Wolverson v Todman; Wolverson v Lisle & Hooper & Ors [2015] QCA 74

1. The Applicant undertakes to make all reasonable and genuine attempts to procure the report within six months following this Application."[82]

[77] Ms Wolverson's application filed on 21 January 2014 in proceeding No 1552 of 2010[83] sought an enlargement until that day of the time allowed by consent order 2(a) for filing the application for an extension of the limitation period for proceedings against Dr Todman. This application also sought an order extending the limitation period and other orders. The enlargement of time was sought on the footing that it was necessary because Dr Earwaker's first report was received on 3 August 2012 yet the application for extension of the limitation period was not filed until some 18 months later, on 21 January 2014. Thus, it was thought, there had been non-compliance with consent order 2(a) and an enlargement of the time allowed under it was necessary.

[78] The learned primary judge was of the view that the independent specialist report relevant to a proceeding against Dr Todman was that of an independent specialist in Dr Todman's field of specialty, neurology.[84] I agree. The order necessarily comprehends an independent specialist's report as was capable of facilitating proof of negligence against Dr Todman should Ms Wolverson be able to procure one. I also agree with his Honour that since the application for extension of the limitation period was filed within six months of the receipt of the report of the independent neurology specialist, Dr Mellick, Ms Wolverson had complied with order 2(a) and therefore there was no need for enlargement of the time provided by it for making the application for extension.[85]

[79] His Honour also had before him the application filed by Dr Todman on 7 March 2014,[86] paragraph 1 of which sought the following order:

"That pursuant to rule 280 of the Uniform Civil Procedure Rules 1999, or alternatively pursuant to the inherent jurisdiction of this Honourable Court, the Claim be dismissed on the grounds of the failure to comply with paragraph 2(a) and/or 3 of the Order of Judge Clare SC dated 17 May 2010."

(This paragraph evidently meant to refer to the order dated 27 May 2010.)

[80] The learned primary judge did not make any order on this application. Quite probably he did not do so because the practical effect of his dismissal of the application for an extension of the limitation period was that the proceeding commenced against Dr Todman foundered. His Honour did, however, express the view that there had been a failure to comply with order 3 of the consent orders as would have enlivened the jurisdiction under r 280(1) of the UCPR to dismiss the proceeding.[87]

[81] Rule 280(1) provides:

(a) the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and

(b) the plaintiff or applicant does not do what is required within the time stated for doing the act;

a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution."

In its own terms, this rule is applicable only in circumstances where a party has failed to take a step required by the rules or to comply with an order of the court within a stated time. Order 3 was an undertaking given by Ms Wolverson to make all reasonable and genuine attempts to procure the independent specialist's report within six months following the application on which the consent orders were made. Order 3 did not require her to do anything within a stated time. In particular, it did not require her to obtain the report within six months of the application. The jurisdiction under r 280(1) was therefore not engaged.

[82] Rule 280(2) captures the inherent jurisdiction of the court to dismiss a proceeding for want of prosecution. Before this Court, it was not submitted, orally or in writing, that an order dismissing the proceeding against Dr Todman ought to have been made in the exercise of the inherent jurisdiction. I would observe that in light of the fact that on 24 June 2010 and within one month of the making of the consent orders, a representation was made to HQCC on behalf of Dr Todman that while that avenue was pursued, Ms Wolverson should hold the PIPA proceedings in abeyance,[88] and, having regard to the absence of significant prejudice noted later in these reasons, in my view, such a submission would not have succeeded.

[83] The learned primary judge made no finding on this issue. However, it is raised by the Notices of Contention. Given that the Radiology Appeal cannot succeed for failure by Ms Wolverson on the means of knowledge issue, it is unnecessary to consider the prejudice issue in the context of the application for extension of the limitation period for commencement of proceedings against the radiologist parties.

[84] In reliance upon the decision of the High Court in Brisbane South Regional Health Authority v Taylor,[89] it is submitted for Dr Todman that Ms Wolverson did not establish that an extension of the limitation period would not result in significant prejudice to him. The submission is elaborated in writing as follows:

"Dr Mellick made a number of observations about the absence of medical records in his report.

At page 8, he referred to the Appellant developing increasing symptoms following a cerebrospinal leak after a lumbar puncture in 1989. Dr Mellick said, 'Regrettably, the writer is not able to identify any additional clinical detail related to the symptoms which followed the lumbar puncture'. At that time the Appellant was consulting Dr Reimers, a neurologist.

At page 11, he reported that the first detailed neurological examination of the Appellant was documented following a visit to the Emergency Department on 10 June 1997, some nine years after the Appellant says her symptoms commenced.

At page 14, he noted the various reports he considered had a paucity of clinical detail regarding the specific findings, which were identified on physical examination. They include those by Dr Todman.

Without this material, the Respondents are prejudiced. The Appellant reported symptoms and the clinical assessments of the Appellant prior to the misdiagnosis, compared to her claimed residual symptoms following surgical intervention, which cannot now clearly be established, or proven by reference to documented contemporaneous records.

Further, the issue having been identified in the Appellant's own material, it was for the Appellant to prove that no prejudice would ensue. She did not attempt to do so.

Due to the passage of time from the alleged diagnosis, the Appellant's delay in progressing the claim, and the limited clinical notes, it is likely that relevant interactions and conversations between Dr Todman and the Appellant will no longer be within their memory. This gives rise to a general presumption of prejudice." (Footnotes omitted.)

(These submissions were also made on behalf of one of the radiologist respondents.)

[85] The report by Dr Mellick to which these submissions is referenced is very detailed. It reveals that Dr Mellick had available to him correspondence from 1992 and thereafter between Dr Todman and others, including radiologists, concerning Ms Wolverson's condition. His report indicates that the relevant MRI scans are available. He also had reports of other medical practitioners who had examined Ms Wolverson at stays in hospital. To use his own words, there are "a very large volume of notes" available concerning her condition.[90] There is no reason to doubt that any of these records and documents would be available for a trial.

[86] The observation by Dr Mellick at p 14 of his report relied on in the written submissions is not to be read as implying that a clear record of Dr Todman's physical findings was in fact made but that it no longer exists or is not available. No evidence was adduced for Dr Todman to the effect that records that he had made of his findings no longer exist or that he would be prejudiced in proceedings in any significant respect.

[87] In summary, there is no evidential basis from which the learned primary judge ought to have inferred that there was a significant prejudice to Dr Todman in extending the limitation period which Ms Wolverson had failed to disprove. In my view, it would not have been appropriate for him to have dismissed the application for extension on the ground of significant prejudice to Dr Todman.

[88] For these reasons, in the Neurology Application, leave to appeal should be granted and the appeal allowed with costs. In lieu of the order made by the learned primary judge, an order extending the limitation period should be made. Costs of the application for that order should be costs in the cause. Ms Wolverson's application filed in proceeding No 1552 of 2010 on 24 January 2014 should otherwise be dismissed. Dr Todman's application filed in that proceeding on 7 March 2014 should also be dismissed.

[89] As explained earlier in these reasons, the Radiology Appeal cannot succeed for failure by Ms Wolverson on the means of knowledge issue. Therefore, that appeal should be dismissed with costs.

3. The orders made on 17 April 2014 in proceeding No 1552 of 2010 in the District Court be set aside and in lieu thereof, there be orders that:

(a) The limitation period for the commencement of proceedings by the applicant Julia Kay Wolverson, against the respondent, Donald Henry Todman, be extended so that it expires at the time of closure of the Registry on 27 May 2010;

(b) The costs of the application for extension of the limitation period be costs in the cause;

(c) The application filed by the applicant on 21 January 2014 otherwise be dismissed;

(d) The application filed by the respondent on 7 March be dismissed.

4. The respondent pay the appellant's costs of the application for leave to appeal and of the appeal on the standard basis.

2. The appellant pay the respondents' costs of the application for extension of the limitation period filed in proceeding No 2770 of 2013 in the District Court on the standard basis.

3. The appellant pay the respondents' costs of the appeal on the standard basis.

[91] McMEEKIN J: I have read the reasons of Gotterson JA. I am indebted to his Honour for his thorough exposition of the relevant facts, law and issues. Save for one matter I respectfully agree with those reasons.

[92] The matter that concerns me is the finding that the material facts relied on in the case against the radiologists were within Ms Wolverson's means of knowledge prior to the critical date. The critical date was 31 July 2012, 12 months prior to the bringing of her proceedings on 31 July 2013.

[93] The material facts were that the radiologists had fallen below the standard required, and that failure had caused harm. Evidence supporting the first issue was obtained with the receipt of Dr Earwaker's report in early August 2012 and on the second issue with the receipt of Dr Earwaker's supplementary report in early November 2013.

[94] The radiologists' submissions depend on the validity of one of two premises.

[95] The first premise is that Ms Wolverson's actions should be assessed on the basis that having consulted a solicitor, the time within which she then had available to discover the "material facts of a decisive character" was limited to what might be a reasonable time for a competent solicitor to take.[91]

[96] Alternatively it must be assumed that despite receiving no advice that the time that was being taken was unreasonable and, indeed, receiving advice to the contrary she, acting reasonably, should have not have followed that advice but realised the necessity of first obtaining the expert opinion rather than delaying.

[97] In my opinion the first premise involves a mistaken view of the law. The second premise, to my mind, involves an unacceptable finding of fact on the crucial question: had Ms Wolverson "taken all reasonable steps to find out the fact" before the critical date? I respectfully disagree with my colleagues as to the answer.

[98] I turn first to the legal issue. The question of law concerns the proper construction of s 30(1)(c)(ii) of the Limitation of Actions Act. The misunderstanding of that construction underlies the radiologists' argument.

[99] The respondents' approach assumes that when an applicant consults a solicitor the applicant is to be penalised for the solicitor's defaults. That is not right. The legislation does not require the solicitor retained by an applicant to take all reasonable steps but rather that the applicant does so.

[100] The point was settled in Do Carmo v Ford Excavations Pty Ltd.[92] There Dawson J held in that it was an error to construe the NSW analogue of s 30(1)(c)(ii) of the Act as requiring an assumption that when advice was sought appropriate advice was received.[93] In that case the applicant consulted union solicitors who failed to advise him that there was a method of carrying out the work in question that would have safe guarded him from the injury suffered and that the method was one well known in the industry at the relevant time. Solicitors that he consulted later provided the necessary advice. According to Dawson J the worker was not to be penalised for the ignorance or incompetence of his original solicitors. Deane and Wilson JJ took the opposite view. Brennan J agreed with Dawson J. Murphy J's judgment, whilst not explicit, was consistent with Dawson J's reasons.

[101] This was the approach that Thomas JA took to the effect of Do Carmo in Dick v University of Queensland.[94] So far as I am aware the correctness of that analysis has not been challenged.

[102] Keane JA's analysis in NF v State of Queensland[95] is to the same effect as is evident in this passage[96] from his Honour's reasons:

"It is to be emphasized that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of "all reasonable steps", or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. 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 the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act. ..."

[103] Ms Treston cited certain passages from the judgment of Thomas JA in Dick v University of Queensland[97] as authority for the proposition she advanced and particularly the following:[98]

"In cases where a potential claimant lacks a material fact, and reasonably needs the help of a solicitor or someone else to obtain it, some further time may reasonably elapse before it should be held that such facts are within the claimant's means of knowledge. Such time will include the time which would reasonably elapse if the claimant, taking all reasonable steps to do so, consults solicitors or other persons, and those solicitors or those other persons undertake the necessary inquiries to ascertain the necessary additional facts to show whether or not there is a worthwhile cause of action."

[104] I do not accept that the passage is authority for the submission.

[105] When Thomas JA used the word "reasonably" in the phrase "some further time may reasonably elapse" he meant to judge reasonableness from the perspective of the applicant, not to apply the standard he would expect of a competent solicitor. That is clear given that his Honour had just concluded the analysis of Do Carmo that I have referred to. And his reference to the further time to be allowed for "those solicitors or those other persons [to] undertake the necessary inquiries to ascertain the necessary additional facts"[99] was in response to an argument that an applicant was "instantly be taken to have consulted with all necessary experts (including industrial safety experts and solicitors) and to be taken to know such information as those persons would have supplied to him"[100] upon the receipt of an expert report alerting him to the need to pursue further information. His was an observation suited to the facts of the case. It was not alleged that the solicitor had delayed for an inordinate period. His Honour was not endeavouring to lay down any principle guiding the approach to a case of a solicitor who, once properly instructed, does take an inordinate time to investigate. Nor was he dealing with a situation, as here, where the solicitor did delay for a lengthy period but had plausible reasons to delay.

[106] Before turning to the question of fact of assessing what could "reasonably be expected from the actual person in the circumstances of the applicant"[101], as Keane JA put the relevant question, I summarise the actions that Ms Wolverson did take or that were taken on her behalf between the discovery of the Chiari Type 1 malformation in April 2009 and the critical date. In that period Ms Wolverson:

• took time to recover from the surgery and found eventually that some of her significant symptoms had sufficiently improved that she felt well enough to consult solicitors;

• engaged solicitors (May 2010) who immediately sought legal aid to obtain an expert radiologist's report;

• lodged a written complaint with HQCC regarding Dr Todman (21 May 2010);

• instructed her solicitors to obtain necessary information to brief the expert radiologist;

• provided original MRI scans to HQCC at their request on their undertaking to return them "as soon as possible" (26 July 2010);

• received advice from HQCC that it had resolved to conciliate the complaint made against Dr Todman (February 2011);

• determined to hold the litigation process in abeyance until the conciliation process was completed and so instructed her solicitors (May 2011);

• received advice from HQCC that the conciliation process was discontinued and would not be reopened (October 2011);

• received through her solicitors the return of the crucial original MRI scans from HQCC (31 May 2012);

• again through her solicitors, briefed the expert radiologist Dr Earwaker (4 July 2012);

• obtained the expert report (dated 23 July 2012 but date stamped received by the solicitors on 3 August 2012);

• was advised by her solicitors that she had reasonable prospects of success against the radiologists (6 August 2012);

• filed her Claim and Statement of Claim against the radiologists (31 July 2013);

• sought, again through her solicitors, a clarification of the expert's report (1 November 2013); and

• received a response from the expert providing the critical information on causation of harm (a week later).

[107] There are two periods of significant delay. The first period is the two year delay from the obtaining of legal aid in June 2010 to fund the obtaining of the expert report and the request for the report in July 2012. The second is the 14 month delay from the obtaining of the report in August 2012 and the seeking of the supplementary report in November 2013, bearing in mind that proceedings were filed in July 2013.

[108] The first period of delay came about largely because of Ms Wolverson's decision not to pursue the legal action against the radiologists while her complaint about Dr Todman was before the HQCC. Was that an unreasonable course to take?

[109] In my opinion three matters tilt the scales in favour of Ms Wolverson's decision to leave the proceedings in abeyance.

[110] The first is that a satisfactory resolution of her complaint against Dr Todman would mean that Ms Wolverson had no reason to pursue the radiologists. It needs to be borne in mind that if it was reasonable to pursue an expert report it presumably follows that it was also reasonable to pursue the proceedings generally, assuming a favourable opinion was obtained. That would involve both expense - there is no necessary reason to expect that legal aid would fund the action generally[102], and in any case that fund should not be wasted - as well as the significant stress involved in any litigation.

[111] In judging Ms Wolverson's capacity to act and what might reasonably be expected of her it cannot be overlooked Ms Wolverson had over the years suffered from very significant symptoms. The symptoms over the period from 1988 have been described as including: severe migraines, reduced vision, loss of balance, facial neuralgia, slurred speech, short term memory loss, vertigo, nystagmus, vomiting, blacking out and collapsing, intermittent fevers, loss of vision or visual disturbance, ataxia, dysdiadochokinesis, intermittent pain in the left iliac fossa, "heaviness in her feet and occasional jerk", mobility problems including (L) leg weakness - to the extent of needing a wheelchair, incontinence, dysphagia with solids, worsening gait and falls, persistent bilateral leg and back pain, and generalised weakness.[103] I can well understand that a person who had been subjected to symptoms of that seriousness and degree over such a long period would not willingly incur unnecessary stress.

[112] On Ms Wolverson's report the symptoms have varied over time albeit that the surgery undertaken in June 2009 has relieved to some degree many of the symptoms. The continuing symptoms post-surgery included headaches, dizziness and visual disturbance.[104] Her continuing symptoms, post-surgery, were not insignificant.

[113] Nor should it be overlooked that the HQCC process involved that body in carrying out investigations.[105] There was thus the prospect that the HQCC might do the work, or some of the work, required to establish negligence. There was a potential advantage to Ms Wolverson in that.

[114] These advantages, and potential advantages, to Ms Wolverson in delaying are not irrelevant.

[115] The second factor is that it was to the advantage of the radiologists that Ms Wolverson pause and attempt to conciliate. I mention this, as a decision to delay that caused obvious detriment to the radiologists would be harder to justify, even for a lay person. I have no doubt whatever that if the radiologists had been asked in July 2010 whether they would prefer proceedings to be pursued vigorously against them or whether Ms Wolverson should see what she might gain from a conciliation attempt with Dr Todman - with the possible resolution of her complaints entirely - what their response would be. No medical practitioner likes to be sued for professional negligence. And there was no significant down side for them. This is not a case where the essential evidence on breach of duty had been or was likely to be lost - either the original scans show the malformation to a trained eye or they do not. So there was no obvious disadvantage to the radiologists in delay and a very considerable potential advantage.

[116] The third and crucial factor is that Ms Wolverson was at all times being guided by an apparently competent solicitor on what were essentially legal issues: the significance of time passing in the context of an existing order; and a potentially expired limitation period. While Ms Wolverson was involved in the decision not to pursue the evidence that might implicate the radiologists she reached that decision with the guidance of the solicitor. One thing that she was not told, or at least there is no suggestion she was told, is that she would jeopardise her rights to commence proceedings against the neurologists by delaying the procurement of the expert report.

[117] A crucial difference, I think, between my view and that of the majority is in the significance of the finding that Ms Wolverson "participated" in the decision to defer the obtaining of the expert radiological opinion.[106] The evidence relied on for the finding was given by the solicitor under cross examination.

"Yes. But the issue about the HQCC process is different where a claim is already, prima facie, out of time, isn't it, Ms Given?---Well, in my view, I hadn't considered that. In my view I considered that, given the complications of this case, and after discussing with my client, if the HQCC process was going to be beneficial, then that's - then we were going to proceed with that. It wasn't my position - as I've written in correspondence, was that I considered that the proceeding - proceeding with obtaining any further medical evidence, or proceeding with the PIPA process wasn't something I was going to proceed with while the HQCC proceeding was on foot. Now, that may or may not be correct, but that was my position. That was how I considered the matter was proceeding. So it wouldn't have occurred - I - it wasn't something that I contemplated, that while the matter may go through HQCC that I would be obtaining an expert report and make this application to the court, because to me, that would be inappropriate use of legal aid funds. It would be just not---[107]"

[118] The solicitor's views were strongly put: The "PIPA process wasn't something that I was going to proceed with while the HQCC process was on foot;"[108] and it would be an "inappropriate use of legal aid funds" to pursue the expert report while the HQCC process continued.[109] Ms Wolverson's choices were fairly stark. The inference is that Ms Wolverson would have needed to seek other solicitors if she rejected that advice. On that point it is not irrelevant that Ms Wolverson had previously consulted three firms of solicitors before her instructions were eventually accepted. Ms Wolverson's participation in the decision was hardly on an equal footing with the solicitor. She was told what she ought to do and she did it. Nor was it a decision informed by advice consistent with what the majority have found was a reasonable course to take.

[119] In the normal course clients act just as Ms Wolverson has done here - they follow the advice their solicitors give them.

[120] As the respondents point out, through all this time Ms Wolverson kept in touch with her solicitors. In doing so she did all that can reasonably be expected.

[121] The argument that the respondents press therefore becomes this: a lay person, in the physical condition that I have described, unversed in the intricacies of these statutory provisions, is said to act unreasonably in relying on the guidance provided by her apparently competent solicitors. That guidance - amounting to strong advice given the evidence of the solicitor - was not to presently incur potential expense and go to substantial trouble. The client was not given any compelling reason by her solicitor to proceed but was given reasons to accept the solicitor's advice and not to proceed, including that the proceedings might prove to be unnecessary and that the solicitors might withdraw causing further delay. I cannot accept this argument. No doubt one can imagine cases where no reasonable lay person could think that the advice they were receiving from their solicitors could be correct. But that is not the present case.

[122] Nor do I think it particularly relevant, for these purposes, that there were two proceedings, one against the neurologist and one against the radiologists. To the applicant's lay mind I could well understand the thinking being that her proceedings were for damages against "the doctors". Why mistakes were made (which is the assumption here) and who was responsible were matters that would be sorted out in the one trial.

[123] It is relevant too that the cases are obviously interrelated. The radiologists can only be liable if the failure to report the malformation impacted on the treatment offered. Dr Todman may seek to argue that his diagnosis was based, amongst other things, on the lack of any other apparent cause; that he could not be expected to see what several experienced radiologists missed; and that had he had the additional information of the existence of the malformation his approach would have been different. In other words it is the radiologists' fault. While the defences of the medical practitioners are still unknown it is a reasonable supposition that the radiologists may argue that it is the neurologist who has a complete view of the symptoms, symptoms usually only briefly summarised to them, and it is the neurologist who has the advantage. No one would think that there ought to be two separate trials of such inter-related proceedings. Why then accelerate the disposition of one side of the argument without the other? It would make little sense. Eventually there would need to be a delay of the accelerated proceedings to allow the other to catch up. I can well understand the decision to delay while the HQCC conciliation process was proceeding.

[124] In my view the same considerations apply to the period from May 2010 to the indication by HQCC (the following February) that it would proceed to conciliate. An apparently competent solicitor, cognisant of her duties, was guiding the process. To expect a lay person with no legal training or experience to appreciate what the solicitor did not is, in my respectful view, setting the bar far too high.

[125] That reasoning excuses the delay up and until the HQCC advised in October 2011 that the conciliation process was being discontinued. I am conscious that there had been an earlier indication in July of that decision but there was then an attempt to agitate to have the process re-opened by the applicant's solicitors explaining the further delay. I cannot see either that that was an unreasonable step to take or that Ms Wolverson acted unreasonably in following her solicitor's advice in taking it.

[126] What then of the further delay to August 2012 when Dr Earwaker's first opinion was obtained?

[127] What appears to have occurred is that the solicitors awaited the honouring by the HQCC of their undertaking to copy and return the MRI scans. Once the scans were returned the solicitors acted reasonably promptly. Nine weeks later they had the necessary report. It might be said that the solicitors could and should have done more to get the MRI scans back. I am not convinced that is so but that is not the issue. Rather the issue is whether the applicant should have done more to accelerate the process.

[128] According to the solicitor she was not inactive. She swore in her affidavit that "steps were taken to retrieve this information", and that there was "various correspondence and communication with respect to now having to proceed under the Freedom of Information procedures."[110] Eventually the scans were given up.

[129] From Ms Wolverson's perspective what was she to do? Presumably any enquiry of the solicitors would have been met with the response that the solicitor gave in her affidavit and evidence. Why would Ms Wolverson think that she would be more successful pursuing the matter on her own or that other solicitors, if she could find some, would have more success?

[130] The foregoing analysis is in my view consistent with the approach the Court has taken over decades to applicants for an extension of the limitation period. Gotterson JA has referred to McPherson J's observation in Neilson v Peters Ship Repair Pty Ltd[111] as to the position of a layperson placing a matter in the hands of apparently competent solicitors. While that is an observation on what is a question of fact for each case the wisdom of that approach has recommended itself to others - see for example the remark of Lucas J quoted with approval by Connolly J in Castlemaine Perkins Limited v McPhee[112] and repeated by Thomas J in Neilson:[113] "The question is whether a man of that background can be expected to do anything more than consult a solicitor, keep in touch with him and act according to the advice which the solicitor gives him from time to time ..."

[132] The second period of delay is not so critical. The proceedings were brought within 12 months of obtaining Dr Earwaker's first report and without the benefit of Dr Earwaker's supplementary opinion - the lack of evidence on the question of causation of harm seems to have gone unrecognised. Thus even if it be held that, acting reasonably, Ms Wolverson should have realised what her lawyers did not and sought an opinion on that crucial matter earlier than she did it makes no difference to the case.

[133] To return to the question posed by Keane JA in NF v State of Queensland - in my opinion no more could "reasonably be expected from the actual person in the circumstances of the applicant" than Ms Wolverson has demonstrated.

[134] The respondents argue that the primary judge applied the correct test, that his finding as to unreasonableness involved a finding of fact and that the considerations justifying an interference with a finding of fact as set out in Fox v Percy[114] are not satisfied.

[135] Here the facts are not contested. It is the inference from those facts and the judgment of what is or is not reasonable behaviour that is in issue. The relevant principle is summarised in this quote from the majority reasons in Warren v Coombes[115] repeated in Fox v Percy[116]:

"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."

[136] While the primary judge referred to passages in Neilson he has not, with respect, mentioned any of the considerations that impacted on Ms Wolverson's behaviour and decisions nor dealt with the crucial question of why a lay person following legal advice is said to act unreasonably. The steps from the statement of the problem to his Honour's conclusion that the time taken was excessive are left unexplained. The deference due to the primary judge's opinion should not result here in appellate restraint.

[137] That leaves the question of prejudice to the radiologists - a matter not decided by the primary judge and not directly relevant to the majority view of the case.

[138] The argument advanced for the second respondent is the same as that advanced for Dr Todman. Gotterson JA has explained why the arguments should be rejected, albeit in Dr Todman's case. Unless there is some material difference between Dr Todman's position and that of the radiologists it follows that a fair trial can be had on relevant issues by the latter. As between the radiologists the only distinction is a temporal one. On Ms Wolverson's case the second respondent reported on MRI images on 30 May 2006. The third and first respondents had reported on scans earlier (16 May 2002 and 21 June 2004 respectively) and the fourth respondent later (14 September 2007). The case pleaded against each of the radiologists is precisely the same.

[139] In my view Gotterson JA's reasoning applies just as much to the radiologists as it does to Dr Todman. There is no material distinction that I can see between the various practitioners.

[140] There are five grounds argued by the first, third, fourth and fifth respondents. They each suffer from the same problem that Gotterson JA has identified - it is not evident how the respondents are disadvantaged on any relevant issue and why there cannot be a fair trial of the issues.

[141] First, it is said that there was a three year delay between the time that Ms Wolverson first knew that the respondents had failed to identify the Chiari type 1 malformation and her bringing suit. Presumptive prejudice is said to arise.

[142] Secondly, scans, referrals, requests and images have not been retained by the respondents.

[143] Thirdly, MRI scans and x-rays taken at the Ayr Hospital, the Townsville Hospital and the records of a Dr Reimers have been lost. These records pre-dated Ms Wolverson coming under Dr Todman's care in 1992.

[144] Fourthly, "relevant material and records" have been lost as noted by Dr Mellick.

[145] Fifthly, Ms Wolverson has memory problems and those problems "constitute a source of prejudice for the respondents", although precisely how is not explained.

[146] Gotterson JA has explained why the claim of significant prejudice should be rejected. I would add this: From the radiologist's perspective Dr Todman was the referring doctor. His notes are available. While Dr Mellick did assert that he could not find "any clear description of the physical findings by Dr Todman" that is not the same as an assertion that those findings are unable now to be established. Dr Mellick went on: "Perhaps those are present in the large volume of notes (3 folders) some of which are not clear or fully legible because of faulty copying and may have been overlooked."

[147] Where, as here, Dr Todman, who treated Ms Wolverson through the relevant period, is available to give evidence and has not sworn an affidavit to claim any prejudice from loss of records or faulty recollection - when it would be in his interests to do so if that were the fact - the Court is entitled to be sceptical of claims of any significant prejudice. Only Dr Todman knows the true situation and he notably did not go into evidence. An inference can be drawn from his silence. Nor did the radiologists call him in their case to make good the speculation in the submissions that the gaps in the records might have some significance. Nor did the radiologists go into evidence to assert that they had considered the voluminous records that were available and identify why, given the extensive evidence that is available, they were disadvantaged in meeting the damages claim.

[148] In my view the following passage from Kirby J's reasons in Brisbane South Regional Health Authority v Taylor[117] sums up the radiologist's position here:

"If a defendant does not call evidence, or calls evidence which is unpersuasive or insignificant, provided it is reasonable to infer that some evidence was available to it in the circumstances the defendant cannot complain if the court concludes that no particular prejudice, over and beyond the generalities, could have been established by it. This is simply another way of saying that, because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of specific prejudice pertinent to the exercise of the court's discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of specific prejudice lies on the party making any such suggestion. This is what is meant by the 'evidentiary onus' resting on a proposed defendant in relation to such an issue."[118]

[149] While Kirby J was in dissent in the decision in Taylor the foregoing is not out of accord with the majority judgments and represents a common sense approach to the issue of prejudice and the evidence expected.

[150] In my view justice is best served by allowing the appeals to succeed against all respondents.

[151] I agree with the orders proposed by Gotterson JA in application 4576 of 2014.

[152] In appeal 4577 of 2014 I would allow the appeal, set aside the orders made below, and in lieu order that the limitation period for the commencement of proceedings by the applicant against the first, second, third, fourth and fifth respondents be extended to 31 July 2013, that the respondents pay the appellant's costs of the appeal, and that the costs below be the respective parties' costs in the cause.

[153] I wish to add that subsequent to the hearing of these appeals I became aware of a potential conflict. I communicated with the parties concerning the issue. I did so with the knowledge and concurrence of my colleagues. I record that no party has raised any objection to my continuing in the matter.

[1] [1984] HCA 17; (1984) 154 CLR 234.

[2] As s 79 of the Health Quality and Complaints Commission Act 2006 contemplates.

[10] AB633-635; proceeding No 1496 of 2010.

[11] Claim and Statement of Claim: AB637-641.

[14] AB642-643; proceeding No 2645 of 2013.

[20] AB193-209, especially at 207-209. This report was not received personally by Ms Wolverson until January 2014 because of difficulties in funding its cost: Reasons [62].

[21] AB390-394, especially at 393-394. Dr Earwaker elaborated that "coning" is a phenomenon in which there is a downward herniation of the abnormal cerebellar tonsils and mid brain with impaction of the foremen magnum, and that Ms Wolverson had undergone lumbar punctures.

[26] Reasons [10]. The reasoning implies, correctly, that the limitation period for the contractually-based claim would not have expired at a later date.

[28] [1993] QCA 114; [1994] 2 Qd R 431 at 434.

[33] [1995] QCA 339 at [7]- [11].

[42] AB776-781; Exhibit AMG-2 to the affidavit of A M Given sworn 15 May 2014 in support of the Application.

[46] [1975] 2 NSWLR 190.

[48] (1970) 45 ALJR 465.

[49] (1970) 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360 (n).

[51] [1970] 2 NSWR 238 at p 242.

[52] [1961] HCA 65; (1961) 108 CLR 642.

[53] [1961] HCA 65; (1961) 108 CLR 642 at p 645.

[54] [1970] 2 NSWR 238 at p 243.

[56] (1976) 10 ALR 303.

[60] The opinion of Dr Mellick would also support a claim for recovery against Dr Todman on an additional or alternative basis, namely, for stress suffered as a result of being misinformed that she was suffering from Multiple Sclerosis and from undergoing unnecessary treatment for that condition. His opinion also established a material fact of a decisive character relevant to recovery on that basis, namely, the availability of expert medical opinion evidence that the diagnosis of, and treatment for, Multiple Sclerosis was negligent.

[67] AB119; Affidavit A M Given sworn 24 January 2014, paragraphs 6-9.

[68] [1983] 2 Qd R 419.

[70] At 431. See also per Macrossan J at 425.

[71] AB52; Tr1-52 l43 - AB53; Tr1-53 l8.

[74] AB112; Affidavit of J K Wolverson sworn 24 January 2014, paragraph 37.

[78] AB122; Affidavit A M Given sworn 24 January 2014, paragraph 29.

[80] AB110; Affidavit of J K Wolverson sworn 24 January 2014, paragraphs 25, 29.

[81] AB16; Tr1-16 l39 - AB17; Tr1-17 l23.

[88] AB244; Letter from Avant Law Pty Ltd dated 24 June 2010.

[89] [1996] HCA 25; (1996) 186 CLR 541.

[91] See submissions of Ms Treston QC at para 27-29.

[92] [1984] HCA 17; (1984) 154 CLR 234.

[93] [1984] HCA 17; (1984) 154 CLR 234, at p 259.

[94] [1999] QCA 474; [2000] 2 Qd R 476 at [30]- [36].

[95] [2005] QCA 110.

[97] [1999] QCA 474; [2000] 2 Qd R 476 at [35]- [37].

[101] [2005] QCA 110, at [29].

[102] As it happens the Legal Aid Office declined to further fund the action against the neurologist demonstrating the point: AB429.

[104] AB111 - affidavit of Ms Wolverson at [32].

[106] See [75] above, the discussion at [71] and footnote 79.

[110] AB122 - affidavit at [29] and see her cross examination at AB46/30-45.

[112] [1979] Qd R 469 at 472.

[113] [1983] 2 Qd R 419 at 440.

[114] [2003] HCA 22; (2003) 214 CLR 118.

[115] [1979] HCA 9; (1979) 142 CLR 531 at 551.

[117] [1996] HCA 25; (1996) 186 CLR 541.