Ryan v Gold Coast Hospital & Health Service [2025] QSC 181 - Overview

In the recent matter of Ryan v Gold Coast Hospital and Health Service [2025] QSC 181, the plaintiff (Mr Trent Ryan) commenced a medical negligence compensation claim against the defendant, Gold Coast Hospital and Health Service.    

On 1 April 2013, the plaintiff experienced pain in the left side of his abdomen and consulted his general practitioner. The plaintiff was diagnosed with diverticulitis and was referred to the defendant. The plaintiff was admitted to the hospital between 15 and 19 April 2013 and treated with intravenous antibiotics under the care of Dr von Papen, a colorectal surgeon who worked for the defendant. The plaintiff thereafter resumed work. On 30 May 2013 Dr Walker, a gastroenterologist, conducted a colonoscopy and diagnosed sigmoid diverticular disease. The plaintiff was then referred back to Dr von Papen. The plaintiff continued to suffer recurrent abdominal pain and on 25 November 2013 he saw Dr von Papen who recommended he undergo a laparoscopic interior resection of the colon (the surgery). The plaintiff was told he would be able to return to work in six weeks. On 11 February 2014, the plaintiff underwent the surgery. Despite the surgery, the plaintiff continued to suffer pain in his left iliac fossa. The plaintiff saw Dr von Papen who told him the healing process was longer than anticipated. The plaintiff was not able to return to work. Dr von Papen recommended a further operation in October 2014, and the plaintiff underwent a laparoscopic division of the adhesions on 11 November 2014. The plaintiff was subsequently referred to a chronic pain clinic because of continuing pain in the left lower abdominal quadrant. In November 2014 it is alleged Dr von Papen told the plaintiff that he thought that the doctor who carried out the earlier procedure may have damaged a nerve in the form of a neuroma. 

Upon engaging solicitors, and on 15 July 2016, Dr Mellick, neurologist, provided his report (Mellick report). Dr Mellick referred to the history of the matter and noted that the plaintiff’s current status was intermittent bouts of fever, diarrhoea and vomiting, and this has continued since the surgery was performed in February 2014. He was on pain killing medication and had gained about 25 kilograms in weight since being unemployed. He referred to the various medical reports which had been obtained. On neurological examination, he found no evidence of thoracic nerve disorder resulting in referred pain into the left lower abdominal quadrant. He did not identify local abnormalities pointing to the presence of a traumatically based neuroma in the abdominal wall. There was no evidence establishing the presence of neural entrapment syndrome, as suggested by Dr Grice. He was unable to establish that the pain was a consequence of the failure to perform the operations with due care and skill. He was unable to establish evidence for a statement that the nerve injury resulted from a procedure undertaken by a registrar. There was a connection between the surgery and occurrence of pain. 

On 5 September 2016 Dr Conrad, a surgeon, provided his report (first Conrad report). Dr Conrad noted the plaintiff continued to have ongoing, constant pain in the left iliac fossa. He had been taking very heavy pain medication, was unable to return to work and was on a disability pension. In Dr Conrad’s opinion, the plaintiff presented with acute recurrent sigmoid diverticulitis which was treated by intravenous antibiotics for the initial flare up in April 2013. When he was advised to undergo the laparoscopic resection, he had no communication with Dr von Papen, but with two registrars. The registrars did not discuss the complications or magnitude of the operation. While a printed list of complications was given to him, the plaintiff does not recall them discussing the possibility of damage to a cutaneous nerve causing chronic pain. There was no discussion of the alternative of continuing conservative treatment with antibiotics. It was Dr Conrad’s view that the Doctors did not act in a manner widely accepted in Australia as competent professional practice. 

He said: 
 
“The reason for this departure from accepted practice was that Mr Ryan was not properly warned of the dangers and complications of anterior resection of the sigmoid rectum for chronic diverticulitis. This is a very major procedure and has a relatively signification complication rate. It is my view that it is absolutely mandatory for a surgeon or surgeons to adequately consent a patient, carefully verbally, as well as in writing outlining all of the possible significant complications. These complications can be anastomotic leakage, adhesions and certainly injury of a peripheral nerve should be mentioned.” 
 
As a result of the operation, the plaintiff has been left with chronic neurology pain which is resistant to conservative treatment. Dr Conrad agreed with Dr Grice that the plaintiff  should be provided with a chronic nerve stimulator. His prognosis for recovery is extremely poor. 
 
On 9 February 2017 the plaintiff served an initial notice pursuant to s 9A of PIPA on the defendant. On 1 March 2017 he served a part one notice of claim on Crown Law which was supported by the first Conrad report. A further report from Dr Conrad (second Conrad report) and a statutory declaration was served on the defendant on 6 August 2017. The defendant sent a compliance letter on 5 September 2017. On 5 March 2018, the plaintiff obtained leave pursuant to s 43(1) of PIPA to commence urgent proceedings in the District Court despite non-compliance with PIPA. The rights of the defendant under the LAA were reserved. On 5 March 2018, he filed his claim in the District Court and on 1 April 2022 he applied to the Supreme Court to transfer the proceedings to the Supreme Court. It is common ground that under s 11(1) of the LAA, the limitation period for actions for personal injury is three years. The procedure was undertaken on 11 February 2014 hence the expiry of the period was 11 February 2017. Mr Ryan commenced his claim by notice of claim on 1 March 2017, just outside of the limitation period. The first issue to be determined is whether to extend the limitation period pursuant to s 31 of the LAA. The second issue to be determined is whether an order should be made under s 59(2)(b) of PIPA. The third issue is whether the plaintiff should be given leave to add a cause of action pleading breaches of the ACL. The final issue is one of costs. 
 
The plaintiff submits that the evidence contained in the first Conrad report was a material fact of a decisive character and was not within the means of knowledge of the plaintiff before 8 September 2016. It is submitted that the plaintiff took reasonable steps to find out about the material fact in the first Conrad report before he received it. He instructed solicitors within about a year of the procedure and took steps to address his pain. It was not unreasonable for the solicitor to conduct further investigations before obtaining the Mellick and (first) Conrad reports. The notice of claim was filed on 1 March 2017 which was only six months after the first Conrad report. In the circumstances, an order should be made extending the limitation period. 
 

In its consideration, the Court provided as follows at [40] to [49]:  

It must be appreciated that sometimes proof in a medical negligence case is not easy to obtain. It has been the experience of the courts that sometimes it is difficult for a plaintiff to obtain expert medical evidence on the question of liability. In those circumstances, the obtaining of an expert report which supports the allegation of negligence against medical practitioners is an important piece of evidence in such cases. 

In this case, I am satisfied that the first Conrad report was a material fact of a decisive character. For the first time the plaintiff was advised that the failure to warn him of the risks of the operation was negligent. This goes to the heart of his action. 

In my respectful opinion, this was a crucial fact to be considered. In my opinion he had taken appropriate advice prior to this point and had not unnecessarily delayed matters. He had contacted Mr Weller in March 2015. It no doubt took Mr Weller some time to obtain a number of documents before seeking expert evidence, including: 

  1.  The medical records of the defendant. 
  2. The reports of Dr von Papen dated 2 October 2014 and 23 November 2015
  3. The reports of Dr Grice between 21 May 2015 and 2 December 2015.
 Once he had obtained this material, he sought expert opinions in May and August of 2016. That does not seem unreasonable to me. 

I consider reasonable steps had been taken to obtain the evidence before 8 September 2016 and appropriate advice was given. 
 
In the circumstances, I am satisfied that the plaintiff has established that which he needs to under s 31(2)(a) of the LAA. 
 
I also consider there is evidence to establish a right of action. The first Conrad report clearly raises a failure to warn case.[3] On the evidence there seem to be significant risks with this kind of surgery and clear warnings are needed prior to obtaining consent. The allegation is that these warnings were not given appropriately, and Dr Conrad considered this failure to be below the appropriate standard of medical practice at that time. 
 
There are the considerations relevant to the discretion mentioned in Brisbane South Regional Health Authority v Taylor. In my view, as the notice of claim together with relevant medical evidence was served in 2017, it cannot be said that there is prejudice because of delay. Instructions could be taken early on to be able to place the defendant in a position to adequately defend the case.    
 
Accordingly, I am satisfied there is a right of action available to the plaintiff here. 
 
In the circumstances, I am satisfied I should extend the limitation period for a period of 12 months.
 
Further, the Court provided at [54]:

In this case I am satisfied on the evidence that: 
  1.  A complying notice of claim was given at the latest by 15 August 2017. 
  2.  I am satisfied that this complying notice was served within the limitation period by reason of s 59(4) of PIPA, that is before 7 September 2017. 
  3.  I am satisfied that I should give leave under s 59(2)(b) to allow the plaintiff until 5 March 2018 to commence his claim.
  4.  The plaintiff did commence the proceedings on 5 March 2018.
  5.  I am satisfied that in light of the early notice of this matter, there is no prejudice to be suffered by the defendant.
  6.  I am satisfied I should declare that his proceedings have been validly commenced.

In relation to causation and the alleged breaches of the ACL, the Court provided at [66] to [69] as follows:

The original claim from March 2018 simply claimed “damages.” Arguably, that was deficient. However, in the original statement of claim the basic facts were pleaded which gave rise to an allegation for breach of contract, negligence and misleading or deceptive conduct. I consider these facts sufficiently encompass breaches of ss 18 and 60 of the ACL. 

On 25 October 2022, an amended statement of claim was delivered alleging the plaintiff was a consumer as defined and further alleging that under s 60 of the ACL the defendant guaranteed that its services would be rendered with due care and skill and it was not to engage in misleading or deceptive conduct. It was alleged that the defendant breached these sections. The allegations of breach rely on the same allegations as the failure to warn. 

In my respectful view, when I consider the terms of the original statement of claim and the terms of the amended one, I consider that the requirements of r 376(4) have been established. I am satisfied that the new causes of action arise out of the same facts, or at least substantially out of the same facts as previously pleaded. It is a question of degree, but I am satisfied that the test has been fulfilled. In those circumstances, I prepare to make the amendments sought by the plaintiff. 

If the plaintiff is correct in his assertion that the notice of claim is the proceeding, I am also satisfied this was broad enough to encompass the alleged breaches of the ACL.

Ultimately, on 7 August 2025, the Supreme Court of Queensland ordered as follows:

  1.  Pursuant section 31(1) of the Limitation of Actions Act 1974 (Qld) the limitation period for the plaintiff’s actions in negligence is extended until 11 February 2018. 
  2.  Pursuant to section 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) I order that the plaintiff had until and including 5 March 2018 to file his claim.    
  3.  I declare the proceedings to be validly instituted.   
  4.  Pursuant to rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) the plaintiff is granted leave to have made all the amendments since the notice of claim was served under Personal Injuries Proceedings Act 2002 (Qld).
  5.  Pursuant to rule 382(1) of the Uniform Civil Procedure Rules 1999 (Qld) the plaintiff is granted leave to have filed the amended reply without distinguishing amendments in the reply. 
  6.  The defendant’s application filed 29 April 2025 is dismissed.
  7.  I order that the costs of and incidental to all applications are costs in the cause.

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