Out of time? Does knowledge of injury count as a ‘material fact’?

By Bridget Wall and Tammy Tang

Following our recent article on limitation periods across Australia, two recent Queensland decisions, Rodgers[1]and Lander,[2]consider the extension of limitation periods under section 31 of the Limitation of Actions Act 1974 (Qld) (LAA) and what constitutes ‘material facts of a decisive character’[3]in the knowledge of the plaintiff. Under section 31 of the LAA, a limitation period can be extended for up to one year after a material fact comes within a plaintiff’s means of knowledge.

Rodgers v Chinsee [2024] QDC 55

Cassann Rodgers was a patient of Dr Ian Chinsee, a cosmetic doctor. On 29 November 2023, Ms Rodgers filed a claim against Dr Chinsee for personal injuries arising from four medical procedures he performed on her between 1 September 2017 and 14 August 2018.

On 1 September 2017, she underwent bilateral breast augmentation and a right breast crescent lift (First Surgery). During her recovery period, she experienced ongoing pain in her left breast. Upon review, Dr Chinsee found fluid was leaking from her left breast and assessed the implant had flipped.

On 23 January 2018, she underwent revision surgery on the left breast, which included re-insertion of the same implant used in the First Surgery (Second Surgery).

On 20 February 2018, both implants were completely removed due to ongoing complications, including failure of the surgical wound to heal (Third Surgery).

On 14 August 2018, Ms Rodgers underwent a second breast augmentation  procedure (Fourth Surgery), during which non-Therapeutic Goods Administration (Non-TGA) implants were used. Dr Chinsee didn’t charge Ms Rodgers for the Fourth Surgery, considering it a ‘trial case’. Before the Fourth Surgery, Ms Rodgers was aware Non-TGA implants would be used, and Dr Chinsee assured her TGA approval would be granted soon. Ms Rodgers didn’t experience any complications from the Fourth Surgery.

On 30 November 2022, Ms Rodgers had a conversation with Justine Coupland, a nurse who previously worked for Dr Chinsee. Through this conversation, Ms Rodgers became aware the implants from the Fourth Surgery were still not TGA approved.

Ms Rodgers made a complaint to the Office of the Health Ombudsman on 25 February 2023, which was referred to the Australian Health Practitioner Regulation Agency. This complaint related to Dr Chinsee’s treatment and the damage to her left breast after the First Surgery, and her concerns about the Non-TGA Implants.

Ms Rodgers served an Initial Notice of Claim on Dr Chinsee under section 9A of the Personal Injuries and Proceeding Act on 6 July 2023. The Initial Notice was limited to facts relating to the Fourth Surgery.

On 3 October 2023, plastic surgeon Dr Campbell-Lloyd produced an expert liability report, which was critical of Dr Chinsee’s treatment and management of Ms Rodgers.

On 29 November 2023, Ms Rodgers commenced proceedings regarding the treatments she received. On 22 January 2024, Ms Rodgers completed a Part 1 Notice of Claim.

Ms Rodgers’ limitation period expired no later than 14 August 2021. She brought an application under section 31 of LAA to extend the limitation period to 30 November 2023 (one year after her conversation with Ms Coupland). Dr Chinsee opposed the application.

Under section 31 of the LAA, the court could extend Ms Rodgers’ limitation period if she could establish that a material fact of decisive character relating to her right of action wasn’t within her knowledge until on or after 30 November 2022.

The court found the information provided by Ms Coupland on 30 November 2022 regarding the non-registration of the implants was not a material fact of decisive character. Before the Fourth Surgery, Ms Rodgers knew the implants weren’t yet registered with the TGA. The court didn’t consider that learning the Non-TGA implants had still not been registered by 30 November 2022 proved anything relating to the nature or extent of her alleged injury or was otherwise information relevant to an element of her claim. Therefore, it doesn’t bear the necessary quality of decisiveness.

However, the court considered that Dr Campbell Lloyd’s report constitutes material facts because of its relevance to the prospects of a successful claim. It wasn’t until Ms Rodgers received Dr Campbell’s report that she became aware the complications she experienced may not have been usual post-operative complications and could instead be attributed to Dr Chinsee’s negligence. The report also pointed out it was negligent of Dr Chinsee to reuse implants from the First Surgery in the Second Surgery.

The court was mindful that prior to receiving Dr Lloyd’s report, Ms Rodgers was aware of the post-operative complications, but these complications were in line with the risks associated with breast augmentation surgery.

The court found that prior to the expiration of her limitation period, the information available to Ms Rodgers didn’t prompt her to seek an expert liability opinion or to take steps to protect her legal rights.

The court was reluctant to deny Ms Rodgers the opportunity to establish her claim against Dr Chinsee, especially considering there is prima facie evidence of a right of action against him. The court decided that while Dr Chinsee may have suffered some general prejudice due to the passage of time, the risk of prejudice is not significant enough to prevent a fair trial.

The court allowed Ms Rodgers’ limitation period to be extended to 30 November 2023, despite ruling that the conversation on 30 November 2022 didn’t constitute a material fact.

Desmond-Bryzak v Lander [2024] QSC 72

On 28 November 2013, Harriett Desmond-Bryzak underwent surgery involving a pelvic mesh implant performed by Dr James Lander.

On 21 December 2018, she commenced proceedings for personal injuries against Dr Lander. Both parties accepted that Ms Desmond-Bryzak’s limitation period expired in December 2016 or January 2017. By this time, Ms Desmond-Bryzak was aware the implanted mesh had caused her pain and suffering, as well as a secondary psychological disorder.

Ms Desmond-Bryzak asserts she didn’t know about the relevant material facts before 22 December 2017 (one year before she commenced proceedings). The material facts included:

• Dr Lander had authoritative information available to him that obligated him to warn her that his proposed mesh procedure was experimental, there were more traditional and non-surgical options available to her and there was a risk the procedure would result in chronic pain;
• a qualified expert had expressed a view the operation wasn’t medically appropriate for Ms Desmond-Bryzak; and
• the symptoms she experienced post-operatively were caused by Dr Lander’s negligence, where those symptoms would be permanent and sufficiently serious to prevent her continuing full-time work for the remainder of her expected working life.

A reasonable person, informed of the above facts and having sought appropriate advice, would consider that Ms Desmond-Bryzak has ‘reasonable and worthwhile litigation prospects’ against Dr Lander, potentially resulting in an award of damages sufficient to justify pursuing the claim. The court also determined this reasonable person would view these facts as demonstrating that initiating such legal action was in Ms Desmond-Bryzak’s best interests.

The court accepted Ms Desmond-Bryzak’s case that she didn’t become aware of any material facts until after 22 December 2017. Specifically, it wasn’t until 25 January 2018, during a consultation with with an American gynaecologist, that she learnt of a competent opinion advising against Dr Lander’s use of the mesh in the operation. It wasn’t until 28 February 2018 that her doctor told her she should cease paid employment for an indefinite period.

The court found it wouldn’t have been reasonable to expect the plaintiff to have taken further steps before 22 December 2017 to determine whether her injury was permanent and likely to prevent her from continuing to work. Therefore, one of Ms Desmond-Bryzak’s material facts was not within her knowledge until after 22 December 2017.

Prior to 22 December 2017, various events took place, which were not considered to be material facts, including:

• Ms Desmond-Bryzak experienced immense pelvic pain when she woke after the operation in 2013 and was advised by Dr Lander the pain would subside in two years;
• due to ongoing pain, she underwent further surgeries in 2014;
• in September 2015, she joined a class action against the manufacturer of the mesh. None of her treating specialists or the class action lawyers suggested Dr Lander had been negligent in his use of the mesh; and
• in June 2017, she submitted a written statement to a Senate inquiry on pelvic mesh, expressing she wouldn’t have consented to the use of the mesh implants had she been warned about the associated risks. She criticised the medical profession broadly for its perceived lack of awareness regarding these risks. She also stated since the operation, she had been experiencing pain that affected her employment.

The court considered the claim can be fairly litigated because Dr Lander would have notified his insurer of a potential claim when he became aware of the adverse outcome of the operation in 2013. His medical records would have been preserved, and he would be entitled to refresh his memory from these records or from a contemporaneous notification to his insurer.

The court allowed the limitation period to be extended to 21 December 2018, the day she commenced the action.

Key points to consider

• In Queensland, limitation periods in personal injury matters can be extended by an application under section 31 of the LAA. Section 31 requires a plaintiff to show they became aware of a ‘material fact of decisive character’ that they didn’t have access to, or reasonably could not have discovered through enquiries, before the expiration of their limitation period.
• A plaintiff’s knowledge of an injury or pain and suffering that emerge following a treatment or procedure (especially injuries consistent with common risks of the treatment or procedure) is not sufficient to constitute a ‘material fact’. Rather, what constitutes a ‘material fact’ is the knowledge these injuries were caused by the practitioner’s negligence (supported by a qualified advisor expressing a liability opinion), and the plaintiff’s reasonable litigation prospects against the practitioner.
• The decisions reinforce that courts typically show sympathy toward injured plaintiffs who present prima facie evidence of a right of action against their treating practitioners. Medical practitioners are generally not significantly prejudiced, as evidence such as medical records and contemporaneous notifications to insurers is typically preserved, ensuring a fair trial.

This article was written with the assistance of Alex Gehrke, Law Graduate.

[1] Rodgers v Chinsee [2024] QDC 55
[2] Desmond-Bryzak v Lander [2024] QSC 72
[3] State of Queensland v Stephenson (2006) 226 CLR 197 is the leading decision on what constitutes decisive character