The Supreme Court at Rockhampton has granted a psychiatrically injured plaintiff, Ellie Wilson, a time extension. Ellie can now seek personal injury compensation for medical negligence after 22 years of delay. Her claim alleges she suffered a psychiatric injury because Mackay Base Hospital negligently caused the death of her sister Kate. Ellie was 4 years old at the time and her sister Kate who sadly passed away was just 2 years old.
Mackay Base Hospital sends sick baby home
On 27 February 1999, Kate Wilson was 2 years old when she got sick with vomiting and diarrhoea. Her mother took her to Mackay Base Hospital. At the time, Kate’s sister Ellie was 4 years old. Mackay Base Hospital assessed Kate and discharged her home. Ellie recalls that after Kate returned home, Kate was unable to get up and play and appeared to be ignoring Ellie. Ellie witnessed Kate vomiting large volumes of dark brown fluid. Kate was returned to Mackay Base Hospital by an ambulance. Tragically, she died on arrival, less than 3 hours after her initial discharge.
Psychiatric injury
Kate’s sister Ellie, who was herself just 4 years old was greatly distressed. Ellie suffered disturbing dreams and found the periods between December and February when she commonly spent time with family very difficult, because Kate had died in late February.
Despite this very distressing experience, Ellie succeeded at school and only attended a psychologist once in 2012 or 2013 when she was about 16 or 17 years old. Ellie found the psychologist helpful and learned some coping strategies to deal with anxiety.
Five years of university education
In 2013 at the age of 17, Ellie moved from Mackay to Brisbane and started a 3 year Bachelor of Fine Arts (Drama) at QUT. Despite suffering panic attacks and flashbacks that increased to 3 to 4 times per week, she completed the degree. She was referred to a psychologist in late 2013 or early 2014 and completed 6 sessions of cognitive behaviour therapy to address her anxiety, panic, PTSD and depression. She then commenced a Masters of Teaching (Early Childhood) and completed it in the usual 2 year period. By November 2017 at age 22, Ellie had completed 5 years of university education.
Time to claim runs out
On 17 August 2016, Ellie turned 21 years of age and the time limit for her to commence court proceedings compensation for the psychiatric injury ran out. She had witnessed her sister Kate’s illness and death on 27 February 1999. For an injured child, the 3 year time limit starts when they turn 18 years of age (so it expires when they turn 21). For an adult with the mental capacity to instruct a lawyer, a medical negligence claim has a 3 year time limit to start Court proceedings.
Ellie starts working part-time
After completing her Master’s degree in November 2017, Ellie began teaching at Bethany Lutheran Primary School in January 2018, 2 days one week and 3 days the next. She also worked as a casual relief teacher for Education Queensland and Lutheran Education Queensland. On 14 August 2020 her psychologist told her she was not going to cope with full time work. That meant Ellie was going to lose a lot of wages. She was still only in her mid 20’s and had many years of working life ahead.
Ellie seeks time extension to claim compensation
At her time extension court hearing, despite a most careful and gentle cross examination by senior counsel for the Mackay Base Hospital, Ellie found it difficult to control her emotions and was crying during most of it. Discussing the past triggered distress and caused a setback in her treatment for the condition.
The court summarised the 3 year time limit extension test to claim medical negligence injury compensation, by referring to the earlier time extension decision in Ferrier v WorkCover Queensland [2019] QSC 11 at [23]:
- all material facts;
- of a decisive character;
- was not within the applicant’s means of knowledge until a date no more than 12 months prior to the relevant date (a filing of a claim and statement of claim or equivalent under the Worker’s Compensation Rehabilitation Act 2003 (Qld), the Personal Injury Proceedings Act 2002 (Qld), the Motor Accident Insurance Act 1994 (Qld);
- there is evidence to establish a right of action – “something like a prima facie case”; and
- no prejudice, in the relevant sense, would be occasioned to the respondent that would justify disallowing the application.
The time extension test considers whether the injured plaintiff can prove that on the day they filed a claim and statement of claim, it was only within the last 1 year that they could reasonably have been expected to work out that it was worthwhile to make an injury compensation claim and that there was some evidence that if accepted would allow them to win the claim. Also, that the delay since the injury is not so long that the defendant would not be able to get a fair trial. For example, due to evidence being lost because many years have passed, witnesses’ memories fading, witnesses dying or not being locatable.
Ellie argued that until her psychologist indicated on 14 August 2020 that she would not cope with full time work, she did not realise and could not be expected to have worked out, that it would be worthwhile for her to make the compensation claim. Prior to that, she had hoped to be able to work fulltime as a teacher. It was only when she knew that was no longer possible, that a compensation claim became worthwhile. The long term inability to work full time would accrue enough loss of earnings compensation to justify a claim.
Court grants time extension
The Court noted that Ellie was an intelligent, educated young person. The court accepted the evidence that it was never indicated to Ellie that full time employment was not possible, until her psychologist told her on 14 August 2020.
The Court found Ellie acted reasonably in seeking medical and legal advise about her position. Ellie consulted a lawyer at an earlier date, but was told a claim is only “possible.” Ellie was not expected to think that meant a claim would be worthwhile.
The court found there was sufficient medical evidence for a prima facie case against Mackay Base Hospital for the negligent death of Ellie’s sister Kate.
The Mackay Base Hospital complained that the psychologist who saw Ellie in 2013 no longer had the clinical record for that consultation. The court accepted the loss of that singular attendance record did work some prejudice against the Mackay Base Hospital. However the court found this to be minor and inconsequential. Another prejudice the Mackay Base Hospital complained of was that Dr Sadleir, the clinician who saw Kate at the Mackay Base Hospital on the morning of 27 February 1999, felt distressed by the case including the coronial inquest. The court concluded that did not amount to specific prejudice.
The court found there were numerous hospital records about Kate’s death as well as a coronial inquest. There was a great deal of information available regarding the circumstances surrounding Kate’s death. General prejudice arising from the passage of time was offset by the availability of extensive medical records.
His Honour Justice Crow granted Ellie a time extension to sue the Mackay Base Hospital for her psychiatric injury. Her injury, including PTSD was caused by witnessing her sister Kate’s illness and allegedly wrongful death on 27 February 1999.
Conclusion
It is quite common for injured people to be granted a time extension because they did not know their injuries would significantly interfere with their ability to work in the long term, so long as they commence Court proceedings within 1 year of working that out. Being university educated does not mean you are expected to work this out before a medical expert tells you. Availability of extensive medical records offsets the prejudice caused by a very long delay since the injury event.
Recoverable costs
Having won her time extension application, Ellie asked the Mackay Base Hospital to pay her legal costs for denying the time extension and forcing her to take the fight to Court. Mackay Base Hospital tried to avoid paying Ellie’s legal costs. It argued that time extension applications are a special case where the general rule about costs does not apply. The general rule is that that the loser pays the winner’s costs. It argued that rule is replaced in time extension cases by a rule where costs are “reserved” or are “costs in the cause” (both of which mean the injured plaintiff may only get their costs if they win the compensation claim later).
The Court rejected the notion that a successful time extension is an “indulgence” from the Court. At paragraph [15] His Honour Justice Crowe said: “… An application to extend the limitation period is a discrete application that is antecedent to court proceedings proper and as such success ought to be measured on an individual basis, not as part of a broader scheme.” He then awarded Ellie her costs. Ellie’s case is a good precedent for plaintiffs and will no doubt assist other injured people who find themselves in a situation where the time limit to claim has expired or they get their extension and the defendant tries to dodge paying their legal costs.
Wilson v Mackay Hospital and Health Service [2021] QSC 178
Wilson v Mackay Hospital and Health Service (No 2) [2021] QSC 214