HOME / ‘Demoralised Person in Physical and Mental Distress’ Granted PI Time Extension

FEATURE ARTICLE - Advocacy, Issue 102: December 2025

‘Demoralised Person in Physical and Mental Distress’ Granted PI Time Extension

BY Richard Douglas KC - Hemmant’s List

In Ringelstein v Metro North Hospital and Health Service [2025] QCA 188 (10 October 2025), the Queensland Court of Appeal allowed an appeal by a plaintiff in respect of a refusal, in the Trial Division, to grant her an extension of the three year limitation in respect of her contended cause of action for medical negligence. The limitation period expired in 2007. The issue was whether the plaintiff had taken reasonable steps to put herself in a position to ascertain a relevant material fact of a decisive character. The key piece of reasoning of the court was this:

[91] In my view, a demoralised person in physical and mental distress, with no available evidence of negligence by the hospital, who has twice been unable to enlist the help of solicitors except on terms that she pay a sum she could never have paid, and whose health and mental condition continued to require her attention, cannot be said not to have acted reasonably by not trying yet another approach to another law firm which would itself be futile if (as was to then her only experience) she was to be called on to provide any funds.

The Court (Doyle JA, Bond JA and Crowley J agreeing) wrote:

…

[2] This is an appeal from the dismissal of an application for an order extending the limitation period for the commencement of proceedings until 23 June 2023.

The facts

[3] The appellant underwent surgery at the Caboolture Hospital on 15 June 2004. She was then 48 years of age, married with 4 children. The respondent is established under the Hospital and Health Boards Act 2011 (Qld) and conducted the Caboolture Hospital.

[4] Complications arose from that surgery. They are alleged to have arisen because of deficiencies in the care she received in and arising from the surgery. The appellant alleges that she experienced pain, numerous distressing symptoms and depression. Subsequently she has undergone a number of other surgical procedures which have not resolved her health issues. All of this has led to a significant impact on her physical health, her mental health and her life in general.

[5] The primary judge set out an abbreviated chronology of some of the core relevant events in his Reasons, which I gratefully adopt. I will return later to supplement the chronology, but the primary judge identified the following:

DateEvent18 November 1956Applicant’s date of birth.15 June 2004Applicant undergoes a total abdominal hysterectomy and posterior repair performed by the surgeon at the Caboolture Hospital.22 June 2004Applicant transferred to Kilcoy Hospital.8 July 2004Applicant transferred from Kilcoy Hospital back to Caboolture Hospital with what was discovered to be faeces in her vagina. Applicant diagnosed with rectovaginal fistula.18 July 2004Applicant transferred from the Caboolture Hospital to the RBWH for further consultation regarding her rectovaginal fistula.21 July 2004Applicant undergoes EVA rigid sigmoidoscopy and sigmoid loop colostomy.27 July 2004Applicant undergoes laparotomy refashion colostomy and debridement of stoma site.2 August 2004Applicant undergoes psychiatric review at RBWH. Applicant states she found it “hard to cope being in hospital, badly misses her family, feels lonely.”2004–2006Applicant 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.24 September 2008Applicant 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.7 January 2009Applicant approaches Clewett Lawyers asking for another copy of the letter and costs agreement to be sent to her.20 January 2009Clewett 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.4 October 2010Applicant approaches Slater & Gordon Lawyers.17 November 2010Correspondence from Slater & Gordon advising that they are unable to assist her.May 2022A 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.27 June 2022Applicant 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 $10,000.00.16 August 2022Correspondence from the respondent advising that the care provided to the applicant was “care below the expected standard”.19 June 2023Consent order pursuant to s 43 of the (QLD) Personal Injuries Proceedings Act 2002 to permit the applicant to start proceedings without having completed the pre-Court procedures.23 June 2023Applicant commences proceedings in the Supreme Court.7 October 2023Report of Dr Geoffrey Reid, Gynaecological Surgeon16 October 2023Further report of Dr Geoffrey Reid, Gynaecological Surgeon

[6] The time within which proceedings for personal injury caused in these circumstances can be commenced would likely have expired in mid-2007. 2 The Limitation of Actions Act 1974 (Qld) (“the Act”) permits the court to extend that time in limited circumstances, identified materially in subsection 31(2) which provides as follows:

(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.

[7] For the purposes of that subsection, s 30(1)(c) provides:

(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.

[8] If an applicant establishes that a material fact of a decisive nature was not within the applicant’s means of knowledge (as defined) until a date after the limitation period expired, then the court may extend time to expire one year after the date when the material fact became known to or within the means of knowledge of, the applicant: s 31(2) of the Act. In this case, as the proceedings were commenced on 23 June 2023, the appellant in effect had to establish a material fact of a decisive nature was not within her means of knowledge (as defined) until after 23 June 2022.

…

[15] The respondent urged upon this Court that, the primary judge having exercised a discretion not to extend the limitation period, in order to succeed on the appeal the appellant needs to show reviewable error in the sense described in House v R (1936) 55 CLR 499 at 505. The respondent supported this submission urging that the question whether the appellant had “taken all reasonable steps to find out the fact before” the relevant time is an evaluative one in respect of which reasonable minds might differ. It followed, it was submitted, that this was correctly characterised as the exercise of a discretion and so to succeed on the appeal the appellant had to satisfy the test in House v R.

[16] That submission cannot, however, be accepted. Whilst ultimately, s 31 confers upon the Court a discretion to be exercised, the occasion to exercise it is dependent upon, inter alia, it appearing to the court that the third element of the requirements of s 31(2)(a) was satisfied. The question for this Court is whether the primary judge was correct or in error in determining that that requirement had not been satisfied. It was on that basis that the primary judge refused the application and in exercise of a discretion.

…

The 12 year period

[81] By the 17 November 2010 letter she was again advised of her need to act but seeking payment of a greater sum. She could not pursue that avenue.

[82] The third is the period from that letter until June 2022. In this period the medical records chronology has over 40 entries. These included:—

DateDescription13.05.2019Applicant presented to Kilcoy Hospital ED with referral from Dr Weller’s surgery for insertion of a permanent IDC due to severe perineal excoriation secondary to urinary incontinence.20.05.2019Applicant presented to Kilcoy Hospital ED with pain around IDC insertion site + bypassing.Plan: IDC to be removed permanently — no indication. Revert back to pads and barrier cream. GP to follow up — social isolation and problems at home beyond the scope of ED. Oral trimethoprim for 3–7 days. To represent if worse.Primary diagnosis of cystitis.25.11.2019Applicant presented to Kilcoy Hospital ED with vomiting. Large amount of fluid leaked out of stoma this morning. Triage priority 4.Diagnosed with gastroenteritis.09.04.2020Applicant required ongoing assistance with stoma wound care at the Caboolture Hospital.21.11.2021Applicant attended the Kilcoy Hospital emergency department for acute abdominal pain and possible obstruction related to her parastomal hernia. Left upper quadrant pain 10/10.

[83] It is this period to which the primary judge refers as the period of 12 years delay and principally which, as a result of the appellant not taking any step in that time, meant she had failed to discharge her onus of establishing the prerequisite, in s 30(1)(c) to the existence of the discretion to extend time.

[84] There are factors which support the conclusion of the primary judge.

(a) It is accepted that the appellant has suffered considerably and over a long time from her surgery and its sequela. This has included significant mental health issues.

(b) But she has retained the capacity to deal with significant matters in her own interests including her surgery and other treatment options.

(c) She has also shown herself able to interact with lawyers in 2008 to 2010 despite her conditions. Similarly, she had the capacity to complain to the Caboolture Hospital in 2004 and to take up a further complaint in 2022 followed by then engaging with lawyers in 2023.

(d) The appellant was aware of the urgency and importance of making an application for an extension of time and of the significance of an expert report to doing so. She knew as well that what stood in her way was her continuing inability to afford to do so and that those lawyers she had approached would not fund it themselves. There was an avenue of which she was informed, to seek to identify other lawyers (impliedly who might be willing to do so).

(e) It is correct to say the appellant did nothing to pursue that avenue.

[85] But that identifies something that might have been done, not that it was a reasonable step for the appellant to have done so.

[86] In my view, the appellant has established that, having regard to her circumstances she had taken all reasonable steps to find out the facts within the meaning of s 30(1)(c) by the steps she took. This is for the following reasons (many of which are touched on above).

(a) She had approached two law firms to represent her but in each case was confronted with a requirement to pay a sum she simply could not afford. Her financial situation was not improving, quite the reverse.

(b) There had been a striking negative impact on her health, both physical and mental, after the initial surgery. That continued throughout this 12 year period.

(c) Her mental condition was such that, while she had capacity to take steps especially in connection with her medical condition, she can be said to have been demoralised.

[87] Why then did she not pursue the avenue of approaching the Queensland Law Society to try to identify another law firm willing to act on a no win no fee basis?

[88] She offered a clear and materially unchallenged explanation in her first affidavit at [59] as follows:—

Despite attempts to seek legal advice and have my complaint addressed internally with Queensland Health I was unable to get anywhere. After the rejection from Slater and Gordon, I did not think there was any way I would be able to pursue a claim. I had tried to lodge a complaint with Queensland Health and tried two lawyers which got nowhere, so I gave up and didn’t pursue it any further and concentrated on my physical and mental health.

[89] This is consistent with her oral evidence to which I have referred which shows she was demoralised.

[90] It is no answer to that to point to her retaining a capacity to have called or contacted the Queensland Law Society. It is not in issue that she could have done so, but in my view it was reasonable not to have done so.

(a) Apart from the physical manifestations, she had no evidence of the surgery and her care having been negligently performed and no encouragement for that view from the Hospital’s response to her complaint in 2004.

(b) She had tried twice to engage law firms to act for her, including one at least which is well known to be one offering no win no fee retainers in some cases. Those approaches had led to failure.

(c) She had no experience dealing with lawyers and it is not suggested she had any degree of sophistication so as to appreciate a different outcome from approaching the Queensland Law Society. The letter from Slater & Gordon did not in fact advise her that through the Queensland Law Society there was a realistic prospect of another firm being willing to fund her obtaining an expert report.

(d) Her understanding of it in the witness box was that the letter of 17 November 2010 did not encourage a view that she would be likely to be able to mount a claim even if an expert report could be obtained.

(e) Her family had no money, living week to week to pay expenses. Her physical condition was poor and her mental state deteriorating.

(f) In those circumstances it was reasonable for her, as she swore she did, to have given up. She thereafter continued to focus on trying to recover her health to some degree, which was on the evidence a demanding activity.

The final period

[92] The final period is that from June 2022 to the commencement of the proceedings. In this period the medical records chronology has 11 entries. These included:—

DateDescription –19.09.2022Applicant referred to stoma therapist by Dr Lindsay Cochrane.28.09.2022Applicant reviewed by Dr Tee. Current stoma issues:–Intermittent low volume bleeding.–Blow outs and leakage.28.09.2022Letter from Dr Robert Lawless (general surgery, Redcliffe Hospital) and Dr Jimmy (Chin Li) Tee to Dr John Warren (Kilcoy General Practice)The Applicant is seeking stoma care assistance closer to home. Current stoma issues include: intermittent low volume bleeding, blowouts and leakage from the stoma appliance, and the change in shape as her weight loss continues.She is worn down and fatigued by stoma cares, and is seeking reversible and definitive intervention in the future once she meets her weight loss goals. She describes ongoing brown, offensive vaginal discharge which she attributes to her colovaginal fistula.On examination with the stoma appliance taken down and refitted by stoma coordinator, skin was healthy and intact peristomally.Plan to see in four months to assess progress.07.11.2022Applicant was reviewed at the Caboolture Community Health Diabetes Clinic. Applicant is attending the TOMS Program at North Lakes Health for weight loss. She reportedly felt well, despite being disappointed that the bariatric surgery could not proceed due to intra-abdominal adhesions from her previous surgery.01.02.2023Letter from Dr Jimmy (Chin Li) Tee, Clinical Director of General Surgery at Redcliffe Hospital to Dr John Warren (Kilcoy General Practice).The Applicant presented to the Surgical Outpatient Clinic reporting increasing frequency of vaginal discharge affecting her mood with a long-standing para-stomal hernia and loose motion from the stoma. She was hoping for definitive surgery to treat the rectovaginal fistula and to reverse her stoma. Dr Jimmy noted that, due to the Applicant’s abdominal history and her body habitus, there were minimal surgical options and the success rate of such surgery would be extremely low.14.02.2023Applicant presented to the Kilcoy Hospital Emergency Department with pain in her right flank similar to previous kidney infection pains in 2019. Primary diagnosis: urinary tract infection.05.03.2023Applicant presented to the Caboolture Hospital Emergency Department at 0600 hours via ambulance with “abdo pain radiating to back region (pain near the stoma) – vomiting. Pain on urination. Urine dark. Pain moderate. QAS given morphine.” Applicant had flank tenderness on examination.Primary diagnosis: urinary tract infection.Applicant reported to the ambulance that she has had a “long history of medical surgery bungling 18 years ago with hysterectomy at Caboolture hospital and has caused problems ever since.”Observations were within normal limits. Applicant discharged the following day.13.03.2023Applicant presented to the Kilcoy Hospital emergency department having been unwell for a few days feeling nauseous and reporting shivers, reporting R flank pain. Similar symptoms one month prior but nil found on ultrasound.Impression: UTI – ? Pyelonephritis — assoc dehydration.Requires IV rehydration (active vomiting).Primary diagnosis: Urinary tract infection.

[93] In addition, as set out in the primary judge’s chronology, in this period the appellant was for some time in contact with the respondent with a view to reaching some compensation arrangement. That was inconclusive. The appellant attended a meeting on 27 June 2022 where a good will offer was made to her. She was contacted about this again on 4 August 2022 and then received a letter from the respondent on 16 August 2022. The chronology extracted from the medical records shows that her health continued to cause her significant difficulty throughout this period.

[94] Then on 3 March 2023 the appellant approached Slater & Gordon seeking advice (at that point about the offer received from the respondent). This led to that firm representing her, sending an Initial Notice under s 9A of the Personal Injuries Proceedings Act 2002 (Qld) on 14 April 2023, causing other pre-proceedings steps to be undertaken leading to the commencement of proceedings, in June 2023 and commencing proceedings.

[95] In the circumstances what the appellant did in the time presently under consideration constitutes all reasonable steps she could take in my view.

(a) She now had some indications that the care she received was substandard.

(b) She took time to receive and then consider with her lawyers the offer made to her.

(c) She then retained the solicitors who it can be inferred did not now require payment in advance, to represent her interests which they then set about doing promptly.

(d) She did all of this while dealing with her medical conditions.

Extension of time

[96] It follows that the primary judge’s conclusion was in error. Both parties accepted that this Court could (and urged that we should) in those circumstances exercise the discretion conferred by s 31 and no reason was advanced why that should not be exercised to grant the requested extension to 23 June 2023.

(emphasis added)

A link to the decision is here.

‘Demoralised Person in Physical and Mental Distress’ Granted PI Time Extension

Read more from Richard Douglas KC