In Wilson v Mackay Hospital and Health Service [2021] QSC 178, the plaintiff, Ellie Ann Wilson (Ellie), brought a claim of damages for personal injuries which arose from a childhood incident at the Mackay Hospital (the respondent).
Background
The relevant incident occurred when Ellie observed her younger sister’s (Kate) death after she was assessed and taken to the Mackay Base Hospital in 1999.
The plaintiff recalled the incident as one of great distress1 and consequently suffered mental health issues growing up, which included anxiety, depression and post-traumatic stress disorder (PTSD).
Despite being successful in her professional career, the plaintiff was advised by her latest treating psychologist against increasing her work hours as she would not be able to cope due to the symptoms of her PTSD.
The plaintiff then applied under section 31 of the Limitations of Actions Act 1974 (Qld) (LAA) to extend the limitation period, which expired on 17 August 2016, and commenced proceedings against the respondent.
Issues
The issue considered by Crow J in this case was whether the plaintiff satisfied the requirements under s31 of the LAA. Crow J referred to his own judgment in Ferrier v WorkCover Queensland2 and listed five requirements an applicant must establish in order to enliven s31 of the LAA. The applicant needed to prove:3
- all material facts
- of a decisive character
- was not within the applicant’s means of knowledge until a date no more than 12 months prior to the relevant date which the extension is granted
- there is evidence to establish a right of action
- no prejudice, in the relevant sense, would be occasioned to the respondent that would justify disallowing the application.
Issues considered
Material fact of a decisive nature
On August 14 2020, Ellie received advice from her treating psychologist against taking up full time work. Crow J considered this information to be a material fact, according to s30(1)(iv) of the LAA,4 however, found it was not, on its own, of a decisive character as per s30(1)(b).5
It was not until Ellie was diagnosed with Class 2 impairment as defined in the Civil Liability Regulation 2014 (Qld)6 that Crow J concluded the diagnosis to be a material fact of a decisive nature. Crow J noted that while Ellie was previously treated for her mental health issues, she was never informed of any serious economic impact which resulted from her condition.7 As such, this was sufficient to justify the bringing of an action against the respondent.8
Means of knowledge
To establish the means of knowledge, Crow J considered what reasonable steps would a person of Ellie’s nature and characteristics undertake in order to find out the likely economic impact of her known condition of PTSD.9
Crow J referred to the judgment in Healy v Femdale Pty Ltd10 that “[t]here is no requirement to take ‘appropriate advice or to ask appropriate questions if in all circumstances it would be reasonable to expect the plaintiff to have done so’.”
Crow J accepted the plaintiff’s evidence that it was never indicated to her that she would not be able to obtain full-time employment, despite having difficulties, and so it was not reasonable for her to obtain any further advice as to the likely effect of the PTSD.11
Therefore, it was concluded that it was not until the diagnosis of a Class 2 impairment that Ellie would have the means of knowledge regarding the extent of her condition.12
Right of action
Crow J referred to the affidavit of Ellie’s solicitor13 and concluded it to be sufficient to satisfy the “evidence of a right of action”.
Prejudice
Whilst it has been identified that the respondent’s inability to obtain the record of one of Ellie’s psychologist as specific prejudice, Crow J concluded that the prejudice was minor and inconsequential.14
Furthermore, his Honour noted the distress felt by Kate’s clinician, but concluded that it did not amount to a specific prejudice. His Honour accepted that, though there was a presumption of general prejudice associated with the passage of time resulting in the dimming of recollections, he found that such prejudice was met in this case by the hospital record and the coronial inquest.15
Conclusion
Having satisfied all five requirements, Crow J allowed the plaintiff’s application to extend the period of limitation to commence an action of negligence against the respondent. The period of limitation was extended until 25 June 2021.16
Janelle Linato is a Law Student in the QLS Ethics and Practice Centre. This article is approved by Grace van Baarle, Manager and Ethics Solicitor, QLS Ethics and Practice Centre.
Footnotes
1 Wilson v Mackay Hospital and Health Service [2021] QSC 178, 6 (Wilson).
2 [2019] QSC 11, 23.
3 Wilson (n1) 29.
4 Ibid 33.
5 Ibid.
6 Civil Liability Regulation 2014 (Qld) schedule 6.
7 Wilson (n1) 44.
8 Ibid 45.
9 Ibid 47.
10 [1993] QCA 210.
11 Wilson (n1) 52.
12 Ibid 54.
13 Ibid 56.
14 Ibid 58.
15 Ibid 60.
16 Ibid 64.
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