Languishing lawyers lose on limitations: Supreme Court finds delay from solicitors enough to bar a claim for damages
The applicant sought to commence proceedings regarding negligent medical treatment resulting in a lower leg amputation. Despite briefing solicitors in 2017 to ascertain her prospects of success, her solicitors did not obtain expert liability evidence until 2020 and allowed the applicant’s limitation period to lapse. The applicant sought to extend the limitation period. The court held that, although the favourable expert report was a material fact of a decisive character, this material fact would have been available to the applicant earlier had she and her solicitors taken reasonable steps to ascertain the fact. The application to extend the limitation period was dismissed.
- Whether a favourable opinion on liability provided by a medical specialist was a material fact of a decisive character and whether it was within the applicant’s means of knowledge before the relevant date for the purposes of extending the limitation period under section 31 Limitation of Actions Act 1974 (Qld) (the LAA).
Jessie Magarey (the applicant) injured her right ankle whilst descending a ladder in 2013. The applicant was treated at the Nambour Hospital and had 3 ankle surgeries between 2015 and 2016. In 2017, the applicant developed a bone infection, resulting in 4 further surgeries and a below knee amputation in 2018.
The applicant was advised by solicitors she initially consulted in July 2017 that she had no prospect of success in making a claim regarding her treatment. She subsequently engaged CMC Lawyers in September 2017. The applicant’s limitation period expired in August 2018. Section 31 LAA allows a court to order that the limitation period be extended to 1 year from the date that the applicant became aware of a material fact of a decisive character that was not previously within the applicant’s means of knowledge.
CMC Lawyers obtained a medical opinion from Professor Higgs on 27 August 2020. The applicant contended that she did not appreciate her potential claim and did not become aware of the nexus between the treatment and subsequent infection until she received a draft Part 1 Notice of Claim pursuant to the Personal Injuries Proceedings Act 2002 (PIPA) from her solicitors on 30 September 2020 outlining Professor Higgs’ opinion.
The applicant contended that Professor Higgs’ opinion was a material fact of a decisive character that was not within her means of knowledge until 30 September 2020, and applied to the Supreme Court of Queensland to extend the limitation period until 30 September 2021. The Sunshine Coast Hospital and Health Service (Nambour Hospital) contended that the material fact would have been available within the limitation period or before 30 September 2020 had the applicant and her solicitors taken reasonable steps to ascertain the fact.
The court was required to consider whether Professor Higgs’ opinion was a material fact of a decisive character and whether the material fact was not within the applicant’s means of knowledge until 30 September 2020.
The decision at trial
Material fact of a decisive character
The relevant material fact was Professor Higgs’ opinion that there was a nexus between the original joint fusion surgeries and the subsequent infection requiring amputation. The court accepted that the applicant did not appreciate that she had a basis for a claim until the effect of Professor Higgs’ report was conveyed to her.
The court stated that a medical report providing an opinion as to whether an alleged negligent act is causally linked to loss or damage would constitute a material fact of a decisive nature. Despite Professor Higgs’ opinion being based on historical medical records that were previously available to the applicant, the court held that it was Professor Higgs’ opinion which ultimately identified that the original surgery was unwarranted, that a screw had been negligently placed, and that alternative treatment should have been pursued.1] Without this evidence, a reasonable person in the applicant’s position given appropriate advice on those facts without a medical opinion would not have regarded them as showing that she had reasonable prospects of success. The court found that Professor Higgs’ report could be regarded as a material fact of a decisive character.2
Means of knowledge
In order to grant relief, the court had to be satisfied that the material fact (being Professor Higgs’ opinion) was not within the applicant’s means of knowledge until after 30 September 2020. The question for the court was whether the applicant should reasonably have taken steps at an earlier time to find out the material fact.
The court stated that, although engaging solicitors to provide advice as to a potential claim is generally a reasonable step, that does not necessarily amount to the taking of reasonable steps over time if the applicant does not do their best to ensure that the solicitors did not languish in prosecuting the action.3 In circumstances where CMC Lawyers clearly failed to take reasonable steps to ascertain the material fact, the question was whether that failure extended to the applicant.
The court considered that the failure to take reasonable steps to find out the material fact did extend to the applicant in circumstances where:
- The applicant’s solicitors languished in the prosecution of the action, and the conduct of the matter was affected by periods of significant delays and periods of inactivity.4
- There was no real evidence, other than general assertions of maintaining contact, that the applicant took any steps or regularly followed up to ensure that the prosecution of the claim by her solicitors did not languish.5
- Despite the absence of formal advice regarding limitation periods, the applicant ought generally to have been aware that there were some time constraints with respect to commencing proceedings. The applicant had instructed that section 9A PIPA notices be issued by both sets of solicitors and had sworn a statutory declaration when she had to explain the delay in issuing the initial notice.
- The claimant knew that a medical opinion was needed to establish whether she had a claim.6 She was not financially able to fund such a report and she engaged CMC Lawyers in September 2017 (9 months before the first limitation’s expiry) because they were prepared to meet the report costs. It took a further 3 years for CMC lawyers to obtain this report, yet the applicant failed to follow up and determine the progress of her matter and the source of delays.
The court held that in all of the circumstances, given the lack of evidence to show that the applicant followed up with CMC Lawyers as to the extraordinary delays in obtaining a report, the applicant failed to discharge the onus that the material fact was not within her means of knowledge. The court noted that this was a ‘very unfortunate result’ given the failures of the applicant’s solicitors. However, the court considered that the fact that the applicant may have a possible claim against her solicitors was not relevant for determining the section 31 LAA application.7
Implications for you
A favourable opinion on liability provided by a medical specialist after the expiration of a limitation period can be considered a material fact of a decisive character which may form the basis of extending a limitation period under section 31 LAA.
In responding to applications to extend a limitation period, it should be noted that applicants are required to be aware that they need to take reasonable steps to ascertain all material facts expeditiously in order to protect their cause of action. Engaging solicitors to provide initial advice, without following up in the event of delays, may not be a sufficiently reasonable step to protect the cause of action.
Courts may not protect a vulnerable claimant who has received no formal advice as to limitation periods and may still decline to extend the limitation period. In these circumstances, solicitors may be exposed to claims for professional negligence for the claimant’s lost action as was foreshadowed by the court in this matter.
1 Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)  QSC 240 .
2 Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)  QSC 240 .
3 Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)  QSC 240 .
4 Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)  QSC 240 .
5 Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)  QSC 240 .
6 Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)  QSC 240 .
7 Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)  QSC 240