Jessie Patricia Magarey: Supreme Court dismisses amputee’s attempt to extend limitation period to sue Nambour Hospital

A woman whose leg was amputated after she underwent several surgeries and contracted a rare bone infection has lost her bid at a chance to sue the Nambour Hospital for damages.

Nambour Hospital.

A woman whose leg was amputated after she underwent several surgeries and contracted a rare bone infection has lost a Supreme Court bid for the chance to sue Nambour Hospital.

Jessie Patricia Magarey applied to the court seeking an extension on the limitation period applicable to a claim for damages for personal injuries she may wish to pursue against the hospital.

Justice Susan Brown presided over the hearing in June and on September 24 she delivered her verdict and dismissed the application.

It was alleged an initial surgical treatment in 2015 was negligent and “set off a train of events which ultimately resulted in (Ms Magarey’s) knee being amputated”.

According to court documents, Ms Magarey injured her right ankle while descending a ladder in 2013.

When the pain became severe she sought treatment and at the advice of a doctor at Nambour Hospital she underwent ankle fusion surgery twice between 2015 and 2016.

After being told there was non-fusion and pins needed to be removed, she consulted another doctor who advised her that another surgery was needed in December 2016.

The court documents said it was at that point that Ms Magarey considered whether she might have a legal claim relating to the treatment she received.

In 2017, Ms Magarey contracted a rare bone infection caused by foreign material such as screws and nails used in orthopaedic surgery.

After four more surgeries Ms Magarey was told the infection was worsening and in August 2018 doctors performed a below the knee amputation.

Ms Magarey had consulted solicitors in 2017, who advised her that she did not have any prospect of success in making a claim however later that year she engaged CMC Lawyers to act on her behalf.

The solicitors obtained reports and medical opinions in 2020, after the period of limitation had expired.

“Section 11 of the Limitations of Actions Act prevents actions for personal injuries being brought after the expiration of three years from the date of the cause of action.” Justice Brown said.

“The limitation period likely expired in May 2018 in relation to some acts of alleged negligence and possibly in August 2019 in relation to others.”

Justice Brown said there was a lack of action and several delays by CMC Lawyers.

A solicitor from the firm who was a witness in the hearing said the delays were due to the firm not wanting to engage in “fruitless litigation”.

“While one understands the firm needing to confirm that the claim of the applicant had merit, such an explanation does not adequately explain the lengthy delays in CMC Lawyers taking steps to get the relevant records, brief an expert and obtain a report after they had been engaged, particularly when it was aware that the alleged negligence related to, inter alia, surgery first carried out in May 2015 and when it was aware of the time frames that had to be met under PIPA prior to being able to instigate proceedings,” Justice Brown said.

The Sunshine Coast Hospital and Health Service (Nambour Hospital) opposed the granting of an extension on the basis that the material fact relied upon by Ms Magarey was available within the limitation period had reasonable steps been taken by her and her solicitors.

“In all of the circumstances, given the lack of any real evidence to show she had followed up with CMC Lawyers as to the progress of the matter in circumstances where it was taking an extraordinary period of time to obtain a report, the applicant failed to make an inquiry in an appropriate fashion,” Justice Brown said.

“I find that the applicant has failed to discharge the onus to persuade me that the material fact was not within her means of knowledge.

“In the circumstances, it is a very unfortunate result, particularly given the failures I have identified in relation to the actions of the applicant’s solicitors.”