Brettell v Dalby Hospitals Board [1991] QSC 31

10 30 40 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR JUSTICE COOPER BRISBANE, 22 FEBRUARY 1991 No. 1311 of 1990 ----~~-----.,....,REVISED COPIES .ISS.t:JEb Court !lep,:nting Bureau Date,~/ <S 1,91 ----......:(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: LIONEL BRETTELL -and- THE DALBY HOSPITALS BOARD JUDGMENT Plaintiff Defendant HIS HONOUR: The order I make is this: the period of limitation within which to commence the action for damages for personal injuries suffered by:.the plaintiff in the course of his employment in or about October 1980 as a result of the negligence and/or breach of duty and/or breach of contract of employment on the part of the defendant, its servants or agents, be extended to 21 August 1990. I order that the costs of and incidental to the application be ·each party's costs in the cause. I publish my reasons. -Govt. PrintAr, Old. 1 10 20 30 40 50 60 -- 1 of 13 -- IN THE SUPREME COURT OF QUEENSLAND No. 1311 of 1990 BETWEEN: LIONEL BRETTELL Applicant AND: THE DALBY HOSPITALS BOARD Respondent REASONS FOR JUDGMENT - COOPER J. Delivered the 22nd day of February, 1991. CATCHWORDS: Counsel: Mr. L. Stephens for Applicant Mr. D.B. Fraser for Respondent Solicitors: R.F. Hill for Applicant Henderson Trout for Respondent Hearing date: 17th September, 1990. 0 -- 2 of 13 -- IN THE SUPREME COURT OF QUEENSLAND No. 1311 of 1990 BETWEEN: LIONEL BRETTELL Applicant AND: THE DALBY HOSPITALS BOARD Respondent REASONS FOR JUDGMENT - COOPER J. Delivered the 22nd day of February, 1991. This is an application pursuant to s. 31 of the Limitation of Actions Act 1974 (as amended) (The Act). In 1980 the applicant was employed by the defendant as a boiler attendant at the Dalby Hospital. In October or November 1980 the applicant fell backwards over a wheelbarrow which had been placed behind him by another employee. The applicant sustained a cut to the ankle on the upper right-hand side of his right foot. Mr. Frazer, counsel for the respondent conceded that there was evidence to establish a right of action apart from a defence founded upon the expiration of the limitation period (s. 31(2)(b)). The applicant continued to work for approximately three weeks after sustaining the injury. The laceration to the ankle began to ulcerate at this stage and the ankle swelled. He consulted a medical practitioner at the Dalby Hospital and was admitted as an in-patient in approximately December 1980. The treatment at this time was washing the ulceration and resting the leg. He was discharged in December 1980 but was readmitted again -- 3 of 13 -- 2 immediately before Christmas. Whilst an in-patient he was diagnosed as suffering from gall stones and underwent surgery for their removal. In all he spent approximately two and a half months in hospital. In February 1981 the applicant was admitted for a skin graft to be performed on the site of the ulceration on the ankle. This was performed on 23rd February, 1981. The applicant received workers' compensation between 26th January, 1981 and 24th April, 1981. The applicant deposed that as at April 1981 he had suffered no economic loss and had no permanent disability. Consequently he "felt that it was unnecessary for me to consider legal action and that it would have been expensive and unprofitable to me". The applicant returned to work in April 1981. The right leg gave no difficulty until February 1987 when ulceration broke out again on the right foot. Despite the ulceration the applicant continued working and attended for daily washing of the ulceration at the hospital. This continued for 12-18 months. Because the foot would not properly heal the applicant sought advice from his local general practitioner who referred him to a Dr. Presley a surgeon in Dalby. Dr. Presley continued to prescribe daily bathing of the ulcerated area, however the foot did not heal. The applicant then sought medical advice in Toowoomba. He was referred to a number of specialists and ultimately to Dr. Melville, a vascular surgeon. So far as the material discloses, on or about 16th May, 1989 the applicant was tested at the General Hospital in Toowoomba by having dye injected into the thigh. The applicant swore that -- 4 of 13 -- 3 Dr. Melville when he received the results of the tests informed the applicant that "I had plenty of blood going down to me ankle". The applicant was admitted to St. Vincent's Hospital The ulcer was debrided and a skin graft was Toowoomba. performed. The graft failed. In May or June 1989 a lumbar sympathectomy was performed in the Toowoomba Hospital by Dr. Melville. In cross-examination the applicant gave the following evidence which I accept:- "You have also said that you didn't know what was the cause of the continued ulceration of your right foot until you spoke to Doctor David Robinson on or about 27 Sept'ember 1989. The doctor who performed the sympathectomy discussed that operation with you, didn't he?-- Mmm. And he told you it was to increase the blood supply to your leg?-- Mmm, that is right. Didn't you appreciate that the blood supply in your leg was inadequate and that's why the operation was being carried out?-- I did after I come to Brisbane, I did, but when Doctor Murray Melville done the operation on me in Toowoomba he told me I had sufficient blood going to me ankle, but after I walked out of Toowoomba Hospital and come to Brisbane I went and saw Doctor Robinson on the Terrace and went to the Holy Spirit the same day and had the dye test put through me leg and the next day Doctor Robinson rang me and I went straight down to him on the terrace and he told me I had little or no blood going to my ankle at all. Wasn't it the case .that you were informed after the first dye test in Toowoomba that there was an adequate blood supply?-- There was an adequate blood supply going to my ankle." The applicant in his affidavit deposed as follows:- " 11 . The various doctors I consulted could not give me any reason why my right foot became blistery and ulcerated. Because I could obtain no explanation for my difficulties from the various doctors I was referred to in Toowoomba, I attended DR. DAVID ROBINSON on or about the 29th September 1989. Prior to attending Dr. Robinson I had no knowledge as to the cause of the continued ulceration of my right foot. -- 5 of 13 -- 4 1 2. It was Dr. Robinson who told me, on the 29th September 1989, that the ulcer on my right foot had a significant ischaemic element to it; that is, he told me that I had vascular trouble which was the reason why my ulcer would not heal. He told me that I had two choices - vascular surgery or amputation. 13. No other doctor had made such a diagnosis prior to this time. 14. Since my amputation I have returned to work at my old job. However, I have difficulty with theprothesis and as a result further pressure is being placed on my left ankle. I fear that if I continue to work I may lose my left foot as well. As a consequence I fear that I have lost income and lost earning capacity. 15. As a consequence of my finishing work early I shall lose superannuation entitlements. 16. I first sought legal advice from R. F. Hill & Associates on the 13th February 1990 and subsequently gave instructions for them to commence the withinaction on the 21st day of March 1990. 17. Between the 18th October 1989 and the 13th February 1990 I was recuperating from my operation and learning to walk with my new prothesis. It was not until early February that I was sufficiently mobile to be able to go and see a firm of solicitors. 18. As soon as I was sufficiently mobile to see a firm of solicitors I did so because I felt that the loss of my leg would give me a right to a substantial claim for damages for loss of amenities and for economic loss in the future. 19. Prior to the 29th September 1989 I was always of the view that the cut to my leg was only superficial or minor and would heal. It is for these reasons that I had not previously commenced an action for damages." On 10th October, 1989 a micro-vascular vein graft was used to connect the peroneal artery to the posterior tibial artery to improve the blood supply to allow surgery to heal the ulcer. Unfortunately there was no significant sign of improvement and on 18th October, 1989 a below knee amputation of the right leg was performed. -- 6 of 13 -- 5 The writ of summons was issued on 20th August, 1990. It was argued by the respondent that the applicant knew or ought with appropriate medical and legal advice to have known by May or June 1989 at the latest that he had a worthwhile claim against the respondent and ought in his own interests to have pursued it by that time. It was submitted that the advice of Dr. Robinson on 29th September, 1989 did nothing more than make an already worthwhile action more so (Taggert v. The Workers' Compensation Board of Queensland [1983] 2 Qd.R. 19). The applicant when he was hospitalised in February 1981 suffered no economic loss. During the period 1981 to February 1987 the applicant suffered no economic loss. When ulceration broke out under the skin graft in February 1987 the applicant continued in employment until he entered hospital in Toowoomba on 16th May, 1989. As appears from the report of Dr. Hirschfeld of 22nd May, 1990, during the period from the occurrence in 1987 of the ulceration under the original graft until he saw the dermatologist and then the vascular surgeon in Toowoomba, over a period of 12-18 months "the ulcer would heal to a certain extent and then deteriorate again". Notwithstanding that the ulcer was painful at night it did not prevent the applicant from working. Therefore he suffered no economic loss during this period. From 16th May, 1989 until 16th September, 1989, during which period he had been hospitalised in Toowoomba for approximately 20 weeks receiving attention to the ulcer and undergoing various tests and procedures aimed at cleaning up the ulcer, the applicant was being paid his accumulated sick pay. In consequence he had no economic loss during this period. -- 7 of 13 -- 6 The applicant was not cross-examined on his sworn statement that he considered that the cut on his leg was only minor and would heal with appropriate care. The applicant had in 1985 nicked his shin bone while at work. This caused the site to ulcerate but it healed within a short time and caused the applicant no difficulty. I find that the applicant had no reason before 29th September, 1989 to suspect that the ulceration to his right foot could not be cured. All of the procedures in Toowoomba were directed at performing a skin graft and increasing blood flow to promote healing of the ulcer. There is no suggestion on the material that they were other than appropriate medical procedures. I accept the evidence of the applicant that he did not know prior to 29th September, 1989 that his ulcer would not heal because it had an ischaemic element to it. Dr. Robinson in his report dated 30th May, 1990 makes the following comment:- "It was my impression at the time that his ulcer had a significant ischaemic element to it and I sort the opinion of a vascular surgeon, Dr. S.A. Mellick, who concurred and suggested that . a small di version of blood from one artery in the leg to another may alleviate the situation and improve the blood supply,thus allowing surgery to heal the ulcer. Surgery was performed on the 10th of October, 1989,and a micro-vascular vein graft was used to connect the peroneal artery to the posterior tibial, however, at operation there was a very poor lumen in the posterior tibial artery, and I felt that the operation was unlikely to help the situation. Post-operatively, he did not show any significant signs of improvement in blood supply, and on the 18th of October an amputation was performed by Dr. J. Quinn. He was ultimately discharged from hospital on the 6th of February, 1990, and has sincereturned to work at his old job." -- 8 of 13 -- 7 Having regard to the procedures undertaken in Toowoomba and the statement of Dr. Robinson I find that appropriate medical advice from May 1989 until 10th October, 1989 was that with an adequate blood supply the ulcer could be healed by skin graft and that such procedures as were necessary to restore or improve blood supply ought to be undertaken. If the blood supply could have been restored and the ulcer healed then the applicant could return to work and would be symptom free as had been the situation in 1981. It was not until the micro-vascular vein graft failed that the need for an amputation became a reality and the applicant then became aware of facts which indicated the possibility of significant future loss of amenity, impairment of earning capacity and the prospect of future economic loss if the applicant could not return to his employment with the defendant or could not find a similar position. The applicant must show that he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it (Moriarty v. Sunbeam Corporation Ltd. [1988] 2 Qd.R. 325 at 333, 336; Berg v. Kruger Enterprises [1990] 2 Qd.R. 301 at 304-5; Byers v. Capricorn Coal Management Pty. Ltd. [1990] 2 Qd.R. 306 at 307. Until 29th September, 1989 and thereafter the applicant had no interest in taking proceedings against the defendant. He had suffered no economic loss of any significance, as he had received workers' compensation during the period and any successful action would see the workers' compensation payments repaid to the Board. He was optimistic that the outbreak of the ulcer in 1987 would -- 9 of 13 -- 8 clear up with appropriate treatment and it appears to have improved from time to time in the period until May 1989, only to break down again. When the situation appeared not to be improving he sought further specialist medical treatment in a large Queensland provincial centre. As at 20th August, 1989 competent medical advice was that the ulcer would clear up with appropriate treatment. As at that date appropriate legal advice would have been that the applicant had a claim for moderate past pain and suffering and loss of amenities with reasonable prospects of success. What the applicant must show is that a reasonable man in his position with the knowledge which he had at 20th August, 1989 viewed objectively would not have sued in his own interest (Taggert at 24). The Act provides ins. 30(b):- "(b) Material facts relating to a right of action areof a decisive character if but only if a reasonable man knowing those facts and havingtaken 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 ofaction; and (ii) that the person whose means of knowledge is in question ought in his own interests and taking his circumstances into account to bring an action on the right of action." The section does not require, nor is it the policy of the law that persons should sue whenever they have an opportunity of doing so ( Royal North Shore Hospital v. Henderson ( 1986) 7 N.S.W.L.R. 283 at 287; Byers (supra) at 308). In the instant case the applicant has listed as his reasons for not acting prior -- 10 of 13 -- 9 to receipt of the advice from Dr. Robinson and the subsequent amputation of his leg the following:- (a) That he sustained no economic loss in 1981. (b) After surgery on 23rd February 1981 the injury cleared up and left no residual disability. (c) Because of (a) and (b) above he felt that it was unnecessary to consider legal action. (d) Any legal action would have been expensive and unprofitable to him. (e) Any legal action might have reflected badly upon him and that he might have lost his job and that the defendant was the only employer in the district that offered employment commensurate with his skills. (f) Prior to 29th September, 1989 his belief and expectation that the cut to the leg and the ulcer would heal with appropriate treatment. Although the applicant conceded that fear of losing his job did not prevent him fro~ suing prior to the amputation, I consider that objectively the possibility that it might act to the prejudice of a reasonable person placed in his circumstances as an employee ip Dalby, as one of the matters influencing a decision not to sue the defendant prior to 26th August, 1990 is reasonable. I am satisfied that the failure of the applicant to institute proceedings in the absence of the advice of Dr. Robinson and the fact of his leg being amputated was objectively reasonable. The advice of Dr. Robinson and the possibility of amputation had significant consequences for the applicant and were material -- 11 of 13 -- 10 facts relating to the personal injury he had suffered. He was aged 53 at the time he received the advice and ultimately underwent the operation. There were limited job opportunities in the Dalby area as a boiler attendant. His ability to work as a boiler attendant depended upon his ability to use a prothesis adequately. His earning capacity to some degree would be permanently impaired by the amputation. On 13th September, 1989 his accumulated sick leave ceased and thereafter he was placed on sickness benefit. So that on 29th September, 1989 the applicant was faced with the real threat of significant future economic loss. Additionally, he was faced with a real and permanent impairment of his amenity of life with the possible amputation of his leg. The possibility became a reality when the vein graft failed. I am satisfied that the advice of Dr. Robinson was a material fact of a decisive character relating to the cause of action and that such fact 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, namely, October 1983. Having regard to the time taken to recuperate the applicant acted expeditiously in retaining solicitors and seeking legal aid. Proceedings were instituted at an early time after the granting of legal aid. I find that there has been no unreasonable delay since the applicant received the advice of Dr. Robinson in instituting the proceedings against the defendant. I order that the period of limitation within which to commence an action for damages for personal injuries suffered by the plaintiff in the course of his employment in or about October -- 12 of 13 -- 11 1980 as a result of the negligence and/or breach of duty and/or breach of contract of employment on the part of the defendant, its servants or agents be extended to 21st August, 1990. I order that the costs of and incidental to the application be each parties costs in the cause. -- 13 of 13 --