley – one described variously as number 460 or 480, and the other number 454-7. [77] Number 460/480 was despatched from the manufacturer, Femcare in England in 1984. The first records of its repair are in September and October 1997. A Wesley Hospital note at the time said “please repair – does not close clips properly”. A further note of 10 October 1997 said that it “did not close clips properly”. It was repaired by Endovasive on 22 September 1997. This applicator had been the property of Dr Allen. He, and members of his team, including Dr Chenoweth, were said to be the only ones to use it at the Wesley Hospital. He donated it to the -- 30 of 38 -- 31 Hospital in September 1998. There is no evidence that Dr Salter was a member of his team. [78] (In her affidavit, at para 39, Mrs Christensen swears that she has been advised by her solicitors that “from the documentation it appears that the relevant applicator used in my procedure was identified as number 480.” However, there is nothing in her solicitor’s affidavit, or in the disclosed documents exhibited to it, to demonstrate that. That is, presumably, why counsel’s submission on her behalf referred to both applicators, and made no assertion that number 480 was the one that was used). [79] Applicator number 454-7 was shipped from Femcare in April 1991. The first record about it refers to a service in April 1995 (see that suggestion in Freehills’ letter of 17 December 2001. No source is identified). The first repair record disclosed by the Wesley Hospital shows that it was sent to Tool and Instrument Engineering on 17 April 1998. On 18 January 1999, it was sent to Stubber Technologies, where it was found to be within specification. (Ex. 1, letter Sparke Helmore, 11 December 2001) [80] A manual for the use of applicators is dated May 1998. However, it seems likely that a manual in similar terms existed at the time the instruments were purchased – see the Tool and Instrument Engineering fax of 28 September 1998 (TVH 15). [81] It is clear enough that attention was focused on the importance of proper calibration of the applicators in 1998. Queensland Surgical Pty Ltd issued a Safety Alert on 7 September 1998, drawing attention to a series of failed procedures with the applicator, it said: “if your Filshie clip applicator has not been serviced and calibrated by an approved Femcare repairer within the last 12 months the equipment must not be used until it has been serviced and calibrated -- 31 of 38 -- 32 as it may cause a failed sterilisation … procedures that have been performed using applicators that have not been serviced for over 12 months have a potentially high failure rate …” The safety alert issued by the Therapeutic Drugs Administration followed in October 1998. [82] It can be seen that each applicator was repaired before those alerts were issued. The available records may be incomplete in not revealing previous servicing and repairs. The Wesley Hospital has given disclosure of all available service records. The Hospital is unable to show any documented service before then, though it denies the conclusion, that September 1997 was the first repair (see Deacon’s letter of 11 March 2002.) The solicitors for Femcare say that it was first serviced in April 1995. [83] The 1998 manual recommended servicing once every 12 months, or after every 100 applications. Records kept at the Wesley Hospital show that between 13 January 1995 and Mrs Christensen’s procedure on 26 August 1996, there were 75 applications of Filshie clips. [84] Therefore, some submissions on behalf of Mrs Christensen should be accepted: (a) In August 1996 there were two applicators used at the Wesley – 460/480 and 454-7, despatched from Femcare in 1984 and 1991 respectively; (b) The defendants have disclosed no documentation which demonstrates any servicing or calibration of either applicator before October 1997. [85] The following additional factors were assumed or proved to be established by the evidence – -- 32 of 38 -- 33 (a) Only a Femcare repairer could re-calibrate an applicator. There was no supply of jigs or fittings to enable the instrument to be checked before each procedure. Others did not have access to Femcare’s specifications. (See TDH 15 and 16). (b) The “Operating Room Instructions” (TDH 13) disclosed by the Wesley Hospital are undated. However, there appears to be a common assumption that it was a document dating from May 1998. (See exhibit 1, letter 26 November 2001, Mr McBride’s submissions to that effect, and the absence of any submission from Mr Grant- Taylor, that TDH 13 pre-dated this operation). It contains this warning at page 11:- “Like all mechanical equipment the Filshie equipment will deteriorate with use and age. It is strongly recommended that the equipment is serviced and re-calibrated by the manufacturer or their appointed agent at least once a year or every 100 usages”. (c) It is not known what instructions about maintenance were given before August 1996. It may be accepted that the equipment had to be serviced or repaired. It is very likely that a 12 month service interval was required – see the Safety Alert, and the Tool and Instrument Engineering letter (TD 15) which says that “the solution suggested by both parties is a 12 month service program – this is not a solution but a continuation of the original service program as defined by the manufacturer when the instruments were purchased …” (d) Dr Cook mentions “the series of failures occurring at a NSW teaching hospital”. There is no evidence of similar failures at the Wesley Hospital. That is to say, there is no evidence of other -- 33 of 38 -- 34 failures at the Wesley Hospital, to lead to an inference that the sort of failures that occurred in New South Wales also happened at the Wesley, because of faulty calibration. (e) There is no expert opinion here, to suggest that Dr Salter should have “enquired whether the applicator had been properly serviced and calibrated at all or in accordance with Femcare’s instructions before using it” (further amended statement of claim para 8.1). While it is easy to accept for present purposes that the Wesley Hospital would have been responsible for the instruments it owned and supplied for surgery, it is not readily apparent that a similar duty applied to Dr Salter. There was no evidence to that effect. While evidence of the usual practice of surgeons is not conclusive, it could be the basis of a finding of negligence. No reference was made to any decided case, text or paper which might have illustrated such a standard of care. (f) It is further alleged against Dr Salter that he “failed to inspect the attached clips to ensure that the upper jaw had been fully compressed and securely locked under the nose of the lower jaw”. There is nothing to suggest that such a visual inspection could have made any difference, if the applicator were faulty in its calibration. Dr Hemming inspected the clips and found them to be properly in place. There is no evidence to sustain that allegation. (g) There is a final allegation, that Dr Salter “failed to place the Filshie clips on the isthmic portion of the tubes, 1-2cm from the cornu”. In the reports so far, there is nothing to suggest that his placing of the clips had any connection with the pregnancy. There is no evidence -- 34 of 38 -- 35 to sustain the allegation of a wrong placement, or a wrong placement which had any effect. [86] The absence of any real evidence against Dr Salter is significant in two respects. First, did “material facts of a decisive character” come to Mrs Christensen’s attention in the year before the proceedings were commenced in this court, on 27 April 2000? If they did, then do those facts establish a prima facie case of negligence? [87] It can be accepted that the decisive facts have been progressively coming to her knowledge during the disclosure process. Additionally, she has to show “that there is evidence to establish the right of action … (s.31(2)(b)). That is, she must demonstrate something like a prima facie case. This is not the trial of an action. It is not an application for summary judgment. She will meet the above requirement if she can point to the existence of evidence which she can reasonably expect will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove her case. (See the Glaxo decision, at 434-435, per Macrossan CJ). [88] Even if the above evidence remains unchallenged, there is not enough to support a case against Dr Salter. Even if it be accepted that the applicator was faulty, there is nothing to suggest that he was under a duty to check the hospital’s care of its equipment. There is no evidence to sustain a case against him. The application must be dismissed, as against him. [89] The hospital, the distributor, and the manufacturer of the equipment may be in a different category. As against them, is there evidence to show a neglect of the need to service and re-calibrate an applicator, and that the defective applicator was a -- 35 of 38 -- 36 material cause of the pregnancy? That evidence must be capable of outweighing the competing explanation, that this is one of those cases where there has been an unexplained pregnancy, despite all proper steps being taken. For example, in Hancock v State of Queensland [2002] QSC 27 the plaintiff failed, as negligence could not be demonstrated. It was found that the plaintiff was in the unfortunate category of a failed sterilization which was a risk of the procedure. The only allegation of negligence against the Wesley Hospital is that it failed to calibrate or service the applicator in accordance with instructions delivered by the third, fourth or fifth defendants. Wider allegations are made against the fourth and fifth defendants, the distributor and manufacturer respectively. [90] On balance, it might be accepted that there is just sufficient evidence to satisfy the Act’s requirements. The evidence seems to be marginal and inconclusive. Certainly, there is no actual evidence that the applicator was faulty at the time, and that the fault caused the pregnancy. However, at this stage, it would be wrong to conclude that there is no evidence which could lead to an inference, when it is properly examined, that negligence is proved. Mrs Christensen appears to have the slimmest of cases, but that is sufficient. The Discretion [91] It is necessary to turn to discretionary considerations. Mrs Christensen is the applicant for an extension of time and has to show that the justice of the case requires the extension – see the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Even if the conditions in ss. 30 and -- 36 of 38 -- 37 31 are satisfied, she still bears the onus of showing that the justice of this case requires the discretion to be exercised in her favour. [92] Prejudice to a defendant is a factor to be considered. Actual prejudice may be demonstrated, or it may be presumed (as in Taylor’s case) that there is inevitable prejudice caused by the passing of time. Here, significant evidence was destroyed within about a month of the birth of Mrs Christensen’s son. Dr Hemming removed the clips, and part of the fallopian tubes, while performing a sterilisation procedure at the same time as the caesarean birth. He sent the clips and the tubes to pathology. A report was obtained. The tissue and the clips were disposed of about 28 days after the pathologist’s report (affidavit of K P Philp). [93] It was submitted for the defendants that the destruction of the clips and tissue was a prejudicial step, in that they would have revealed, if properly examined, the true position. It is submitted for Mrs Christensen that there is no real prejudice, as the destruction was so long ago, and that the position has not changed since the expiry of the limitation period. However, in principle, that is the wrong approach. As the majority of the High Court in Taylor’s case explained, prejudice at any stage is to be taken into account, not the marginal increase in prejudice since the expiry of the limitation period. While a defendant has to bear the prejudice during the limitation period, it is a different matter when an extension of the period is being considered. [94] It should also be kept in mind that a Supreme Court action was on foot between 13 August 1998 and 31 August 1999. Dr Cook’s report was obtained earlier in August, and considered. That report did not mean that Mrs Christensen and her then solicitors were in command of all the facts about the calibration of the applicator. -- 37 of 38 -- 38 However, it was a significant step towards her present position, as it drew attention to a possible explanation which could have been litigated in the Supreme Court action. [95] The acquiescence of the defendants so far in the present proceedings should not be overlooked. Dr Salter’s application was delayed, and in the meantime the pleadings and a good deal of disclosure was made. All the parties seem to have cooperated in making disclosure and answering informal interrogatories administered by her solicitors. It can also be said, that Mrs Christensen has been slow in making the present application, as the Limitation of Actions Act point was raised at an early stage in the defences. [96] The disposal of the clips and tissue was a misfortune. A careful examination should have answered a substantial issue which is now clouded in uncertainty. That is prejudicial to both parties. Presumably, no one thought it necessary to preserve the clips. Mrs Christensen had not consulted solicitors at that stage. [97] The relevant factors are the prejudice to the defendants, and the decision to discontinue the Supreme Court proceedings when they could have been used to raise the issue and obtain disclosure of the defendants’ documents. Those factors are sufficient to lead to an exercise of the discretion, to refuse to extend the limitation period. In addition, the weakness of the available evidence in Mrs Christensen’s favour should also be kept in mind. [98] Mrs Christensen’s application to extend time is dismissed. -- 38 of 38 --