Owen v Rogers

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20086/04 JENNIFER MARIE OWEN v DR CHRISTOPHER ROGERS

JUDGMENT 1 HIS HONOUR: The plaintiff, Jennifer Marie Owen, has commenced proceedings against the defendant, Dr Christopher Rogers, claiming damages for negligence and for breach of contract. The proceedings commenced in the District Court where a statement of claim was filed on 8 October 2002, but the proceedings were later transferred to this court. The decision I am about to express concerns the plaintiff's notice of motion filed on 6 July 2004 whereunder the plaintiff seeks an extension of time under the Limitation Act 1969. Certain other relief claimed in that same notice of motion has not been pursued. 2 The plaintiff is a thirty-three year old veterinary nurse who consulted the defendant about LASIK surgery in April 1997. On 11 June 1997 LASIK surgery was performed on both of the plaintiff's eyes and, although immediately after the surgery the plaintiff was pleased with the result, her case is that the surgery on the left eye proved ultimately to be unsuccessful. Indeed, the plaintiff developed bilateral corneal keratoectasia, but the problem which developed in the left eye ultimately required that the plaintiff undergo a left corneal transplant. 3 According to the plaintiff, she consulted the defendant following surgery on a number of occasions. The first post operative consultation was on 12 June 1997, at which time the plaintiff was pleased with the result. On 16 July 1997, and on subsequent consultations, the plaintiff's vision was tested and the plaintiff noted on 16 July 1997 that her sight was better in the right eye than the left. According to the plaintiff, Dr Rogers reassured her at this time, indicated all was well, and that the position should be better in a couple of months. The plaintiff saw Dr Rogers again on 16 September and complained again that the left eye was not as good as the right. Again the plaintiff alleges the defendant reassured her and invited her to come back in six months time. According to the plaintiff, early in 1998 she noticed difficulty in seeing the detail of a sign across the street from her workplace, and she also noticed that she had trouble reading writing on documents, although vision in the right eye "was not too bad". 4 The plaintiff said that she returned to Dr Rogers on 12 May 1998 and the plaintiff says that she complained that her sight in the left eye was not very good and that she was having trouble reading. Once again the plaintiff asserts that the defendant reassured her and invited her to come back to see him. 5 The plaintiff did not visit Dr Rogers again until July 2001. On 5 July 2001 the plaintiff says that she complained to Dr Rogers that her sight was a lot worse than before the surgery, and he advised her that he would refer the plaintiff to an optometrist for hard contact lenses. The plaintiff says that she asked Dr Rogers: "What about performing the procedure again?", and the doctor replied: "No, I'm not happy with the technology available at this stage." 6 The plaintiff has asserted that it was her belief until the date of that consultation that her post operative problems would either improve with time or could be repaired by Dr Rogers repeating the surgical procedure. This was because, the plaintiff contends, at the time of her initial consultation with the defendant he told her that if a good result was not obtained the first time he would perform the procedure again. 7 The plaintiff says that Dr Rogers did tell her in July 2001 that her cornea was uneven and that what was required was surgery to have the cornea made even. However, he told her that at that time the technology for doing that surgery was not available. The plaintiff said she was given no information as to why her cornea was uneven. 8 So it was that the plaintiff contends that after 5 July 2001 it was her understanding that she had a corneal condition which could not be corrected without future technological advance. 9 The evidence of the plaintiff is that it was some time early in 2002 that she heard an advertisement for Savage Lawyers in relation to medical negligence claims and she consulted Mr Savage of that firm on 9 April 2002. The plaintiff was referred to Dr Richard Smith, who she consulted on 1 October 2002. Dr Smith informed her: "You should not have had LASIK surgery. You were not suitable for LASIK surgery. Your corneas were thin and irregular. You will need a corneal transplant in the future to improve your vision in the left eye." 10 The plaintiff contends that this was the first time anyone had informed her that she should not have undergone LASIK surgery and that the shape and thickness of the corneas made her unsuited for LASIK surgery. 11 It is to be observed that the proceedings began in the District Court within one week of the consultation with Dr Smith, and it is in these circumstances that the plaintiff makes application for an extension of the limitation period up to the date upon which the statement of claim was filed on 8 October 2002. 12 The application has been opposed. 13 The plaintiff moved upon her affidavits sworn 29 July 2004 and 28 August 2004, and I have drawn on the content of those affidavits for the outline of the plaintiff's case recorded above. The plaintiff also relied upon an affidavit of her instructing solicitor sworn on 1 July 2004, to which inter alia were annexed a number of reports from Dr Smith and a number of reports from the defendant. 14 In opposing the motion, the defendant relied upon a number of affidavits sworn by Ms Tully, his solicitor. Those affidavits bear dates 16 January, 2004, 27 August 2004, 1 September 2004, 15 September 2004 and 10 November 2004. There was a further affidavit of Ms Tully sworn 25 June 2004 which the plaintiff read. No affidavit was introduced into evidence sworn by the defendant. 15 Amongst the annexures to the affidavit of Mr Savage there are, as previously noted, a number of reports from Dr Richard Smith. This specialist appears to give support to the plaintiff's case that her corneal irregularity was a contraindication to her suitability for LASIK surgery. There is also support for her cause in the report of Dr Cohn: Exhibit B. It is not desirable to review the extent of the medical evidence supporting the plaintiff's case, but it seems to me there is prima facie evidence of negligence available to the plaintiff. Whether this issue is ultimately determined in her favour is not a matter to be assessed on this application. 16 Dr Smith reported on the plaintiff's condition in his report of 15 October 2003: "Her unaided visual acuity at this visit was 6/36 right and less than 6/60 left. With glasses it could be improved to 6/9-2 [presumably 6/9 to 6/12] in the right eye and remained at less than 6/60 in the left eye. She reported difficulty judging distances and this affects driving and many home recreational and working activities. She reports that she tends to bump into objects on her left side. She now does not feel able to drive at night and has been put on the waiting list for the NSW Eye Bank for corneal graft surgery. We repeated orbscan assessment of both eyes on the 18th September, 2003. Appearances have not changed significantly from our previous examination of 1st October, 2002. She does show bilateral kerectasia, worse in the left eye. This is the reason for her poor vision. In spite of the insignificant difference in these test results, it is not unlikely that the quality of her vision is slowly worsening due to slight progression in her kerectasia. In my opinion left corneal graft surgery is indicated and there is no other way of restoring reasonable vision to her left eye. The outcome of corneal graft surgery is by no means certain, however, there is a probability of around 95% that visual improvement to at least a moderate level can be achieved. A moderate level of vision would be 6/9 to 6/12 with correcting spectacles. The reduced vision in her right eye is probably not amenable to improvement at the present time by corneal graft surgery. A corneal graft could not guarantee better vision than she is currently achieving in her right eye, even though that right vision is far from perfect." 17 The plaintiff gave evidence that she underwent a corneal transplant for the left eye several months ago, but the procedure did not improve her vision. 18 The extent of the plaintiff's visual disability is, of course, one of the matters to be considered on this application. The plaintiff's disability is anything but trivial. 19 The plaintiff was extensively cross examined by Mr Downing on this application, and I was asked in many respects to regard the evidence of the plaintiff as unsatisfactory. However, the plaintiff's evidence has not been contradicted by any evidence from the defendant and, having reflected upon the matter, it seems to me I should for present purposes accept the evidence given by the plaintiff. 20 In coming to that conclusion, I do not overlook the content of the reports which the defendant sent to the plaintiff's general practitioner from time to time. The reports to which I am about to refer are annexures to the affidavit of Mr Savage:

(i) On 16 July 1997 the defendant reported favourably on the plaintiff's condition shortly after surgery, indicating he was hopeful that the slight blurring of the left eye would settle with time;

(ii) On 14 May 1998 the defendant wrote to Dr Chen that the plaintiff was complaining that "over the past few months" she was experiencing sight difficulty with the left eye. He noted that she was developing "slight ectasia of the left cornea with some consequent irregular astigmatism". Dr Rogers recorded that he had not seen this before after LASIK "but there is certainly reason for concern". However, he also wrote that he could think of no active treatment that would improve her vision at that time. Vision was then reduced to 6/18;

(iii) On 5 July 2001 Dr Rogers wrote that by then uncorrected vision in the left eye was 6/60. He referred to arrangements then in hand for the plaintiff to be fitted with a contact lens in the left eye and recorded that he would "be reviewing [the plaintiff] in a year's time, but earlier if she was continuing vision difficulties." 21 The above reports do not influence me to disbelieve the account that the plaintiff has given on this application. 22 I turn now to consider the relevant requirements of the Limitation Act. It is common ground that the application attracts consideration of s 60C and s 60E of the Limitation Act. It is common ground that in the circumstances of this case the Court is empowered to extend the limitation period for the period sought, up to 8 October 2002, having regard to s 60C(2), provided the Court is satisfied "that it is just and reasonable to do so". 23 Section 60E requires that the Court have regard to all the circumstances of the case and in particular to those matters which I will now address seriatim.

(a) The length of and reasons for the delay 24 Mr Downing submitted that the plaintiff has failed to provide a satisfactory explanation for the time that elapsed between the date of the surgery performed by Dr Rogers and the date that she consulted her solicitors and then went on to see Dr Smith. Although the plaintiff claimed, and I accept for present purposes, that she was given certain advice by Dr Rogers following the surgical procedure and, indeed, before it, her experience was not that the condition of the eye improved in time but that it steadily worsened, and, indeed, the deterioration was more rapid from mid 2000. In these circumstances, Mr Downing submitted the plaintiff should have acted much sooner than she did. 25 I am not attracted by that submission. It seems to me, accepting as I do the plaintiff's evidence, that the plaintiff had reason to believe that her vision would either improve with time or that it could be surgically corrected. It is understandable that the plaintiff would have been slow to submit herself to repeat surgery whilst she continued to hope for improvement in the left eye. That surgical correction would be available was the plaintiff's understanding until the consultation with Dr Rogers on 5 July 2001. Absent any contrary evidence from Dr Rogers, I accept for the purposes of this application that the plaintiff believed what the defendant told her prior to the surgery in June 1997 that a further procedure would be available. 26 Moreover, I accept Mr Graham's submission that the plaintiff was unaware that the surgery undertaken in 1997 was contraindicated by the condition of her cornea until such time as Dr Smith gave her advice to that effect in October 2002. 27 It seems to me that the delay was understandable in the circumstances.

(b) The extent to which having regard to the delay there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available 28 I remind myself in addressing the issue of prejudice of what McHugh J said on the subject in Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541 at 551: "Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532., 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose." 29 There is one specific matter of prejudice which the defendant has raised. This concerns the unavailability of an instruction booklet referable to the laser machine used to perform the surgery on the plaintiff. Exhibit 1 records agreement between the parties on a number of matters including the following: "1. That to the best of the defendant's knowledge, the laser machine used upon the plaintiff on 11 June 1997 was brought in mid 1995. Further, to the best of the defendant's knowledge, that laser machine was an SVS Apex Plus Model A, made by Summit Technology Incorporated. Further, the defendant could not recall specifically receiving an instruction booklet with the laser machine, though he assumes that he would have received one. Additionally, the defendant could not recall the contents of any instruction booklet received. Finally, the defendant did not receive any update booklets in relation to that machine at any later time. 2. During the period June to August 1997, the defendant bought and installed an SVS Apex Plus Model B machine. The defendant believes that he did not receive and install the machine until July 1997 or August 1997, after he moved into new rooms at Chatswood. To the best of the defendant's recollection, he received an instruction booklet in relation to that machine, though he no longer has a copy of any such booklet. 3. That in mid 1998, the defendant sold the SVS Apex Plus Model A machine. 4. That in or about March 1999, the defendant bought an Apex Plus Model UV 290,000 laser machine. 5. That in or about January 2000, the defendant bought a Ladarvision machine. 6. That the defendant could not specifically say when he disposed of the original booklet that he received when he purchased the SVS Apex Plus Model A laser machine in March 1995. 7. That the defendant had exhausted his enquiries in terms of looking for records of the purchase of the SVS Apex Plus Model A laser machine and any instruction booklet that came with it. He could not find those documents." 30 It is submitted that the prejudice which the defendant suffers from in not having available the booklet referable to the particular machine used in the surgery is evident, particularly when one has regard to the particulars of negligence proposed in para 10C(k) and (n) of the amended statement of claim placed before the Court: "(k) Failing to obtain and/or heed the information provided by the manufacturer of the laser machine used to perform LASIK surgery to the effect that patients, such as the Plaintiff, who had corneal irregularities, were not suitable for such surgery (n) Advising the Plaintiff to undergo LASIK surgery when he knew or ought to have know, from at least the information provided by the manufacturer of the machine to be used to perform the LASIK surgery, that a patient, such as the Plaintiff, who had irregular corneas, were unsuitable for such surgery." 31 The relevant booklet would provide a source for establishing the information which the manufacturer of the machine provided and hence its content would be relevant in considering the particulars (k) and (n). 32 It would indeed be surprising if the booklet for the machine used cannot be found before this matter proceeds to trial. Inquiries to locate one have been undertaken by the plaintiff's solicitors, as the content of Exhibit F reveals. If there is no book found, then the matter would have to proceed to trial without it, and unless and until a booklet is made available I would be disinclined to allow the plaintiff to proceed on a statement of claim that included particulars (k) and (n), as they are presently expressed. The plaintiff should not be allowed to amend to rely upon a booklet until such time as it is available to the parties. However, it seems to me that the suitability of the plaintiff for the surgery that was undertaken is not to be determined by reference to some manufacturer's booklet but rather by reference to appropriate medical practice and appropriate medical expertise, and I see no reason to conclude that the defendant, whose experience and appointments are described in a brochure, a copy of which is annexed to the plaintiff's affidavit of 28 August 2004, would not be well placed in preparing to defend allegations concerning the plaintiff's suitability for LASIK surgery. 33 That brochure informs the reader: "Dr Christopher Rogers is Chairman of the Department of Ophthalmology at Royal North Shore Hospital and a Consultant Ophthalmologist at the Mater Misericordiae Hospital. He is the Australian Chairman of the Summit Excimer Laser User Group. He is a past Chairman of both the Contact Lens Committee of the Royal Australian College of Ophthalmologists and the Corneal Transplanting Surgeons Committee. He is also Consultant in Ophthalmology to the Federal Department of Transport. Dr Rogers is a member of the Qualifications and Education Committee of the Royal Australian College of Ophthalmologists and has lectured in many countries on all aspects of excimer laser surgery and has contributed numerous scientific articles on the subject." 34 The onus is on the plaintiff to prove that there would not be such prejudice in the event that this application succeeds as would make the chances of an acceptably fair trial unlikely: see Brisbane South (supra) per Dawson J at 544 and per Toohey and Gummow JJ at 547; and South West Sydney Area Health Service v Gabriel & Anor [2001] NSWCA 477 per Hodgson JA at 32(2). The concept of a fair trial is not be equated with a perfect or ideal one: see McLean v Sydney Water Corporation [2001] NSWCA 122 at 27 and Fletcher v Besser [2004] NSWCA 132 at 30. 35 No other matter of actual prejudice has been raised, and, having considered the issue of prejudice generally, my assessment on the available evidence is that the plaintiff has discharged the onus that she carries on the issue of prejudice, assuming a copy of the relevant manufacturer's booklet cannot be found.

(c) The time at which the injury became known to the plaintiff 36 Mr Downing submitted that the plaintiff became aware of the harm that had been suffered as early as the end of 1997 when there had been no benefit from the surgery but only visual impairment. I do not accept that submission having regard to the evidence which the plaintiff gave as to what occurred on her consultations with Dr Rogers after that time. It was not until July 2001 that Dr Rogers informed the plaintiff her cornea was uneven, and that technology could not afford her with the opportunity for remedial surgery. It was not until October 2002 when the plaintiff saw Dr Richard Smith that she was given the further information from that source which I have earlier identified.

(d) The time at which the nature and extent of the injury became known to the plaintiff 37 Mr Downing submitted that in addressing this matter, it is not necessary that the plaintiff's knowledge extended to an awareness of her final outcome or that the plaintiff had to be aware of the precise condition from which she was suffering. Reference was made to F.J. Walker Limited v Webber (unreported, NSWCA, 16 November 1989) and in particular the judgment of Meagher JA at p 3 where his Honour said: "In general, not only need the applicant not know his final state, he need not know from what condition he is suffering. If he know 'the various signs and symptoms' of his condition, and a reasonable man in his position would know of this potential, that is sufficient. See Brunton v D O'Bryan and Co Pty Limited (Court of Appeal, unreported, 4 August 1988 per McHugh JA, Dousi v Colgate Palmolive Pty Limited (No 2) (Court of Appeal, unreported, 12 May 1989) and Moriarty v Sunbeam Corporation Limited (1988) Australian Torts Reports 80-170." 38 Mr Downing submitted in the circumstances of this case the plaintiff was aware by 1998 of the nature and extent of her harm. 39 It seems to me that that submission does not sit comfortably with the evidence I have earlier reviewed accepting as I do for the purposes of this application the evidence given by the plaintiff. 40 It was not until July 2001 that the plaintiff became aware of the fact that she had an uneven cornea and that in Dr Rogers' view this could not be rectified. The plaintiff was unaware at that time that the condition was a progressive one and that the condition could only be arrested by corneal transplant. The opportunity for that procedure first became known to the plaintiff when she saw Dr Smith in October 2002. It was from Dr Smith the plaintiff learned she suffered from keratoectasia and what this meant. Mr Graham submitted that the plaintiff could not be expected to be aware of the nature and extent of her injuries until she first consulted Dr Smith, and this is particularly so having regard to the advice earlier given by Dr Rogers. I accept this submission advanced by Mr Graham.

(e) The time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission 41 It is common ground that s 60E(1)(e) is concerned, like s 60I(1)(a)(iii), with ignorance of the existence of acts and omissions rather than legal conclusions: see Dedousis v Water Board (1993-94) 181 CLR 171. Dedousis also makes it clear that the relevant acts or omissions of a defendant are to be found in the particulars of negligence: see the joint judgment of Deane, Dawson, Toohey, Gaudron and McHugh JJ in Dedousis at 181-182. 42 In his written submissions Mr Graham referred to the dicta of Gleeson CJ in Drayton Coal Pty Limited v Drain (unreported, NSWCA, 22 August 1995). In that case his Honour said: "In the resolution of a problem of the kind that arose in Dedousis, and that arises in the present case, it may be necessary for a court to consider questions of degree. In the evaluation of a contention that a plaintiff was unaware of the connection between the plaintiff's injury and the defendant's act or omission, a court may well be confronted with a situation where, before and at the relevant time, the plaintiff was aware of some acts or omissions on the part of the defendant, and the connection between those acts or omissions and the plaintiff's injury, but not of other acts or omissions upon which reliance will be placed at a trial. The mere fact that a plaintiff's lawyers can think up some act or omission, upon which they will wish to place some reliance at a trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousis establishes that unawareness of a material act or omission which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s60I(1)(a)(iii)." 43 What are the material acts or omissions in the statement of claim upon which the plaintiff wishes to proceed? The particulars in the pleading include an allegation of a failure to warn, extending to an allegation of a failure to warn that adverse effects could not be addressed by subsequent surgery, a failure to properly assess the plaintiff's suitability for LASIK surgery, and negligence in the surgery itself involving ablating too much corneal tissue. I accept, as Mr Graham has submitted, that the plaintiff was not aware of the factual basis to support these particulars until October 2002.

(f) Any conduct of the defendant which induced the plaintiff to delay bringing the action 44 It was submitted by Mr Graham that the advice which the plaintiff was given by the defendant that if a good result was not achieved he would perform the procedure again was instrumental in the delay which occurred in commencing these proceedings. So, too, it was submitted were the assurances which the plaintiff said the defendant gave her in the consultations that followed the surgery. As the evidence stands, it seems to me that there is substance in this submission and I have regard to it. I accept that it was not until July 2001 that Dr Rogers alerted her to the uneven cornea and the absence of technology to address it surgically. 45 Mr Graham also relied upon the failure by the defendant to plead the Limitation Act when a defence was first filed at a time when the proceedings were still in the District Court. Mr Graham referred to the position that some fifteen months elapsed before the defence was pleaded, but as early as 11 December 2002 the defendant's solicitors pointed out that it was considered that the claim was statute barred. The plaintiff responded in correspondence through her solicitors that the defendant was precluded from pleading the limitation period by reason of the defendant's assurances to the plaintiff. Mr Graham has not sought to rely upon that response on the present application. It was pointed out in subsequent correspondence from the defendant's solicitors that the failure to plead the Limitation Act originally was through inadvertence. 46 One effect of the delay in pleading the Limitation Act was that costs were incurred in preparations for the hearing of this cause before the resolution of the issues raised on the present notice of motion. Nevertheless, having considered the content of Ms Tully's affidavit of 27 July 2004, I have concluded that the outcome of this application is not to be influenced by the defendant's delay in the amendment of his pleading.

(g) The steps taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received 47 There is no suggestion that there was delay by the plaintiff in obtaining appropriate advice once she first consulted her present solicitors, and I accept her evidence that they are the first solicitors consulted by her. Nor has there been any suggestion that there has been delay in obtaining medical treatment since she first consulted Dr Smith. Indeed, there has been the further recent surgery. 48 Mr Downing did not advance any matters to be considered against the plaintiff pursuant to s 60E(1)(g).

(h) The extent of the plaintiff's injury or loss 49 Again, no matter has been advanced by Mr Downing inviting attention to s 60E(1)(h). The evidence does establish that the plaintiff has been left with significant visual impairment as a result of the LASIK surgery and what followed. 50 This brings me back to the ultimate issue under s 60C of the Limitation Act. Having had regard to all the circumstances of the case and having addressed the considerations raised by s 60E, I have come to the conclusion that the plaintiff has established that it is just and reasonable to make the order for extension that is sought. 51 The application before the Court is twofold: not only does Mr Graham seek an extension of time but the pleading the Court is asked to address contains amendments that are sought to be allowed. There are additional heads of negligence pleaded and Mr Downing submitted that if, contrary to his primary submissions, I was minded to allow the extension of time sought, the plaintiff ought not to be permitted to rely upon the additional heads of negligence (h) to (n). Save for the particulars of negligence contained in para 10C (k) and (n), it seems to me to be just to allow the other amendments. However, I do not consider it appropriate to allow the amendments involving the introduction of reliance upon the information provided by the manufacturer of the laser machine unless and until there is available a copy of the relevant information booklet. If and when it becomes available, then the plaintiff may seek to amend the particulars in such a way as to indicate intended reliance upon what that booklet may contain. For the time being however, I refuse leave to amend para 10C to rely upon particular (k) and I refuse leave to the plaintiff to rely in particular (n) upon that particular in its present form. In my opinion, the words "from at least the information provided by the manufacturer of the machine to be used to perform the LASIK surgery" should be deleted and particular (n) must be amended accordingly.

Formal orders 52 1. I order that the plaintiff be granted an extension of the limitation period pursuant to s 60C of the Limitation Act 1969 up until the date of the filing of the ordinary statement of claim on 8 October 2002.

2. Leave granted to the plaintiff to amend the statement of claim in the form of the amended statement of claim last filed and initialled by me save for the deletion of para 10C(k) and the omission from para 10C(n) of the words "from at least the information provided by the manufacturer of the machine to be used to perform the LASIK surgery."

3. Further amended statement of claim pursuant to leave granted to be filed and served within seven days from today.

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