Black v Hillier

[2025] NSWSC 851

Supreme Court

New South Wales

Medium Neutral Citation:

Black v Hillier [2025] NSWSC 851

Hearing dates:

29 July 2025

Date of orders:

1 August 2025

Decision date:

01 August 2025

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

1. The notice of motion to extend time filed by the plaintiff on 3 December 2024 is dismissed.

2. The plaintiff is to pay the defendant’s costs of the motion.

3. The parties have leave to request any further orders in respect of the proceedings, including the costs of the proceedings.

4. The court should be informed of any request for further orders within 21 days of these orders.

Catchwords:

LIMITATION OF ACTIONS — causes of action not maintainable — extension under s 60G(2) of the Limitation Act 1969 (NSW) — where the plaintiff sues for medical negligence alleged to have occurred in 1999-2000 — where proceedings commenced in 2021 — whether the plaintiff was aware of the connection between the personal injury and the defendant’s act or omission for the purpose of ss 60I(1)(a)(iii) and 60I(1)(b) of the Limitation Act — where the plaintiff denied sending the defendant a letter in 2007 referring to a solicitor and calling for an explanation of her treatment — whether the letter was written by the plaintiff

Legislation Cited:

Limitation Act1969 (NSW), ss 18A, 60G, 60I

Evidence Act1995 (NSW), ss 67, 68, 135, 136

Uniform Civil Procedure Rules 2005 (NSW), r 35.1

Cases Cited:

Doughty v Hillier [2024] NSWSC 1220

Vonhoff v Hillier [2024] NSWSC 1285

Category:

Principal judgment

Parties:

Wilma Daphne Black (Plaintiff)
Terence Hillier (Defendant)

Representation:

Counsel:
J Hillier (Plaintiff)
R Cheney SC (Defendant)
B Bradley (Defendant)

Solicitors:
Commins Hendriks Pty Ltd (Plaintiff)
Hicksons (Defendant)

File Number(s):

2021/217665

Publication restriction:

No

JUDGMENT

1. These proceedings commenced with the filing of a statement of claim on 30 July 2021. The plaintiff is claiming damages arising from treatment, including spinal surgery, she says was negligently performed by the defendant in 1999 and 2000. The defendant was an orthopaedic surgeon. He has since retired.

2. The plaintiff was an adult when the surgery was performed. She is now 77 years of age. Without more, the proceedings are obviously out of time. To this end, the plaintiff filed a notice of motion on 3 December 2024, seeking an extension of the limitation period pursuant to s 60G of the Limitation Act1969 (NSW) to 11 May 2022. This is the date when an amended statement of claim was filed.

3. In submissions, the plaintiff stated that the extension was sought to 30 July 2021, when the initial statement of claim was filed.

4. The application for an extension of time is opposed by the defendant.

5. Section 60G of the Limitation Act states:

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

6. The plaintiff’s application is supported by an affidavit of Ms Tonya Longmore dated 6 December 2024. Ms Longmore is a solicitor acting on behalf of the plaintiff.

7. There are two affidavits from the plaintiff dated 20 May 2024, and 27 March 2025, respectively.

8. There is also a notice issued pursuant to s 67 of the Evidence Act1995 (NSW). This is because the plaintiff is said to be unable “to give evidence at a contested hearing” due to her “anxiety and impaired cognitive state”. In addition, there is a medical certificate form the Geriatric Unit at Mercy Hospital in Albury stating that the plaintiff is currently an inpatient in the unit and is unable to attend court for the “foreseeable future”.

9. The defendant has responded with a notice under s 68 of the Evidence Act, objecting to the tender of the plaintiff’s evidence. In oral submissions the defendant highlighted two points of objection:

1. The execution of the plaintiff’s first affidavit was defective in form. The court book contains two identical affidavits from the plaintiff; the first signed by her but not witnessed and the second signed by a witness but not by the plaintiff. In the latter affidavit the confirmation of the plaintiff’s identity does not list any document, let alone any of the documents given as examples at the foot of the form.

2. In his report of 6 March 2025, Prof Gonski, a geriatrician, refers to mini-mental testing of the plaintiff in January 2024 (by another practitioner), and by himself on 2 February 2025. He also records a history of deteriorating cognition over 3 years, and he concludes that she “lacks capacity to give evidence at a contested hearing”.

10. With the above two factors present, and the absence of any evidence surrounding the making of the affidavit, the defendant submitted the plaintiff’s affidavits should be excluded.

11. I allowed the affidavits to be read. As to the defects in form, I gave leave for the affidavit to be read despite the irregularity, as permitted by r 35.1 of the Uniform Civil Procedure Rules 2005 (NSW).

12. In relation to Prof Gonski’s opinion, I thought the issue was more one of weight or reliability than admissibility, and so allowed the affidavits to be read but made it very clear that the reliability of, for example conversations said to have occurred many years ago, could be significantly in doubt.

13. In her affidavit Ms Longmore says that the plaintiff’s claim relates to treatment by the defendant “between 16 February 1999 and until about 31 January 2001 including facet joint injections and the surgery performed by the Defendant on 29 November 2000 …”

14. The defendant relies on his own affidavit dated 28 May 2025, and the affidavit of Ms Eun Sil Choi dated 28 April 2025. Ms Choi is a solicitor in the firm acting for the defendant. Both Ms Longmore and Ms Choi have attached substantial exhibits to their affidavits.

Background facts

15. The plaintiff was born in 1948. The defendant was an orthopaedic surgeon with rooms in Albury. He is now retired and is 81 years old. He first saw the plaintiff in Albury when she was 51 years of age.

16. The plaintiff has lived in Holbrook since 1952. When she was about 15, she injured her back when performing a pike dive at the local swimming pool. It later transpired that she had fractured three of her vertebrae. She wore a back brace for about 12 months. She thereafter continued to feel pain in her lower back, her left hip and down her left leg into her left foot. Nevertheless, she remained very active and able to manage the pain, until about 1996 when she began to rely on painkillers.

17. The plaintiff’s general practitioner referred her to the defendant. The first consultation was on 17 February 1999. Two days later the plaintiff underwent facet injections which gave her some short-term pain relief.

18. The plaintiff next saw the defendant on 23 February 1999 and then again on 12 April 2000. On 20 April 2000, she had an MRI scan and also a bone scan. On 2 May 2000, the plaintiff returned to see the defendant who sent her for a needle biopsy. The biopsy was performed at Albury Base Hospital on 6 June 2000.

19. The plaintiff next saw the defendant on 21 June 2000. She does not recall any discussion about the results of the biopsy. The defendant did prescribe sodium fluoride tablets and perhaps some painkillers.

20. On 17 July 2000, the plaintiff saw the defendant and told him that the tablets and the painkillers had not helped her back pain. On 28 August 2000, at another consultation with the defendant, he recommended a laminectomy and biopsy.

21. In simple terms, a laminectomy is a surgical procedure to remove a part of a vertebra and in turn relieve pressure on the spinal cord or a nerve. According to the plaintiff, the defendant said to her:

“I will undertake a simple surgery to remove the bone that is pushing on your nerve. It will eliminate the pain immediately and after six weeks of recovery you can go back to all your normal activities without any pain.”

22. The plaintiff says that the defendant gave her no warnings about the surgery, in particular, that it “might not help my pain or that it could make my pain worse.”

23. On 26 September 2000, the plaintiff saw the defendant. She went on to a waiting list for surgery as a public patient at the Albury Base Hospital. On 29 November 2000, the plaintiff was admitted to Albury Base Hospital where the defendant performed the laminectomy and also a biopsy.

24. There was a follow-up consultation with the defendant on 18 December 2000. The plaintiff was advised to “take it easy” which she did. The biopsy was not discussed. The plaintiff did feel much better for a short period but by the end of 2000 her pain had returned, and in particular, she began to fall. The plaintiff had not done so before the surgery. The falls were connected to weakness in her left leg. The pain in her back continued as well as in her left hip and buttock and it continues to radiate down her left leg.

25. The plaintiff saw the defendant on 29 January 2001. Also, in 2001 the plaintiff’s general practitioner referred her to a Dr White, an endocrinologist, practising at Concord Hospital in Sydney. The plaintiff was diagnosed with Paget’s disease. Paget’s disease is a condition in which the replacement of old bone tissue with new tissue is disrupted. It can be productive of pain.

26. According to the plaintiff, Dr White told her that “We do not think your Paget’s is what is causing your back pain.” I am not sure precisely when this conversation occurred, but it is consistent with a report from Prof Hooper to the plaintiff’s general practitioner dated 15 July 2001. In the report Prof Hooper states:

“I reviewed Mrs Black with Dr Chris White on the 3^rd of July regarding her Paget’s disease of L3. She has had no symptomatic benefit to the bisphosphonate therapy (Skelid) over the past three months. I suspect this is because her back pain is related to other causes than simply her Paget’s disease.”

27. The plaintiff says that after the surgery, in November 2001, she began to experience anxiety. The plaintiff attributes this to her not being relieved of her pain as the defendant had suggested. She was also worried by the loss of power in her left leg. The plaintiff has not however had any psychological treatment.

28. The plaintiff continues to have lower back pain as well as the extended pain. She still falls over. The plaintiff is limited in her domestic abilities, and she uses a scooter to travel locally. The plaintiff lives in a cottage alongside her daughter’s house, and she receives a good deal of assistance from her daughter and the latter’s family.

29. The plaintiff says that she had no familiarity with legal issues and had never consulted a solicitor before seeing her current solicitors in 2019. There is some unusual evidence about a letter that the plaintiff is asserted to have sent to the defendant in 2007. The letter is important so I will set it out in full:

“16 Wallace Street

Holbrook 2644

Dear Dr Hillier

I was a patient 9f (sic) yours about 4 year s ago –

I am seeking an explanationfrom you before seeing my Solicitor on my operation.

In November 2000 I had a Laminectomy done by you at the Albury Base Hospital. Several weeks later on my visit you asked me if my operation was a success and I told you that it wasn't and your abrupt reply was" Well it should of been.

Later on I had more .x rays and tests done and still you didn't tell me why it wasn't a success. A black spot showed up and I had a Biopsy done and still you didn't tell me or get the proper results from that. As my Husband suffers from Pagets Disease I went to his Professor in Sydney .

Jle_askeJ1 m =1o w.h:yJhad.the-Gp€rati0n on that-Vertebra':'I- tofoHnm-1—(sic) didn't know and he asked me if it worked and I told him no. His reply was." I am not surprised as the operation was done in the wrong spot."

Later another Specialist came in and had a look at my scan and asked me the exact same questions. My answer was the same and so was his. Since then I have asked two other Medical Professionals and got the same reply.

I am now waiting for an explanation from you.

Yours Sincerely.

Wilma Black”

30. The letter does not bear a handwritten signature. I have the impression that the ‘confused’ portions of the letter are the product of some form of digitisation (like scanning) rather than being in the original.

31. The plaintiff denies writing the letter. She says that in 2007 she did not have the necessary typing skills and at that time, all of her letters were handwritten. But she does accept she received a reply from the defendant dated 5 September 2007.

32. The plaintiff’s letter is important because:

1. it refers to a possible contact with a solicitor;

2. it canvasses the possibility of the operation having been done “in the wrong spot”; and

3. it requires “an explanation” from the defendant.

33. In his reply the doctor says that the “surgery was carried out without any complications”, and he contests “the casual comment from the specialists that have advised you in that I would be surprised that there was any indication that it was done in the wrong spot …” The defendant also contests his reported words, and he generally rejects all of the allegations made in the letter.

34. I will return to the letter below.

35. Coming back to the chronology, the plaintiff says that she first contacted her solicitors, Commins Hendricks, in August 2019. This followed her daughter, Tanya, having heard “something about back surgery claims on the radio …” It is common ground that there have been other claims against the same defendant. At least two have been the subject of applications to extend the limitation period (Doughty v Hillier [2024] NSWSC 1220 and Vonhoff v Hillier [2024] NSWSC 1285).

36. Other than exhibiting a number of medical reports and records, the affidavit of Ms Longmore generally concentrates on events that have occurred since the filing of the statement of claim. As far as the current application is concerned the focus must be on events prior to the pleadings commencing as opposed to afterwards.

37. In his affidavit of 28 May 2025, the defendant annexes an evidentiary statement he made on 5 August 2024. He sets out the documents he has and the documents he is missing. The latter includes a pamphlet that he gave to patients in 2000. A 2004 version of the pamphlet is annexed to the evidentiary statement. It is a detailed description of lumbar spine surgery. It contains a section headed “Possible Complications of Lumbar Laminectomy and Microdiscectomy.” The risks include a wide range of possibilities, ending in death, albeit “rare”. Any person taking the time to read this complicated document would be left in no doubt that practically anything was possible. The defendant stated that the 2004 pamphlet is similar to the 2000 version, but he would have made notes on the pamphlet he used when discussing the surgery with the patient.

38. Dr Hillier also annexes the consent form signed by the plaintiff prior to surgery. The form acknowledges that, inter alia, there are risks to the surgery and it “may not give the expected result even though the procedure/treatment is carried out with due professional care”.

39. I acknowledge that there are parts of the documentary history that are not available to the defendant. However, he does have some recollection of the case, and he has been able to put together a fairly comprehensive record of his treatment of the plaintiff. This includes an operation report prepared by his assistant. It also includes a report of the taking of biopsy samples during the operation.

Legal requirements

40. The applicable legal regime is that which applies to alleged acts of negligence that occurred before 6 December 2002. After that date, the Limitation Act introduced different requirements.

41. The limitation period applicable to this plaintiff’s allegations is three years, pursuant to s 18A.

42. I have set out s 60G above. An extension of time may be granted if it is “just and reasonable to do so”. Before such an order can be made it is necessary for the court to be satisfied of the matters set out in s 60I. This section states:

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(a) the plaintiff:

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.

43. I was informed that in respect of subsection (1)(a) the only matter in dispute was the third factor, namely whether or not the plaintiff was “unaware of the connection between the personal injury and the defendant’s act or omission.”

44. It was common ground that if the plaintiff satisfied the court of the matters set out in s 60I, the next step would be to consider whether, as required by s 60G, it was just and reasonable to extend the limitation period.

The 2007 letter to the defendant

45. Objection was taken by the plaintiff to all references to the letter in the defendant’s affidavit. The objections were based on the letter not having been proved to be authentic. There had been no Notice to Admit Authenticity served by the defendant.

46. After I indicated that I would allow the letter into evidence, the plaintiff sought leave to cross-examine the defendant about the letter. This was despite, as recently as the day before the hearing, the plaintiff informing the defendant that he was no longer required for cross-examination.

47. The defendant, who lives in Adelaide, became available by telephone and was able to be cross-examined. In relation to the letter, he said that it had been handed to him by a member of staff and that he had then dictated a reply. He had not made any notes. The letter would then have formed part of the plaintiff’s records which were digitised in 2011 when the defendant moved practice rooms. The originals were destroyed at the same time.

48. I have observed above that the letter seems to be a scanned document. The defendant in his affidavit, at [14], refers to his staff scanning and making digital copies of documents. There is no further explanation in the defendant’s evidentiary statement dated 5 August 2024. His reference to the letter at [71] of his evidentiary statement is obviously to the corrupted version annexed to the affidavit.

49. The sender’s address is different to the plaintiff’s address as stated in her affidavit. However, the plaintiff received the reply written to the address on the letter. The defendant’s reply refers to a letter recently received by him.

50. The letter is obviously a business record and admissible as such. I accept that is a different issue to whether it was written by the plaintiff.

51. As to the effect of the defendant’s letter upon her, the plaintiff states in her affidavit:

“In about September 2007 Dr Hillier sent a letter to me saying to the effect that there was nothing wrong with the surgery he did. I recall reading this letter at the time and I have read it since. At the time I received it I was satisfied with what was contained in Dr Hillier’s letter and thought there was nothing wrong with the surgery Dr Hillier did. I did not seek any legal advice after receiving Dr Hillier’s letter in 2007. I didn’t think given Dr Hillier had said in his letter there was nothing wrong that I needed to seek any legal advice.

In 2007 I did not have a solicitor and had not sought any legal advice about Dr Hillier.”

52. The defendant’s reply has some anomalies of its own:

1. It has its own grammatical or typing errors. For example, in the very first sentence it states “I have refer:-red to my notes.” As with the plaintiff’s letter, this may well be a product of scanning.

2. The response possibly treats the allegation about the “wrong spot” as referring to the position of the biopsy. The letter makes it clear that the allegation is that the “operation” was done in the wrong spot. I take this to mean the spinal level at which the laminectomy was performed. In fairness to the defendant, later in the letter he does refer to the L3 level as having been identified in the MRI scanning as “having the abnormal lesion”.

53. In relation to the “wrong spot” my interpretation is confirmed in one of the defendant’s medical reports, from Dr Susan Arnold, dated 17 April 2023. At p 12 of the report, Dr Arnold records:

“Mrs Black stated that Dr White told her that Dr Hillier had operated on the wrong vertebrae.”

54. I note that Dr Arnold’s report, on the same page, also confirms the plaintiff’s history that Dr White told her that her pain had been caused by surgery and not by Paget’s disease.

55. The plaintiff says in her affidavit, at [88], that the letter looks like it was typed on a computer and that she is not “computer literate”. This is perhaps inconsistent with her statement at [22], that:

“I have used a computer in the past but I do not own one now. I have limited experience with computers.”

56. Also inconsistent with the plaintiff’s affidavit, at [88], is the report from a psychologist retained by the defendant (Mr John Raue), dated 14 March 2023, which states:

“Ms Black said she had no interest in computers and does not have a computer currently. However, she uses her Smartphone to look up information and to send messages. She had had a computer when she lived in her previous house. She had been able to write letters and look up information on craft projects online at that stage but repeated that she has no real interest in continuing online activities, preferring to be physically active.”

57. I simply cannot see any explanation for the plaintiff’s letter other than that she wrote it. There is no evidence of a forgery and there is no evidence that would suggest some other person wrote the letter. It is inconceivable that the defendant would have manufactured it in order to give him the opportunity to write in reply. There is also no evidence from any family member who might, perhaps, have written the letter, or been in a position to say that the plaintiff was incapable of having written the letter.

58. Although, as I have pointed out, there are some mistakes in the defendant’s letter, it is obviously a response to the letter asserted to be from the plaintiff.

59. Perhaps the most likely explanation is that the plaintiff has forgotten she wrote the letter. I have already referred to the report of Prof Gonski and the history of the plaintiff’s forgetfulness over the past three years. His opinion is that the plaintiff currently lacks the cognitive capacity to give evidence.

60. The plaintiff also belatedly sought to have the document excluded or limited in its use pursuant to ss 135 and 136 respectively of the Evidence Act.

61. The letter is certainly prejudicial to the plaintiff but, having concluded that it was written by the plaintiff, I do not think it is unfairly prejudicial. I therefore did not exclude or limit its use.

Effect of the letter and generally

62. Accepting, as I think I must, that the plaintiff wrote the letter it then becomes very difficult for her to overcome the provisions of s 60I. I have said above that the only issue arising from s 60I(1)(a) was whether the plaintiff was aware of the connection between her injury and the defendant’s act or omission.

63. The very first paragraph of the letter is:

“I was a patient 9f yours about 4 year s ago –

I am seeking an explanationfrom you before seeing my Solicitor on my operation.”

64. In my view this opening sentence of the letter is an overwhelming indication that the plaintiff was aware of the possible connection between her injury and the defendant’s treatment of her. She is specifically giving the defendant an opportunity to exculpate himself before seeing a solicitor. The fact that the plaintiff seems to have accepted the explanation, as she states at [89] of her affidavit, does not assist her because her knowledge of the possible connection remains.

65. The letter refers back to the Paget’s disease specialist (presumably Dr White) who the plaintiff had seen in 2002. The defendant submitted that if the plaintiff’s making the necessary connection occurred because of seeing Dr White then it had already been in place for some five years before the letter was sent to the defendant. The plaintiff pointed out that Dr White was not an orthopaedic surgeon and therefore his opinion could not found the making of the necessary connection to the defendant’s conduct.

66. While I do not agree that the different specialty held by Dr White could not lead to a conclusion sufficient to make the necessary connection, I also do not necessarily agree with the defendant’s submission because it relies on an assumption that the plaintiff made the connection immediately upon talking to Dr White and not occurring to her over time. I do not think I can go beyond a conclusion that the connection was established at the time the letter was sent in 2007 to the defendant.

67. The plaintiff, in case I found that the letter was evidence of a connection between the personal injury and the defendant’s conduct, submitted that the defendant’s letter in reply “essentially extinguishes any connection”. This was because the defendant’s letter assured the plaintiff that he had treated her appropriately and, as she states in her affidavit, she accepted the response.

68. Learned counsel for the plaintiff accepted that the possibility of a connection being extinguished was a novel submission for which she could find no authority. I gave counsel leave to provide me with an authority, but none was forthcoming.

69. I formally reject the proposition that a connection once established can be ‘undone’ so as to postpone the three-year period referred to in s 60I(1)(b).

70. Having decided the connection issue, it is necessary to move on to s 60I(1)(b) to see if the application for leave to extend time was made “within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii)”. As the letter was written in 2007 the three years would have ended by 2011. The proceedings were not commenced until 2021 and the application for an extension of time was not made until 3 December 2024.

71. Returning to the introductory words of s 60I(1), I am unable to make an order under s 60G. The plaintiff’s application must therefore fail.

72. In case I am wrong about the connection issue, I think the plaintiff should fail for other reasons. These other reasons relate to whether or not it would be “just and reasonable” to extend the limitation period.

73. The first of these reasons concerns the paucity of evidence concerning the extension of the limitation period. In written submissions the plaintiff’s counsel stated, at [25]:

“The Plaintiff contends that the first date she had actual knowledge that the injury which was occasioned by the surgery was caused by the fault of the Defendant, was on or about 15 April 2021, which was when she first became aware of the contents of Dr Hopcroft’s first report.”

74. The problem is that the plaintiff does not give this evidence in her affidavit, nor is it mentioned in Ms Longmore’s affidavit. The closest piece of ‘evidence’ is a reply to a request for particulars, dated 26 November 2021, in which it is said that the plaintiff’s action became discoverable “Upon receipt of report of Dr Allan Hopcroft dated 15 April 2021, on or about 29 April 2021”. I would have expected the plaintiff to have given this evidence or at least a solicitor to have stated that the report was provided to the plaintiff and she had a reaction to it.

75. The paucity of evidence on the limitation question is compounded by the s 67 notice issued by the plaintiff which seems to omit paras 86, 87 and 90 from her affidavit. This only leaves the two paragraphs about the letter (88 and 89) in evidence.

76. The second reason why I would not have exercised the discretion in favour of the plaintiff concerns prejudice, both actual and presumptive. The defendant is now 81 years of age so that he is likely to be a year or two older when the matter comes on for hearing. While there are a number of records still in existence there are also many that are missing, such as general practitioner notes, pre-operative imaging and records from Dr Nicholls who was later consulted by the plaintiff. I have already mentioned the absence of an explanatory pamphlet that the defendant used in 2000. However, as noted above, he does say at [56] of his evidentiary statement that the 2004 pamphlet was available and was little different.

77. The plaintiff submitted that the defendant had been able to produce a detailed evidentiary statement, and he does not complain about the absence of general practitioner records and notes from Dr Nicholls. He would also be able to rely on his standard practice. There is some force in this submission, but there nevertheless remains a lot of material that no longer exists which might have been of assistance to the defendant in meeting the case against him.

78. In relation to presumptive prejudice, I was referred to these paragraphs in Doughty:

“120. The defendant accepts that he cannot point to any particular prejudice but submits that the presumptive prejudice is significant prejudice given the length of the delay. The defendant further submits that his ability to point to actual prejudice is itself compromised because, after all this time, it is impossible for the defendant to know what he does not know (see Brisbane South Regional Health Authority v Taylor at 551 (McHugh J)). Had the case been brought shortly after of the operations, in the ordinary course the defendant would have been able to discover everything relevant to his defence.

121. I consider that the presumptive prejudice is particularly material in this case. At trial the Court will have to make a finding about what hypothetically an orthopaedic surgeon acting with reasonable care would have advised the plaintiff based on her condition. The Court will also have to make a finding about what, hypothetically, the plaintiff would have done had she been given that advice. The question will have to be addressed for each of the operations. One of the repeated refrains in the plaintiff’s cross examination was her rhetorical question: '[W]hat was I to do?.' The plaintiff was in a difficult situation at the time each operation was recommended. The key questions will have to be decided having regard to the objective facts which pertained at the relevant time. The plaintiff will not be permitted merely to assert that she would not have had each operation. A challenging task at the best of times, it will be very difficult for the Court to undertake these findings of fact with any real confidence so long after the event.”

79. The facts in Doughty, although having the same defendant, are different, but the general concept of presumptive prejudice remains the same. Even though there was only one operation in the present case, unlike Doughty where there were several, the defendant will still be faced with the same speculative considerations about what might or might not have happened.

80. It is also relevant that the plaintiff’s case is not straightforward. Had the medical evidence been ‘one way’ to the effect that the defendant had been negligent, that would have been a factor in the just and reasonable equation. However, there is a difference of expert medical opinion. The many medical reports served by the defendant (attached to the affidavit of Ms Choi) provide an ‘opposite’ opinion to the plaintiff’s reports.

81. I have given consideration to whether or not “just and reasonable” takes into account the plaintiff’s current circumstances. She is now a person who will not be able to give evidence, has cognitive deficiencies, and is residing in, or at least currently admitted to, a Geriatric Unit at Mercy Hospital in Albury. One wonders about her interest in pursuing this legislation. I will not however take this point into consideration because if she did have a viable claim, it would probably be in the interests of justice for it to be pursued.

82. The result of the above is that the application to extend time must be dismissed. The defendant’s submissions do not request that the substantive proceedings be dismissed although that is a logical next step.

83. In relation to costs, the normal order would be that the plaintiff pay the defendant’s costs of the application. A matter that does concern me is that it appears from Ms Longmore’s affidavit that the matter was prepared by both sides with an intent of coming to hearing, possibly in 2024. There were many direction hearings in which timetables were set, and the matter progressed, including via mediation, towards a hearing date. Ms Longmore states in her affidavit, at [57]:

“Prior to the next directions on 9 August 2024 the Defendant changed his position, and required the Plaintiff to make an application to extend the limitation period pursuant to the provisions of the Limitation Act 1969 and for that to be determined prior to any final hearing and that the Defendant would not consent to the matter taking a final hearing date.”

84. On 9 August 2024, Cavanagh J made an order directing the plaintiff to file an application to extend the limitation period by 8 November 2024. The application does not seem to have been filed until 3 December 2024.

85. The defence to the amended statement of claim filed on 24 November 2022 raises the Limitation Act to the effect that the plaintiff’s claim is statute barred.

86. It is unfortunate that the application to extend the limitation period was not brought at the time of, or closely following, the filing of the statement of claim on 30 July 2021 or the filing of the defence to the amended statement of claim. A great deal of costs and effort would have been saved.

87. I think the best way to approach the wasted costs issue is to make a costs order on the current application in favour of the defendant but to give the parties leave to request any further orders arising from my decision, which might include the disposal of the primary proceedings, and the costs attached to them.

Orders

88. I make the following orders:

1. The notice of motion to extend time filed by the plaintiff on 3 December 2024 is dismissed.

2. The plaintiff is to pay the defendant’s costs of the motion.

3. The parties have leave to request any further orders in respect of the proceedings, including the costs of the proceedings.

4. The court should be informed of any request for further orders within 21 days of these orders.

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Decision last updated: 01 August 2025