Ringelstein v Metro North Hospital and Health Service [2025] QSC 75

• [1] In June 2004 Cheryl Ringelstein was admitted to Caboolture Hospital and underwent a total abdominal hysterectomy and posterior repair performed by a surgeon. Since then, she has experienced a number of ill-effects and has undergone further operations to remedy what she says are the consequences of the negligence of the surgeon.
• [2] On 23 June 2023 Mrs Ringelstein commenced this proceeding claiming damages for negligence.
• [3] In this application Mrs Ringelstein seeks an order under s 31(2) of the Limitation of Actions Act 1974 (the Act) that the time for commencement of this proceeding be extended to 23 June 2023.
• [4] For the reasons which follow, the application is dismissed.

• [5] A chronology of events was included in the applicant's submissions and I do not understand it to be in dispute.

Applicant undergoes a total abdominal hysterectomy and posterior repair performed by the surgeon at the Caboolture Hospital.

Applicant transferred from Kilcoy Hospital back to Caboolture Hospital with what was discovered to be faeces in her vagina. Applicant diagnosed with rectovaginal fistula.

Applicant transferred from the Caboolture Hospital to the RBWH for further consultation regarding her rectovaginal fistula.

Applicant undergoes EVA rigid sigmoidoscopy and sigmoid loop colostomy.

Applicant undergoes laparotomy refashion colostomy and debridement of stoma site.

Applicant undergoes psychiatric review at RBWH. Applicant states she found it "hard to cope being in hospital, badly misses her family, feels lonely."

Applicant continues to experience complications requiring further surgeries and attendance at numerous outpatient clinics. Applicant suffers from significant urinary incontinence and persistent issues with her stoma.

Applicant approaches Clewett Lawyers, who agree to investigate a claim but require that she pay $2,200.00 for an expert's report. Applicant says she did not have the money to pay for the report.

Applicant approaches Clewett Lawyers asking for another copy of the letter and costs agreement to be sent to her.

Clewett Lawyers write to her and request that the sum of $2,200.00 be paid within four weeks to enable a report on liability to be obtained otherwise they would be unable to represent her. Applicant did not have the money to pay for the report.

Correspondence from Slater & Gordon advising that they are unable to assist her.

A friend of the applicant tells her that she had seen a television program about the surgeons and operations that have been performed at the Caboolture Hospital dating back to her initial surgery. Applicant subsequently contacts Michele Gardner (Executive Director, Clinical Governance, Safety, Quality and Risk of Metro North) and arranges a face-to-face meeting at Caboolture Hospital.

Applicant meets with Michele Gardner and Dr Peter Ganter, Clinical Director of Obstetrics and Gynaecology of the respondent. Applicant says that he advised her that it was "terrible what had happened to me and it should not have happened". Applicant was offered a goodwill payment of $10,000.00.

Correspondence from the respondent advising that the care provided to the applicant was "care below the expected standard".

Consent order pursuant to section 43 of the Personal Injuries Proceedings Act 2002 to permit the applicant to start proceedings without having completed the pre-Court procedures.

Applicant commences proceedings in the Supreme Court.

Further report of Dr Geoffrey Reid, Gynaecological Surgeon

The legislative requirements for an extension of time

• [6] Section 31 of the Act provides:

(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the applicant for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3) This section applies to an action whether or not the period of limitation for the action has expired -

(a) before the commencement of this Act; or

(b) before an application is made under this section in respect of the right of action."

• [7] The construction of s 31 is informed by the provisions of s 30:

(1) For the purposes of this section and sections 31, 32, 33 and 34 -

(a) the material facts relating to a right of action include the following -

(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii) the identity of the person against whom the right of action lies;

(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused;

(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -

(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;

(c) a fact is not within the means of knowledge of a person at a particular time if, but only if -

(i) the person does not know the fact at that time; and

(ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts."

What must a plaintiff show, in order to succeed?

• [8] In order to succeed in an application to extend the limitation period, a plaintiff must show:

(a) First, that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the plaintiff until a date after the commencement of the year last preceding the expiration of the period of limitation for the action[1];

(b) Secondly, that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation[2];

(c) Thirdly, that the fact in question was not within the means of knowledge of the plaintiff in that the person did not know the fact at the time and, as far as the fact was able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time[3];

(d) Fourthly, that the defendant is not prejudiced such that a fair trial of the action can be conducted[4].

Is there a material fact of a decisive character?

• [9] In her written submissions, Mrs Ringelstein relied on two matters:

(a) first, an "admission" on 27 June 2022 by two employees of Metro North who were in managerial positions, and

(b) secondly, the receipt by her of the report of Dr Reid on 23 October 2023.

Is it necessary to consider whether there was an admission of liability by Metro North?

• [10] Mrs Ringelstein deposes to having had discussions with a friend about a "whistle blower" who had spoken about the incidence of complications from surgeries conducted at Caboolture Hospital. As a result, Mrs Ringelstein contacted Michele Gardner (Executive Director, Clinical Governance Safety, Quality and Risk at Metro North). Mrs Ringelstein was invited to a meeting at Metro North with Ms Gardner and Dr Peter Ganter, the Clinical Director Obstetrics and Gynaecology.
• [11] On 27 June 2022, Mrs Ringelstein attended that meeting. Her evidence of what occurred was:

"I went to this meeting with my husband Philip Ringelstein. In the meeting, I went through what had happened to me since 2004 and broke down in tears when discussing what I had been through. Dr Peter Ganter told me that he had reviewed my file and that it was terrible what had happened to me and it should not have happened. Also, in this meeting Michele Gardner offered me a goodwill payment of $10,000."

• [12] If Dr Ganter said what Mrs Ringelstein claims he said, then a number of issues arise. One of them is whether the reported statement was inadmissible by virtue of s 72 and s 72B of the Civil Liability Act 2003.
• [13] The determination of whether there was an admissible "admission of liability" was rendered unnecessary by a concession made by Metro North that Dr Reid's reports constituted a material fact of a decisive character. As those reports came into existence after the proceedings were commenced, the earlier conversation with Dr Ganter and Ms Gardner need not be considered.
• [14] On that concession, the issues to be determined include whether Mrs Ringelstein had taken the necessary steps to ascertain that material fact and whether it should have been within her means of knowledge at an earlier point in time.

• [15] Dr Reid did not examine Mrs Ringelstein. His reports were based upon an examination of the medical records of the Caboolture, Kilcoy, and Royal Brisbane and Women's Hospitals, and the medical records review of Slater & Gordon Lawyers.
• [16] His opinion can be summarised as follows:

(a) There was evidence of a lack of due care in the conduct of the surgery.

(b) The lack of records in the Operation Report about whether electrosurgical devices were used to achieve haemostasis was below the required standard of care.

(c) The failure to perform a cystoscopy after the operation constituted a lack of due care.

(d) "Given her complicated postoperative course, with multiple unresolved issues, I find it extraordinary that she was transferred to a 21 bed regional hospital with limited services under the care of a General Practitioner on the 7th postoperative day. I certainly believe this constitutes a lack of due care."

(e) "On the balance of probability, the recto-vaginal fistula was caused by a failure to provide an appropriate standard of care ..."

(f) "On the balance of probability, the vesico-vaginal fistula was caused by a failure to provide an appropriate standard of care ..."

Did the applicant take the necessary steps to ascertain that material fact?

• [17] Section 30(1)(c) of the Act provides that a fact is not within the means of knowledge of a person at a particular time if, but only if, the person does not know the fact and the person has taken all reasonable steps to find out that fact before that time. The onus is on that person to establish both limbs of the test.
• [18] The test of reasonableness to be applied is an objective one relevant to a person in the position of the claimant with her background and understanding[5].
• [19] Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from that actual person in the circumstances of the applicant[6].
• [20] Those principles were applied in Magarey v Sunshine Coast Hospital and Health Service[7], a case which has some similarity to this and to which I will return.
• [21] Mrs Ringelstein's medical circumstances are touched upon in the schedule above. Her medical history since 2004 has been one of consistent and pervasive problems apparently created by the original surgery with a corresponding list of unsuccessful attempts to correct the original surgery.
• [22] Her personal circumstances are relevant. She finished her education at year 10 and had a succession of jobs which did not require particular qualifications. Mrs Ringelstein is married with four children (one of whom is the child of a previous marriage). She and her family have lived in Kilcoy since 1994. Their family home is still subject to a mortgage.
• [23] Mrs Ringelstein had never had any exposure to the legal system and had never needed to consult a solicitor until this matter arose.
• [24] Her memory of the actions she took are patchy and she relied upon a few documents to recall what she had done and what she had been told. She says that she lodged a complaint with the Caboolture Hospital in 2004 with respect to the standard of treatment she had received but, she says, it was "shutdown internally" and she was "unable to gain any resolution to the complaint that [she] had made."

"It may have been possible to extend the limitation period if you had engaged us to act for you at the time we first sent the Costs Agreement to you. Because you have taken so long to get the Cost Agreement back to us and that you are already out of time to bring a claim, you have lost precious time and it may now be too late to commence an action."

• [27] The letter went on to say: " ... as a result in [sic] the delay in receiving the authority from you, we will now need to act urgently if we are to attempt to protect your position". The firm were prepared to investigate her claim but required a payment of $2,200 to obtain an expert's report. Mrs Ringelstein did not have the funds to pay that amount and no work was undertaken.
• [28] She accepted the proposition put to her that the letter made it clear to her that if she intended to pursue her claim, she needed to act urgently to obtain a report from a doctor.
• [29] For reasons she cannot now recall, Mrs Ringelstein next approached Slater & Gordon Lawyers. She was told that that firm could not offer her a "no win, no fee" arrangement.
• [30] On 17 November 2010 Slater & Gordon sent Mrs Ringelstein a letter which contained the following advice:

(a) that legislation applies time limits on how long you can take to bring a claim so that your ability to bring a claim after a certain date is restricted,

(b) that under the Limitations of Actions Act 1974, court proceedings for a claim for damages arising from medical negligence must be commenced within three years of the cause of action arising,

(c) that if you have not issued court proceedings within these time limits, your right to claim damages may be barred but, in exceptional circumstances, a court may extend the time to issue proceedings.

• [31] The letter goes on and, under the heading "Application to Extend Time Limit Necessary", the following appears:

"In some instances the court will agree to extend the time limit however based on your instructions I do think that you would successful in obtaining such orders. If you did wish to pursue your claim, you would need to apply to extend the time within which proceedings may be issued. The cost of the application can be $8000 to $10,000."

• [32] The first sentence of that paragraph obviously has some words missing. Given the rest of the paragraph, the author probably intended to say that she did not think that Mrs Ringelstein would be successful on such an application. But it may be asking too much of a distressed person in Mrs Ringelstein's position to successfully construe that paragraph.
• [33] The author of the letter goes on to advise that if Mrs Ringelstein wished to approach another lawyer then she could seek assistance from the Queensland Law Society and the contact details were provided.
• [34] In cross-examination, Mrs Ringelstein agreed that she did not try to consult another lawyer. She was asked about that in re-examination and she said that she could not remember much about it, she just wanted to find out what had happened and that she couldn't understand what was going on with her. She gave evidence that there were periods when she did not want to know anything because "I felt like I even wasn't a human being anymore ... I felt very low ... very upset ... Still to this day, it still upsets me - with my family and my husband, I felt - I felt so unclean, like I wasn't a person. I couldn't do things. I just didn't feel like a human being anymore."
• [35] Mr Mullins KC submitted that it was reasonable for Mrs Ringelstein not to pursue a claim at the time she received the Slater & Gordon letter in the light of:

(a) the answers she had received previously,

(b) her personal and family circumstances,

(c) her limited education, and

(d) her financial situation.

• [36] In addition to those matters, she also says that she:

(a) was in significant pain, and

(b) suffered from depression brought on by her physical circumstances.

• [37] The question of whether reasonable steps were, or were not, taken in what can be described as medical negligence cases was considered in Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital). In that case the applicant had retained solicitors. The primary judge found that the solicitors had delayed for three years to obtain the necessary expert report and that, in those circumstances, the applicant was required "to press them to obtain the report they said they would obtain or to have sought other legal advice if they then did not take action in a timely way". The primary judge also accepted that the applicant could not fund an expert report herself and relied on the solicitors to deal with that. Notwithstanding that, the period of delay required the applicant to follow up the solicitors.
• [38] The Court of Appeal held that there are many factors that may be relevant to determining whether an applicant for an extension of the limitation period can satisfy the onus under s 30(1)(c)(ii) including:

(a) the stage of investigation of the proposed claim for personal injuries;

(b) the stage of any pre-proceeding steps;

(c) whether the proceeding has commenced;

(d) the steps taken in the proceeding;

(e) the nature and frequency of the contact between the applicant and the solicitors as to the progress of the claim or the proceeding; and

(f) the effect on the applicant of any advice given by the solicitors as to the requirements to advance, and about the progress of, the claim or the proceeding.

• [39] The position in which Mrs Ringelstein found herself had some similarities to those which existed in Magarey. That applicant also had a sad history of unsuccessful attempts to remedy her problems. But, in that case, it was held that, even allowing for the trauma of the amputation of her leg in August 2018, her subsequent recovery with the complication of her other health issues, and that she depended on her solicitors to pay for the expert report, the three year period between engaging those solicitors and obtaining the expert report was excessive in the circumstances in which she had retained the solicitors.
• [40] What, then, did Mrs Ringelstein do? She deposes to trying to lose weight, between 2007 and 2019, in order to undergo surgery to reverse her stoma and to her difficulties in doing so. She continued to struggle with her mental health and says that she was too traumatised to confront her situation and start counselling. Her care needs increased throughout this time.
• [41] She was sufficiently unhappy with her initial treatment to lodge a complaint with the hospital in 2004. Similarly, she was sufficiently concerned about her position to consult Clewett Lawyers in 2008. She was told then that the limitation period had expired and that it might have been too late to seek an extension of that time. She knew, in early 2009, that she needed to act urgently to obtain a medical report if she wanted to pursue an action. Her reason for not taking the matter further was that she could not afford to pay for a report.
• [42] In 2010 she approached Slater & Gordon. That firm could not provide her with a "no-win, no fee" arrangement but she was told in a letter of the limitation period and the fact that an application could be made to extend it. Again, she was unable to afford the fees required by the solicitors to pursue such an application. But she was also told that she could seek assistance from the Queensland Law Society to find other solicitors. She did not.
• [43] At that point, some six years after the surgery, Mrs Ringelstein knew that the limitation period had expired, that she could make an application to extend the time, and that she had to act quickly to obtain the necessary evidence. Yet, she did nothing until, at the earliest, June 2022, when she had a meeting with Metro North representatives. She then did not retain Slater & Gordon (under different arrangements) until March 2023. Thus, she did nothing to investigate her legal situation or seek any further assistance for at least 12 years.

• [45] The application is dismissed.
• [46] I will hear the parties on costs.

[4] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[5] Castlemaine Perkins v McPhee [1979] Qd R 469 at 472-473

[6] NF v State of Queensland [2005] QCA 110 at [29]

[7] (2022) 11 QR 882; [2022] QCA 189