Neutze v Clarke & Anor [2022] QSC 155
- Proceedings filed on 4 October 2018 in the Supreme Court of New South Wales. Proceedings transferred to Supreme Court of Queensland on 1 July 2019.
- Decision delivered on 25 July 2022.
Background
The Plaintiff and Applicant, Catherine Neutze (the Plaintiff) is a 52-year-old woman (as at 2018) who came under the care of the first and second defendants, being Dr Barton Clarke and the State of Queensland (collectively ‘the defendants’).
In 2010, the Plaintiff consulted the first defendant, an obstetrician and gynaecologist, in relation to her urinary incontinence (the Plaintiff’s condition). The first defendant practiced, inter alia, at the premises of the second defendant.
The Plaintiff has pleaded a claim in negligence (the claim). The claim is statute-barred pursuant to section 11(1) of the Limitation of Actions Act 1974 (Qld) (the LAA). The Plaintiff filed an application for an extension of time pursuant to section 31 of the LAA.
The Plaintiff was treated by the first defendant, including two surgeries in 2011. The Plaintiff alleged that the first defendant:
- Advised the Plaintiff that the Plaintiff’s condition should be treated with the surgical insertion of a mid-urethral sling;
- Did not discuss the literature and information known by the defendants concerning complications with the mid-urethral sling; and
- Did not provide the Plaintiff with other surgical or alternative options, including low risk conservative measures, so that the Plaintiff could make an informed decision and provide informed consent regarding the procedure.
The Plaintiff’s condition did not resolve following both surgeries in 2011 (the surgeries) and continued to deteriorate.
The Plaintiff alleges that, inter alia:
- The defendants failed to warn or provide her with any adequate information in respect of risk concerning the suitability of the medical products.
- The defendants failed to provide her with the information a reasonable person would have wanted to be given before deciding whether or not to undergo the treatment.
- Had the Plaintiff received the information which ought to have been provided to her by the defendants, then she would not have agreed to the surgeries.
The key timeline of events is as follows:
- 2011 – the Plaintiff underwent the surgeries.
- 5 December 2013 – the Plaintiff received a report from Dr Lander.
- 17 March 2014 – the Plaintiff received a report from Dr Reid.
- 2014 – the Plaintiff consulted at least three separate solicitors/firms for representation.
- 25 July 2017 – the Plaintiff received a further report from Dr Lander.
- 25 October 2017 – the Plaintiff provided the abovementioned reports to her current solicitors, AJB Stevens Lawyers (AJB).
- 11 December 2017 – the Plaintiff received advice from AJB that she had a viable claim against the defendants (the advice).
- 4 October 2018 – the Plaintiff filed proceedings in the Supreme Court of New South Wales.
Pursuant to section 31 of the LAA, the Plaintiff sought to rely on the advice from AJB on 11 December 2017 as a material fact of a divisive character, in order to extend her limitation period. The Plaintiff argued that the material fact of a decisive character which relates to a right of action was not within her means of knowledge until the receipt of the advice from AJB.
The defendants’ position was that the advice from AJB was ‘an introduction of knowledge of the legal effect of facts already known’, and that it was the Plaintiff’s failure to take reasonable steps to investigate the significance of the reports from Dr Lander and Dr Reid.
It was noted that, prior to consulting AJB, the Plaintiff had approached at least three other solicitors/firms, during which she was in the possession of Dr Lander’s first report and Dr Reid’s report. There was therefore an apparent lack of proactive steps taken by her to proceed with her claim between 2014 and 2017 .
Justice Hindman considered the primary issues of the present case were:
- Was the advice a material fact such that section 31 of the LAA is satisfied?
- Did the Plaintiff take reasonable steps to investigate the significant of the reports and to ascertain material facts of a divisive character?
- Were the reports from Dr Lander and Dr Reid a material fact?
- Does an extension of the limitation period impose any prejudice against the defendants?
The Decision
The Plaintiff’s application was dismissed, with costs of the application ordered against the Plaintiff.
Leave was granted under rule 376(3) of the Uniform Civil Procedure Rules 1999 for the claim and statement of claim to be amended by the Plaintiff, with the pleaded negligence action removed.
Ratio
Justice Hindman considered the effect of the decision in Do Carmo v Ford Excavations Pty Ltd [1984] 154 CLR 234, where the Court considered both section 31(1)(a)(i) of the LAA and whether the existence in law of a right of action is a relevant material fact. Per Justice Hindman:
‘[21] …The question of construction was if the words “the fact of the occurrence of negligence” refer only to the acts or omissions alleged to constitute the relevant tort or instead refer to legal concepts or causes of action.’
Justice Hindman agreed with the conclusion reached in Do Carmo v Ford Excavations Pty Ltd, and further considered that the same reasoning ought to be applied to section 31(1)(a)(iii) and 31(a)(v) of the LAA, as these subsections are ‘likewise concerned with facts, not legal advice about those facts.’
Justice Hindman then considered whether there was a material fact of a decisive character in relation to the medical reports provided to AJB on 25 October 2017. Justice Hindman was satisfied that the first two reports disclose material facts of a decisive character relating to the relevant right of action, however the third report adds nothing that the Plaintiff would not have already known after receiving the first report.
On this basis, Justice Hindman found that the allegations of breach of duty in the statement of claim are broad enough to capture a case that:
- The Plaintiff should have been given advice about the desirability of the surgeries in light of her immobile urethra; and
- The Plaintiff should have been given advice about the possibility of mesh pain syndrome arising as a consequence of the surgeries.
Accordingly, these are material facts that need to be established to the negligent character of the defendants’ alleged negligent failure to warn the Plaintiff.
Justice Hindman then looked at was whether the Plaintiff took all reasonable steps to find out the facts before receiving the advice from AJB on 11 December 2017. The Plaintiff was in possession of the two relevant reports by about 17 March 2014, and did not take significant, appropriate steps between September 2014 and October 2017. Justice Hindman found that it was not reasonable, even considering her personal circumstances at the time, for the Plaintiff to allow more than two further years to pass without attempting to obtain the advice needed to justify her claim.
Prejudice to the Defendants
Justice Hindman considered whether there was any prejudice against either of the defendants in extending the limitation period. It was held that the effluxion of time is likely to adversely affect Dr Barton Clarke’s recollection of the relevant conversations, in addition to Dr Clarke’s mental decline. Justice Hindman considered that there was a risk that a fair trial could not be held where the Plaintiff intended to rely on conversations where Dr Clarke’s ability to recall the conversation was impaired. On this basis, Justice Hindman considered that a fair trial was at least improbable.