Crerar v Parkes
[2005] TASSC 63
•7 July 2005
[2005] TASSC 63
CITATION: Crerar v Parkes [2005] TASSC 63
PARTIES: CRERAR, Allison
v
PARKES, Scott
VANDERSLINK, Gerald
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 83/2003
DELIVERED ON: 7 July 2005
DELIVERED AT: Launceston
HEARING DATE: 12, 13 April 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Limitation of Actions – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – Evidence to establish right of action.
Aust Dig Limitations of Actions [49]
REPRESENTATION:
Counsel:
Plaintiff: D J Porter QC
First and Third Defendants: P Turner
Second Defendant: K B Procter SC
Solicitors:
Plaintiff: Worsley Darcey & Associates
First and Third Defendants: Director of Public Prosecutions
Second Defendant: Murdoch Clarke
Judgment Number: [2005] TASSC 63
Number of paragraphs: 39
Serial No 63/2005
File No 83/2003
ALLISON CRERAR v SCOTT PARKES, GERALD VANDERSLINK
and STATE OF TASMANIA
REASONS FOR JUDGMENT CRAWFORD J
7 July 2005
On 3 March 2003 the plaintiff filed an application for an order extending the time in which she may commence an action against the defendants. At the same time she filed a writ by which she commenced the action. The endorsement of claim stated that she was claiming damages for personal injuries suffered as a consequence of the negligence, breach of agreement and breach of statutory duty of the defendants between 3 March 1997 and October 2000.
The first defendant ("Dr Parker") was a consultant physician who was treating the plaintiff. The second defendant ("Dr Vanderslink") was her general practitioner. The third defendant had the care, control and management of the Launceston General Hospital and employed Dr Parkes at the hospital. He treated the plaintiff there and also at his private rooms.
I have no reason not to accept the basic truthfulness and accuracy of the witnesses whose affidavits were read or who gave oral evidence.
The plaintiff's case may be summarised as follows. In about 1986, when she was aged about 35 years, she began experiencing periods of abdominal pain and nausea and required periods of time off work. Within a couple of months she became acutely ill with severe abdominal pains and nausea. Over the years until October 2000, her symptoms continued. A number of doctors treated her but none of them correctly diagnosed the cause of her suffering until October 2000. She was initially diagnosed as having a virus. Appendicitis was suspected and her appendix was removed, along with her gall bladder. She also underwent a hysterectomy. She managed to live a relatively normal life despite ongoing symptoms under 1991, in which year Dr Vanderslink became her general medical practitioner. Pain had been controlled with Panadeine Forte and other medications. Between 1991 and 2000 her condition worsened and she was admitted to the Launceston General Hospital and St Lukes Hospital many times because of her symptoms, probably on well in excess of 30 different occasions. Commonly, her admissions came about because of severe abdominal pain, vomiting, diarrhoea, and weight loss, along with light-headedness, balance problems and extreme fatigue.
In about 1992 an operative procedure to her bowel was performed. In 1993 she began to be treated by a consultant gastroenterologist. She underwent many tests. Intravenous fluids provided some relief. In 1994 she was placed on ever increasing levels of narcotic medications for pain relief and she was self-administering intramuscular pethidine. She became dependent on narcotics. In 1995 she was told that it was unlikely that she would ever be fit to work again. Surgical procedures were carried out. In 1996 she was advised that she should avoid being in the sun. She had developed very dark skin. One of her admissions to hospital at about that time was to monitor her withdrawal from narcotics, on which she had become dependent again. She consulted a gastroenterologist in Sydney, to be told that there was little that could be done to assist her further.
In 1996 she was given to understand that her condition had been diagnosed as a gastrointestinal neuropathy or myopathy. From the time Dr Parkes began to treat her in 1997, it was in the nature of palliative care, and not diagnostic treatment, that she was receiving until October 2000. In 1996 and 1997 she was regularly admitted to hospital, she believed principally for intravenous administration of fluids to rehydrate her and for morphine injections for pain relief. Her local consultant gastroenterologist also told her that there was nothing further he could do for her and that all possible investigations had been done. Her visits to him began to decrease.
In about 1997 Dr Parkes commenced to treat her. It was rare that two weeks passed without her seeing him. He had rooms in the same premises used by Dr Vanderslink. She was told that he was a consultant physician and intensive care specialist at the Launceston General Hospital who would assist with her ongoing medical management. He suggested feeding and fluids by intravenous access through ports inserted in the main arterial vein. Her first infusaport was inserted in about October 1997. She believes that after the operation she developed complications with septicaemia. Subsequently she underwent various procedures involving the insertion and removal of three further infusaports, long-line catheters and Hickman's catheters. When undergoing one of the procedures she suffered from some problem with her lung and had several episodes of distress, including episodes when she became unable to function or communicate, lost bladder control and could not move.
From October 1997 to September 1999 she suffered several infections as a result of various procedures. She continued, as she had always done, to experience pain, vomiting, diarrhoea and difficulties with her balance. In about October 1999 her despair was considerable. She was given to understand that she might die before Christmas. Because she felt so ill and was in so much pain she resolved that she did not want to face living. She was counselled by Dr Vanderslink about the process of dying and Dr Parkes provided advice about pain relief. Medications were administered with the use of a syringe driver.
By October 2000 the plaintiff's weight had dropped to 45 kilograms. She was once again admitted to the Launceston General Hospital, this time in relation to a repetition of catheter-related infection. On 11 October 2000 a medical registrar, Dr Kannan, carried out what is known as a synacthen test. It had not been done before with her. It is a relatively simple although not well-known procedure. A substance called synacthen is injected and the patient's cortisone levels are measured from blood samples taken at intervals of about 30 and 60 minutes and compared with a sample taken before the injection. As a result of the test the condition from which she was mainly suffering was diagnosed as Addison's disease. Dr Parkes told her of the diagnosis on 13 October 2000. She was told that treatment might provide her with a little more energy but that it would not make much difference. However, when treatment for the disease commenced she enjoyed a dramatic improvement in her condition. She stopped vomiting and suffering diarrhoea within a few days, although her narcotic dependency took some months to control. Over a period of about three months she put on about 20 kilograms in weight. She is now able to eat without associated symptomatology. She returned to work in September 2004, having stopped because of her ill health in about 1994.
I have no doubt that much of the detail of the applicant's suffering and treatment, and of the identity of the many and varied doctors and medical health specialists who treated her, was not revealed by the limited evidence presented to me. I have omitted much of what was contained in the evidence.
Understandably, the applicant reflected on why it was that all of the many doctors who had treated her for her illness since about 1986, had failed to diagnose the cause of her suffering until October 2000. Evidence went some of the way to explain why. Addison's disease is a disease of the adrenal gland, resulting in insufficient production of cortisone. It is a rare disease and presentations focusing largely on the gastrointestinal tract with severe pain and diarrhoea are uncommon. Its characteristic changes in sodium and potassium levels were never evident and indeed, her potassium was often low, which is the opposite of what would be expected if she had Addison's disease. The severe level of her abdominal pain was unusual in a patient with the disease and led doctors to think of other diagnoses. There were a number of other signs which did not suggest the disease and suggested something else. In summary, and in the words of Associate Professor Lording in his report dated 22 April 2002, "the nature of the symptomatology is clearly unusual in that the major symptom of abdominal pain was obviously predominant and pointers, which may have led to a consideration of Addison's disease earlier on, appeared not to be present". Testing for the disease is not part of routine testing protocols and is normally only done when a doctor considers that Addison's disease may be the cause of the problem.
Within a day or two of the diagnosis being made in October 2000, the applicant was encouraged to think by her sister and her sister's husband, who was a doctor, that some medical practitioner had been at fault for not making an earlier correct diagnosis. She described herself as being gob-smacked and of being seriously emotionally upset. She began to consider that she may have been entitled to compensation as a result of an unknown doctor's fault. What had happened to her had been financially devastating. Possibly in December 2000, her sister and her sister's husband recommended that she consult a mainland lawyer and in particular, Clair Whitehead of Richmond, Victoria. She thought that she might not be treated fairly if she made her claim in Tasmania and decided to consult Clair Whitehead.
Although at that time she had experienced a dramatic improvement in her condition as a result of appropriate treatment for Addison's disease, nevertheless she remained severely ill and required intensive treatment for a long time. She had staphylococcal infection and septicaemia until December 2000. She remained heavily dependent on narcotics into 2001. She had further periods of hospitalisation in late 2000, 2001 and 2002.
On about 19 January 2001 she telephoned the office of Clair Whitehead. It was her belief that she spoke to a lawyer named Jeanette Ley and that she spoke to her more than once. Her evidence of their conversations lacked detail. She said that her initial concerns were the costs of a lawyer and whether she might have had a case. Although she thought that she probably did have a case, she first needed legal advice to that effect. She was advised that she should see Mariette Read, who was a solicitor employed as a consultant by Clair Whitehead. Her recollection is that she was told that Ms Read was a medical/legal specialist. Although denying that she was a specialist, Ms Read's evidence was that she had experience in the field of medical negligence in Victoria. Ms Read was not available at the time the applicant first contacted the office in January 2001. She first spoke to Ms Read by telephone in March 2001. Their communications were by telephone or correspondence until their first meeting in person on 11 July 2001. The applicant's evidence was that the likely financial cost of what she was doing was a huge factor that she and her husband needed to consider. She was requested by Ms Read to prepare an extensive chronology of the events that had happened and forward it to Ms Read. She had told Ms Read that she believed that she had suffered from Addison's disease for many years and that her medical advisors had failed to diagnose it despite many hospitalisations and extensive treatment for a number of related conditions.
The applicant said that her preparation of a note and chronology for Ms Read presented a huge workload and because she was traumatised by it all, she was not able to prepare them for a significant time. She had kept a diary since 1993 and I presume that it assisted her. In any event, on or about 27 April 2001 Ms Read received from the applicant what Ms Read described as an extensive chronology of events.
On 15 May 2001 Clair Whitehead accepted a retainer to act for the applicant and to investigate whether she should make a claim for damages for negligence against one or more of her medical providers. It is likely that a letter was sent to the applicant advising her of that. She signed and returned a costs agreement, which included with it information that it was estimated that she would be charged for "legal fees for the preparatory stage" within the range of $2,000 to $3,000. She and her husband had to arrange a loan for the fees, which took them "a couple of months roughly", she said, before they were able to send a cheque for $5,000 to Clair Whitehead on 17 July 2001. It is unclear whether there were any communications between them from 27 April until 11 July 2001, other than those to which I have referred.
In the meantime, information that appeared to have significance was received by the applicant. In about May or June 2001 she was informed that her general practitioner, Dr Vanderslink, was moving from Launceston to Norfolk Island. She had been seeing him once if not twice a week from 1997. She decided to consult another practitioner, Dr Wilson, and Dr Vanderslink's practice manager gave her the files relating to her treatment to take to Dr Wilson. Before passing them on she looked through them, coming upon a copy, initialled by Dr Vanderslink, I infer to indicate that he had read it, of a discharge summary of the Launceston General Hospital dated 30 April 1998. It related to her admission from 16 to 30 April, principally for an infected Hickman's catheter. Dr Parkes was recorded as the treating specialist and Dr Vanderslink as her general practitioner. Dr Parkes arranged for her admission on that occasion. She saw him at the Holman Clinic, which was attached to the Launceston General Hospital, on 15 April, with a raised temperature. He arranged for her to have antibiotics intravenously administered at the clinic first thing on the morning of 16 April and he admitted her to the hospital later that day. During her admission she spent a short period in intensive care and was very ill. Dr Parkes managed her care and she saw and spoke with him nearly every day. She recalls that he was monitoring her progress closely because if the Hickman's catheter was removed, the option for the delivery to her of total parenteral nutrition (TPN) would be limited. Under the printed heading on the discharge summary of "FOLLOW UP DETAILS (include instructions to GP)" was written:
"Recommend short synthacten [sic] test in Holman clinic.
For TPN Mon Wed Fri.
IV Abx daily for 2/52 in Holman clinic."
It was the evidence of the applicant that at no time during that hospital admission did Dr Parkes, or anybody else, discuss with her anything in relation to synacthen testing. She attended the Holman Clinic for at least two or three days and, possibly longer, after the discharge. A synacthen test was not performed at that time. She saw Dr Vanderslink at his rooms and Dr Parkes at the Holman Clinic on many separate occasions after discharge and at no time did they discuss with her the fact that a synacthen test had been recommended at the time of discharge, what the test was, how it was administered or why it may have been indicated. It is her case that if she had been made aware that there was available a test that could either assist in the diagnosis of her condition or in identifying another beneficial treatment she would certainly have pursued it.
She had an appointment with Professor Stockigt in Melbourne on 10 July 2001. He was an endocrinologist to whom she had been referred by her general practitioner at the suggestion of Ms Read. She took advantage of the appointment to see Ms Read on 11 July. It was their first face to face meeting. She gave Ms Read the file she had obtained from Dr Vanderslink's practice manager. It was extensive, containing about 2000 pages. According to Ms Read, the applicant drew her attention to the recommendation for a synacthen test in the Launceston General Hospital's discharge summary of 30 April 1998. Ms Read emphasised in her evidence that the content of the discharge summary was but one of several issues of concern to which the applicant had "honed in" and to which she drew her attention. She said that "nobody understood the relevance of it at the time". It was the applicant's evidence that she thought that anything in the file relating to adrenal insufficiency was significant. References to it went back as far as 1994. Other issues included some concerning electrolytes, Ms Read said, and notes in a general practitioner's report. Another related to skin pigmentation.
Presumably at the instigation of Ms Read, the applicant applied under freedom of information legislation for further medical documentation relating to her various hospitalisations at the Launceston General Hospital, including the Holman Clinic. The documents were supplied in September 2001 to Ms Read, who also obtained a large number of Launceston Pathology laboratory results for the period between 14 December 1993 and 4 July 2001 at the suggestion of Professor Stockigt. She said that the sheer volume of material, which amounted to at least 3000 pages, and the number of medical providers involved, made it an arduous and time consuming task to obtain necessary expert opinions. The opinion of Professor Stockigt was sought. He was given access to all the material that was then available. He saw the plaintiff again on 26 September, 2001. He reported to her general practitioner on 1 November 2001 and on one other date. He expressed the view that the plaintiff had partial, rather than total, adrenal insufficiency and that it would be difficult to sustain an argument that it was the sole or predominant cause of her long illness. That report disagreed to some extent with one provided by another consultant endocrinologist, Dr Kamp, to Dr Vanderslink, dated 30 January 2001, to the effect that adrenal insufficiency may well have been the major aspect of the plaintiff's chronic illness. Copies of Professor Stockigt's report were made available to Ms Read.
It was the plaintiff's evidence that Professor Stockigt did not want to be involved for medical legal purposes. She accepted advice from Ms Read that they should engage the services of another specialist endocrinologist, Associate Professor Lording. That decision was made in about late January or early February 2002. All of the available material was provided to him and his report to Clair Whitehead was dated 22 April 2002. Although he thought it impossible to say with certainty that the plaintiff had suffered from Addison's disease throughout the entire period of her illnesses since the mid-1980's, he thought it was likely. His reasons were based on the details of her health history from that time and her positive response to treatment for the disease. He noted that the synacthen test performed in October 2000 had revealed partial adrenal insufficiency and not complete insufficiency. He considered, in retrospect, that the symptoms suffered by the plaintiff since the mid-1980's were probably due, at least in part, to Addison's disease. Once that disease was suspected, as it appears to have been in April 1998, the recommended synacthen test should have been performed then, in his opinion.
Ms Read's evidence was that she received the report of Associate Professor Lording in May 2002. She said that prior to her perusal of the report, the volume and complexity of the medical material did not permit her as a lawyer to draw a conclusion as to whether the plaintiff might have had a case against any of her treating doctors. Following receipt of the report, she decided that the wisest course for the plaintiff to take was to seek counsel's advice as to the strength of any case she may have had available to her and if necessary, to have counsel draft a statement of claim. The plaintiff accepted Ms Read's recommendation and gave instructions accordingly. Cross-examination of Ms Read raised her reasons for not commencing proceedings at that time but instead seeking counsel's opinion. She said that issuing a writ had costs consequences, an issue which she discussed with the plaintiff and it was resolved by the plaintiff accepting her recommendation to obtain counsel's opinion. She said that it was not a case of the plaintiff making an advertent decision to await counsel's opinion before proceedings were instituted but of her accepting Ms Read's advice to seek that opinion.
Counsel was briefed to advise in August 2002. It is not clear why there was a period of three months between the receipt of the report of Associate Professor Lording and the delivery of the brief, but it may be explained by the fact that the plaintiff was extremely ill in May 2002. She said that she had a very significant health issue and was in the Launceston General Hospital for four or five weeks, ending up in a wheelchair and unable to move or feed herself. She was too unwell to deal with the issues at that time. She thought that it took her three or four months to recover.
Advice from the counsel who was briefed was not received and in October 2002 the brief was returned at Ms Read's request after she ascertained that counsel had done nothing. Ms Read said that in October and November 2002, she sought a report from another endocrinologist, I infer because she would have felt more confident about the chances of a claim succeeding if a second specialist's opinion supported it. However, no response was received from the endocrinologist because he went overseas. She accepted in cross-examination that despite the time that had passed since she was first instructed by the plaintiff, she had only obtained one expert medical opinion of a formal nature. She added that it was not for want of effort on her part.
In December 2002 Ms Read discussed the matter generally with Mr Porter QC of the Tasmanian Bar. She prepared and sent to the plaintiff an updated memorandum for her approval. After what she referred to as the summer break, she forwarded the brief to Mr Porter to advise in early February 2003. On 28 February Mr Porter pointed out that there was a limitation problem. On receipt of his advice, Ms Read immediately instructed Tasmanian solicitors, Abetz Curtis & Worsley, to act as her firm's agents to commence an action in this Court, which they did on 3 March 2003. The Limitation Act 1974, s5(1), required that an action for damages in respect of personal injuries for negligence or breach of duty be commenced within three years of the accrual of the cause of action. By subs(3), a judge was given the power, if the judge thought in all the circumstances of the case it was just and reasonable so to do, to extend the period for up to another three years. The writ was endorsed with a claim for personal injuries as a consequence of the negligence and breach of statutory duty of the defendants between 3 March 1997, six years prior to the commencement of the action, and October 2000, when the diagnosis of Addison's disease was made. As well as filing the writ, Abetz Curtis & Worsley also filed on 3 March 2003 the application I am determining by which the plaintiff seeks an extension of time in which to commence the action.
I accept the plaintiff's evidence to the effect that she did not understand, at any relevant time, what was involved in making a claim for damages and commencing an action for damages. Asked what she thought when she first contacted the office of Clair Whitehead in January 2001, she said she thought she had started the claim and that what she was doing was setting in motion something like an insurance claim. Asked whether she believed at that time that she had started a process which would lead to the making of a compensation claim, rather than that she had actually made a claim, she said that she did not think she was aware at the time of the difference. She simply did not know what was involved in making a claim other than instructing a legal practitioner. I accept that. It is understandable that a person without legal training or experience would not know of such matters. Asked whether she had known that to make a claim against others she would communicate that claim to them, her answer was that she was not sure that she was aware of that either. Her evidence satisfies me that once she had instructed Clair Whitehead to act for her, she trusted the solicitors to do whatever was necessary in her interests because she had little idea of what had to be done.
It was the evidence of the plaintiff that the first she knew that there was a time limit that applied to her claim was in March 2003, when it was explained to her by Mr Stuart Worsley, of Abetz Curtis & Worsley, that the time limit for bringing her action had expired and there was a need to make an application to a court to extend the time. Even then, she did not fully understand what she had been told in practical terms. She was cross-examined about her information and knowledge of time limits, during which it was put to her that it must have occurred to her at an earlier point in time that if she wanted to take court proceedings against someone there must have been a time limit associated with doing so. Her response, which I have no hesitation accepting, was that she had no idea and indeed, she had no idea what the proceedings involved at all. She did not give any thought to time as an issue and she had no recollection of being told by Ms Read about time limits. Asked whether she ever enquired of Ms Read between March 2001 and March 2003 concerning whether she had actually started a court case, she explained that she did not differentiate between Ms Read and court and thought of them as part of the same process. From time to time she made enquiries to ascertain what was happening and Ms Read would respond by email advising what she was intending to do. She recalled an occasion when she asked how long it might take.
It was Ms Read's evidence that she believed that when she was initially instructed by the plaintiff she mentioned that there was generally a time limit of three years and that if a negligent act had occurred beyond that period of time an extension of time would have to be sought. However, in the course of cross-examination she said that she believed she had been mistaken in that and that the true position was that she did not mention to the plaintiff a specific period of time, such as three years or six years, and referred merely "that there are time limits in these matters but if it was outside the relevant statute of limitations she would have to seek an extension". She pointed out that at the time that she was initially instructed by the plaintiff she did not know whether there was a case for negligence nor in which jurisdiction any doctor might have been guilty of negligence. The plaintiff had seen medical practitioners in Tasmania, Victoria and New South Wales and whether a case of negligence may have been open against a particular practitioner was then unknown.
I find that if Ms Read did raise the issue of time limits the plaintiff did not fully understand what she was being told and at no time did she believe that time was running against her right to claim damages or compensation.
Ms Read was at all times generally aware that time limits applied to a claim for damages for personal injuries based on negligence, but her evidence revealed confusion in her mind concerning precisely what the relevant time limits may have been. I find that she concentrated on establishing whether or not the plaintiff may have had a basis for a cause of action against a medical provider and that the task was made difficult, and considerably so, by the enormous volume of documents, the long and tortuous history and the number of hospital and medical providers involved in the plaintiff's treatment over the years that needed to be considered. I also find that notwithstanding those difficulties, she ought to have been more aware than she was of the risk that statutory limitations of action might have presented an obstacle to the success of any claim by the plaintiff and she should have acted more expeditiously than she did because of that. I also find that the plaintiff should not personally be blamed for the delay that occurred.
I find that the plaintiff has an arguable case for negligence against Dr Parkes and the third defendant arising out of the failure to perform a synacthen test in accordance with the recommendation of 30 April 1998. In addition to the hospital's discharge summary of that date, there appears to exist a page of hospital progress notes upon which there is a handwritten record for that date which suggests that in the course of a ward round by Dr Parkes that day, the recommendation for the synacthen test, that is referred to in the discharge summary, was made. It is Associate Professor Lording's opinion that in the light of that recommendation the test should have been performed. It may well have resulted in a diagnosis of Addison's disease then and an avoidance of much of the plaintiff's suffering from then until October 2000, when the diagnosis was in fact made.
Because the application seeks an extension of time back beyond 30 April 1998 to 3 March 1997, it is necessary to consider whether the plaintiff has an arguable case against Dr Parkes and the State during that earlier period. The only evidence to suggest the possibility of that was from Associate Professor Lording. In his affidavit, par8, he expressed the opinion "that it is arguable that such a test might have been carried out even before that time [April 1998] when regard is had to the symptoms suffered by Mrs Crerar". In cross-examination he said that her recurrent symptoms of dehydration and diarrhoea could have triggered the thought of Addison's disease earlier than April 1998. When pressed for his opinion concerning whether thoughts of the disease should have arisen earlier than then, he was not prepared to say. His response was that it was hard to say more than he had already said, that he had harboured the feeling that there were possibilities for the diagnosis that were not explored and that "I can't say that I was satisfied from what I saw that the process of really going through some less common diagnoses was given due prominence but I can only go on what was written in the notes". Upon the basis of those vague opinions I am far from persuaded that the plaintiff has established that she has a prima facie or arguable case against Dr Parkes and the State for an act or omission prior to 30 April 1998 for which they may be responsible.
It was argued by counsel for Dr Vanderslink that the plaintiff had not established that she had a prima facie case against him. In my view she had because of the evidence of Dr Stewart, a consultant occupational physician, who had over 10 years' experience as a general practitioner and who at one time was an examiner for the College of General Practitioners. His opinion was that a suitably qualified general practitioner (such as Dr Vanderslink) would have read the discharge summary upon receiving a copy of it from the hospital where his patient had recently been admitted (based on his initialling of a copy, there is evidence that he received and read it), would have checked with his patient to discover whether the synacthen test had been carried out and, upon learning that it had not been carried out, would have taken steps to ensure that it was carried out. He was vigorously cross-examined about his views by counsel for Dr Vanderslink and was not shaken. His views were contrary to those of Dr Robert Walters, who has been practising as a general practitioner for over 20 years and who has some impressive credentials, and Associate Professor Lording, both of whom did not think that the general practitioner could have been expected to ensure that the synacthen test was performed, or even make enquiries about whether it had been performed. Nevertheless, the plaintiff was able to produce evidence of an opinion from an experienced medical practitioner, Dr Stewart, which on its face established that she had an arguable case. It is not appropriate, at this stage of proceedings, for me to be weighing up the relative strengths of the two sides of the case and I note that counsel for the plaintiff relied on the dicta of Cox J in Crockett v Roberts, unreported 29/1992 at 5, where his Honour said that an applicant for an extension of time "should not be denied the right to take proceedings, all other things making it just that he should have the extension, merely because on a close analysis of the material put forward on the application it could be said that a judge given the same material on trial and no more would uphold a submission of no case to answer".
No attempt was made by the defendants to raise evidence of specific prejudice having been suffered by them by reason of the delay in commencing proceedings.
Concerning the aspect of delay in commencing proceedings, I conclude that the plaintiff had no reason to suspect that she may have had a particular case against any of the defendants until about June 2001, when she became aware of the contents of the discharge summary, a copy of which had been kept by Dr Vanderslink. Both before and after then she was dependent on the advice and action of her solicitors. By late 2001 it was known that the Professor Stockigt's views did not support a claim. It was not until late April 2002 that the views of Associate Professor Lording, which were the first to support a case against Dr Parkes and the State, were known. The delay thereafter, before the action was commenced, was about 10 months. The Victorian solicitor, who was handling the matter for the plaintiff, then thought it best to have the opinion of counsel in support of commencing proceedings before an action was in fact commenced. That may well reflect a different attitude, at least in emphasis, between Victorian and Tasmanian solicitors concerning the need to obtain counsel's opinion. The making of the decision to commence the action was further delayed by counsel's failure to respond. No doubt the enormity of the task, reflected in the volume of material, contributed to that failure, in the same way as it contributed to other aspects of the delay. I find it understandable that there was considerable nervousness about instituting an action in all the circumstances of the case.
Notwithstanding that counsel for Dr Parkes and the third defendant did not make closing submissions opposing the grant of the application (he expressly did not consent to the grant either), I would not consider extending time against any of the defendants to a date before 30 April 1998, a date which is a little less than two years outside the primary limitation period of three years. The evidence is inadequate to justify going back to a date earlier than that.
I have a discretion whether or not to extend time. I should not exercise it in favour of the plaintiff unless positively persuaded that it is reasonable to do so, having regard to the justice of the case. Limitation Act 1974, s5(3); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Having regard to all the circumstances I have considered and discussed, I determine that it is just and reasonable to extend the time in this case against the defendants.
However, Dr Parkes did not plead the statutory limit in his defence and it is unnecessary therefore to make an order that affects him. Counsel for the plaintiff did not seek such an order.
There will be an order that the time within which the plaintiff may commence proceedings against the second and third defendants, namely Dr Vanderslink and the State of Tasmania, for damages suffered as a consequence of negligence or other breach of duty on or after 30 April 1998 is extended until 3 March 2003.
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