We are often asked if there’s a cut-off time to lodge a claim for personal injury. In our previous blog post, we explained the legal limitations within a time frame of three years for these types of claims and the importance of taking action as soon as possible.
In this post, we will provide two real-life cases seen here in Australia and how they were judged under the law.
Jump to:
Case 1:
This case example was a claim for medical negligence.
Recently, Justice Brown was required to assess whether, or not, an extension to the limitation period should be granted. The basics of each case are:
Lang v McArthur & Ors [2019] QSC 119:
An alleged medical negligence action. The alleged negligence was against two doctors. Dr McArthur allegedly did an intramuscular injection of penicillin into the buttocks of Ms Lang, who was only three months of age in or about 1978. Dr Mcguire (An Orthopaedic Surgeon) did around 16 surgeries between 1978 and 1991. Ms Lang’s limitation period expired on her 21st birthday. Ms Lang was 42 years of age at the time of the application, with her limitation date having expired about 21 years previous.
Ms Lang alleged that the material facts of a decisive character were:
- On 19 October 2017, Ms Lang met with her general practitioner and saw a radiology report that said she had a deformity of her left leg, a fact which she says she had not previously known. Further, on that date, she was advised that she had extensive arthritis of both legs, feet and hips which may have certain consequences in the future because her condition was poor and deteriorating quickly including that she may potentially be wheelchair-bound in five to 10 years.
- She observed a ‘V’ shaped staple in her foot in radiology imaging which she had been unaware of; and
- Discovering the identity of the General Practitioner who was said to have given her injections in her left buttocks when she was a baby.
Judgement
In short, Judge Brown rejected the first assertion as Ms Lang had significant symptomology, functional issues and wastage in the left leg since she was at least 18 years of age. That is, it was known to Ms Lang that she had a deformity long before 19 October 2017. Judge Brown was not swayed that the injury was sufficiently trivial until on 19 October 2017 whereupon it became known to Ms Lang of the severity of her injury. That is, Ms Lang’s injury has always been significant. In relation to the identity of the General Practitioner Dr McArthur, Ms Lang’s mother did not say she did not know who the doctor was or that she had forgotten the name of Dr McArthur. She was simply reluctant to provide that information to Ms Lang until pressed.
Judge Brown also went on to assess whether there was a prima facie right of action. Ms Lang called a Dr Ulahannan to give evidence but only against Dr McArthur (the General Practitioner) and not against Dr McGuire (the Orthopaedic Surgeon). In essence, Dr Ulahannan gave evidence of the risks of giving an intramuscular injection in the buttocks of a child. He did not have any direct evidence that Dr McArthur had given the intramuscular injection incorrectly. Dr McArthur denied having given an intramuscular injection to Ms Lang at all based on his practice at the time.
The Court decided not to exercise their discretion to allow this matter to proceed for many reasons including Dr McArthur not being able to identify his professional indemnity insurer, having limited assets and having incurable prostate cancer. The records of Dr McGuire had been destroyed and there is a significant chance the respondents will not be able to defend themselves.
In the circumstances, Judge Brown chose not to allow leave to proceed.
Case 2:
This case example was a claim for medical negligence.
In Walker v Tucker [2019] QSC 141 Mr Walker consulted Dr Tucker on 11 October 2013 displaying symptoms of back pain and paraesthesia in both legs. Dr Tucker referred Mr Walker for a CT scan which showed appearances of a soft tissue oedema or a nerve sheath tumour in his thoracic spine. Dr Tucker wrote a referral to the Princess Alexander Hospital emergency department. It was a point of contention as to whether Dr Tucker told Mr Walker to go to the Princess Alexander Hospital emergency department.
Mr Walker was driven by his partner back to their home and subsequently by a friend to the emergency department at the Ipswich Hospital. He was subsequently taken by ambulance to the Princess Alexander Hospital emergency department, whereby an MRI was undertaken and surgery was done that evening. Mr Walker ended up a paraplegic.
Proceedings were commenced by Mr Walker which did not include Dr Tucker. This was based upon the evidence of Dr Lynch who did not believe Dr Tucker was negligent by not calling an ambulance.
Mr Walker was informed that Dr Lynch had changed his mind on 3 August 2017 (in a report dated 19 July 2017) and proceedings were filed against him on 18 July 2018. The three-year limitation for bringing an action against Dr Tucker had expired on 11 October 2016.
To support this application, Mr Walker obtained an opinion from a Professor Noel Dan who gave evidence that the paraplegia would likely have been avoided if the surgery had been performed earlier on the night of transfer.
Judgement
The Court found that the Dr Lynch report of 19 July 2017 was a material fact relating to a right of action. The Court found that, until that point, Mr Walker did not have evidence to support a right of action against Dr Tucker. In fact, the Court found that before 19 July 2017, Mr Walker understood Dr Tucker was not negligent based upon the earlier report of Dr Lynch. Judge Brown also found a prima facie cause of action existed based upon Dr Lynch, Dr Dan and other evidence.
As you can see within these two cases, it is critically important for a person to lodge a personal injury claim as soon as possible and not wait to make a decision. Speaking with a personal injury lawyer will help guide your decision and manage the process effectively and improve the likelihood of a positive outcome.If you are looking for advice about a personal injury claim, please contact us today to arrange your FREE initial consultation.
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