A recent decision from Justice Brown in the Supreme Court of Queensland saw a woman’s time extension application denied. The woman suffered left leg palsy. This was allegedly caused by penicillin injections and operations performed whilst she was a child. The woman was seeking a time extension in order to bring a claim in personal injuries. However, she failed to prove that the claim could not have been brought forward sooner.
Woman Suffered Injury Inflicted from Childhood Medical Treatment
The applicant had suffered from physical and cosmetic issues with her left leg since she was young. Those issues included: left leg palsy, complications related to foot drop of the left leg, arthritis, loss of sensation, and vulnerabilities associated with those conditions. The applicant’s condition affected her self-confidence in her career. The first respondent was a general practitioner. The second respondent was a surgeon at the third respondent, the Mater Hospital.
Prior to 1978, the first respondent gave the applicant intramuscular injections of penicillin into the buttocks when the applicant was three months old. These injections allegedly damaged the left sciatic nerve. The first respondent denied giving the applicant the injections. He also could not remember meeting the applicant or her mother. Between 1978 and 1991, the second respondent carried out sixteen operations on the applicant’s left leg. Allegedly the doctors negligently advise the applicant’s parents about two of those sixteen operations.
Time Extension Denied for Injury Inflicted in Childhood
However, claims for personal injuries are subject to time limits. The time limit for the applicant in this case expired when she turned 21. This on or about, 16 December 1996. As a consequence, after that date, any claim for damages arising from the injections and operations performed by the first and second respondents, were out of time.
At 42 years old, the applicant sought an extension of time to allow her to sue the respondents for damages in negligence. In order for The Court to grant an extension the applicant had to show that there was a material fact of a decisive character relating to the right of action in negligence. The applicant must prove that this material fact was not in her knowledge until it was too late. That is to say that, there must have been something that the applicant did not know about the treatment or her condition which could have given rise to an extension of time.
At law there is a requirement for people to take all reasonable steps to find out any material facts. Whether the applicant knew of a material fact, or could have taken reasonable steps to ascertain a material fact, was in issue for Justice Brown. The court had to also decide whether there was a defence for the respondents, other than the time limit, and if there could be a fair trial, in light of the passage of time since 1991.
Time Extension Denied Due to Knowledge of Material Facts
The applicant submitted to the court that her left leg condition
s were attributable to the penicillin injections given to her by the first respondent when she was a baby, and exacerbated by the surgeries. The applicant submitted that the material facts of a decisive character that she did not know were:
- she had a deformity of her left leg;
- she had a “V” shaped staple in her foot; and
- the identity of the first respondent.
At the hearing, the applicant’s mother gave evidence that as a baby, the applicant was diagnosed with pneumonia and required twice daily penicillin injections for a week. Allegedly, the first respondent provided that treatment. In approximately 1978, the applicant’s mother took the applicant to hospital. She became aware that the applicant had an inflamed sciatic nerve, allegedly because of the penicillin injections.
Over appropriately the next 40 years, the applicant suffered myriad complications with her left leg. In November 2017, the applicant’s mother told the applicant the name of the first respondent. After the applicant received a fuller diagnosis, became tired of dealing with pain and complications, and spoke with her mother, she decided to do something about her situation. At the hearing, the applicant accepted that she had been told, prior to when she was 16 years old, that injections given to her as a baby damaged a sciatic nerve and caused the problems with her left leg.
Time Extension Denied to Prevent Unfair Trial
Justice Brown determined the applicant understood prior to the relevant date that her left leg:
- had been affected cosmetically;
- had been affected functionally;
- was shorter than her right leg;
- would fling out to the side due to a loss of control;
- had given her hip and pelvis problems, which gave rise to complications in childbirth; and
- caused her not to pursue a career in law.
Justice Brown found that the applicant to have been aware of those facts since she was 18 years old. Her Honour found her condition was attributable to a procedural misadventure from the injections.
Her Honour accepted that the applicant did not know the first respondent’s identity until November 2017. However, Justice Brown found the first respondent’s identity was within the applicant’s means of knowledge, prior to November 2017. Her Honour found that the applicant failed to establish a material fact of a decisive character that was outside the her means of knowledge.
Justice Brown also determined the evidence suggested the surgical procedures were appropriate. There was also no evidence that the use of the “V” staple was below the requisite standard of care. The court refused to exercise its discretion to grant the extension due to the 40 year time delay and the difficulties for the respondents to defend the allegations. Justice Brown found the respondents had produced evidence of actual prejudice, there was a significant chance the respondents would not be able to fairly defend themselves and the respondents would be deprived of the opportunity of a fair trial. The application was dismissed. The applicant was ordered to pay the respondents’ costs of the application.
The Relevance for Future Cases
This case evidences the necessity to be wary of time limits. Any claim made beyond the time limit can potentially prejudice defendants and reduce the chances of a fair trial. Therefore, it is important to take all reasonable steps to discover any material facts efficiently. If you do not discover material facts you may be barred from making a claim in personal injuries.
Lang v McArthur & Ors [2019] QSC 119