Delai v Western District Health Service & Anor
[2009] VSC 151
•23 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WARRNAMBOOL
COMMON LAW DIVISION
No. 341 of 2008
| SHIRLEY EDITH DELAI | Plaintiff |
| v | |
| WESTERN DISTRICT HEALTH SERVICE and DAVID BIRD | First Defendant Second Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 & 17 April 2009 | |
DATE OF JUDGMENT: | 23 April 2009 | |
CASE MAY BE CITED AS: | Delai v Western District Health Service & Anor | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 151 | |
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LIMITATION OF ACTIONS – Negligence – Hospital – Medical practitioner – Personal injury – Whether limitation period had expired – When cause of action discoverable under s 27F of Limitation of Actions Act 1958 – Meaning of “fault” in s 27F(1)(b) – Relevance of potential cause of action against solicitors - Whether limitation period should be extended under s 27K – Limitation of Actions Act 1958 ss 5(1)(a), 5(1AA), 27D, 27F, 27K, 27L and 27N.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.J. Stanley QC with Ms M. Bylhouwer | Stringer Clark |
| For the First Defendant | Mr M. Wilson | Lander & Rogers |
| For the Second Defendant | Mr S. O’Meara | John W Ball & Sons |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 2
The relevant limitation provisions................................................................................................. 3
The relevant extension provisions.................................................................................................. 6
When were the plaintiff’s causes of action discoverable?......................................................... 7
Facts underlying the extension application................................................................................ 11
Principles to be applied.................................................................................................................. 15
A potential claim by the plaintiff against her solicitors.......................................................... 19
Synthesising the competing considerations............................................................................... 23
Conclusion......................................................................................................................................... 29
HIS HONOUR:
Introduction
On 8 January 2002, Mrs Shirley Edith Delai, the plaintiff, underwent a Pitanguay radical abdominoplasty (“the surgery”) at the Hamilton Base Hospital. The Hamilton Base Hospital is a hospital conducted by the Western District Health Service, the first defendant. Following the surgery, the plaintiff remained an inpatient at the Hospital until 28 March 2002. The surgery was performed by a general surgeon, Mr David Bird, the second defendant. In performing the surgery, Mr Bird was assisted by employees and/or agents of the first defendant.[1] Following the surgery, the plaintiff developed complications including infection and necrosis of the skin and fat of the abdominal wall.[2] The plaintiff alleges that as a result of these complications, she suffered injuries including extensive and major abdominal scarring.
[1]See paragraph 15 of the first defendant’s defence.
[2]See paragraph 15 of the plaintiff’s statement of claim, paragraph 17 of the first defendant’s defence and paragraph 15 of the second defendant’s defence.
In this proceeding, the plaintiff claims damages from the defendants. She alleges that her injuries were caused by the negligence of the defendants. Her complaints concern advice she received as to the risks of the surgery, the performance of the surgery and an alleged delay in diagnosing and treating the infection she suffered following the surgery.[3] This proceeding was issued on 8 July 2008. By their defences, the defendants plead that this proceeding is barred by the operation of the Limitation of Actions Act 1958. In response to these defences, the plaintiff issued a summons seeking an order that “the Court declare that the writ herein has been issued within a period of three years of the date of the cause of action being discoverable by the plaintiff as referred to in s 27D of the Limitation of Actions Act 1958” (paragraph 1 of the summons); alternatively, an order that “the period of limitation applicable to this cause of action be extended pursuant to s 27K of the Limitation of Actions Act 1958 to 8 July 2008” (paragraph 2 of the summons).
[3]During the course of argument it was foreshadowed by Senior Counsel for the plaintiff that although it was not yet specifically pleaded, an application would be made in due course to add to the particulars of negligence an allegation that the second defendant performed a surgical procedure that was beyond his level of competence, expertise and experience (T14.28 – T15.2).
The object of paragraph 1 of the summons was to have the Court declare that this proceeding is not statute barred. However, during the course of argument, Senior Counsel for the plaintiff abandoned paragraph one of the summons. Although he did not expressly concede that the proceeding is statute barred, it is tolerably clear (for the reasons given below) that the limitation period expired before this proceeding commenced. What is now at issue between the parties is the date on which the proceeding became statute barred and whether or not the Court should extend the period of limitation applicable to the plaintiff’s cause of action pursuant to s 27K of the Limitation of Actions Act. For the reasons given below, there will be an extension of the period of limitation applicable to the causes of action pleaded in the plaintiff’s statement of claim[4] to 8 July 2008.
[4]Including, if necessary, the amendment foreshadowed at T14.28 – T15.2.
The relevant limitation provisions
Section 27N of the Limitation of Actions Act provides:
“(1) This Part [Part IIA (containing ss 27A to 27N)] applies to causes of action where the act or omission alleged to have resulted in the death or personal injury with which the action is concerned occurs on or after 21 May 2003.
(2) On and from 1 October 2003, this Part applies to causes of action where the act or omission alleged to have resulted in the death or personal injury with which the action is concerned occurred before 21 May 2003.
(3) Subsection (2) does not apply to a cause of action for which proceedings were commenced in a court before 1 October 2003.
(4) Despite subsection (2), nothing in Division 2 operates to extend a period of limitation applicable to a cause of action in relation to an act or omission that occurred before 21 May 2003 to a period longer than the period of limitation that would have applied to the cause of action if this Part had not been enacted.
(5) Nothing in subsection (4) operates to prevent an application being made under Division 3 to extend a period of limitation referred to in that subsection.”
This proceeding was issued after 30 September 2003. The acts or omissions alleged to constitute the causes of action occurred before 21 May 2003. Therefore, the relevant limitation provisions are contained in Part IIA, subject to those provisions not operating to extend a period of limitation applicable to the causes of action to a longer period than would have applied had Part IIA not been enacted.[5] Immediately before the enactment of Part IIA, the applicable limitation period for the plaintiff’s causes of action was six years pursuant to s 5(1)(a).[6]
[5]See s 24N(4).
[6]The reference to s 5(1AA) (which provided a three year limitation period) in the first defendant’s defence is (as counsel for the first defendant fairly conceded) not well founded because s 5(1AA) only has application in respect of certain causes of action that accrued on or after 5 November 2002 (see s 2 of the Limitation of Actions (Amendment) Act 2002 and s 39 of the Limitation of Actions Act). No party suggests that under the provisions of the Limitation of Actions Act as they were prior to the enactment of Part IIA, the plaintiff’s causes of action arose on or after 5 November 2002.
Section 27D(1) of the Limitation of Actions Act provides:
“(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire-
(a) the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b) the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.”
The issue of discoverability is dealt with in s 27F. Section 27F relevantly provides:
“(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts-
(a) the fact that the death or personal injury concerned has occurred;
(b) the fact that the death or personal injury was caused by the fault of the defendant;
(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) …”
An issue arises between the parties as to when the plaintiff’s causes of action were discoverable. The issue affects not only the extension of time application (for reasons which I will come to below), but also the question of the date on which the plaintiff’s causes of action became statute barred. In support of her application, the plaintiff relied on an affidavit sworn by her on 27 November 2008. This affidavit appears to have been drawn to support a contention by the plaintiff that her causes of action were not discoverable until 27 September 2007[7] when she consulted Associate Professor Donald Marshall.[8] The defendants contend that the causes of action were discoverable very soon after the surgery on 8 January 2002. Indeed, the first defendant pleads in its defence[9] that any cause of action which the plaintiff might have against the first defendant accrued on or about 22 March 2002. The question of whether the plaintiff’s causes of action were discoverable in early 2002 or September 2007 (or on some intermediate date) affects the question of when the plaintiff’s causes of action became statute barred. This is because if, pursuant to the provisions of the Limitation of Actions Act as they were prior to the enactment of Part IIA, the plaintiff’s causes of action accrued on or about 22 March 2002,[10] then under s 5(1)(a) the plaintiff’s causes of action would have become statute barred on 22 March 2008. However, if the causes of action were discoverable on, say, 22 December 2004 (when the plaintiff issued earlier County Court proceeding (“the County Court proceeding”), about which I will say more below), then they became statute barred on 22 December 2007. Whereas if they became discoverable on 27 September 2007, then, whilst an application of s 27D would provide for a time limit that expires on 27 September 2010, s 27N(4) operates so as to hold the limitation period at 22 March 2008.
[7]Indeed, the plaintiff pleads in paragraph 23 of her statement of claim that she “was not aware until about September 2007, that the injury was caused by the fault of the defendant (sic)”.
[8]A clinical Associate Professor of Surgery and specialist plastic and reconstructive surgeon.
[9]At paragraph 27.
[10]As is asserted in paragraph 27 of the first defendant’s defence.
Applying the above reasoning (and assuming the plaintiff’s causes of action were complete on 22 March 2002),[11] the following scenarios might arise:
[11]As appears to be suggested by paragraph 27 of the first defendant’s defence.
(a) First, if one looked only at the plaintiff’s affidavit, then it could be contended that the proceeding was not discoverable until the plaintiff saw Associate Professor Marshall. In this scenario (because of s 27N(4)) the proceeding became statute barred on 22 March 2008 and was issued three and a half months out of time.
(b) Secondly, the causes of action were discoverable on 22 December 2004 when the County Court proceeding was issued. In this scenario, the proceeding became statute barred on 22 December 2007 and was issued six and a half months out of time.
(c) Thirdly, the causes of action were discoverable shortly after 22 March 2002. In this scenario, the proceeding was statute barred shortly after 22 March 2005 and was thus issued approximately three years and three months out of time.
The relevant extension provisions
The relevant extension provisions are ss 27K and 27L. Section 27K provides:
“(1) A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.
(2) Subject to section 27L, the court-
(a) may hear any of the persons likely to be affected by the application as it sees fit; and
(b) may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
(3) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.”
Section 27L relevantly provides:
“(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following-
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e) the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2) To avoid doubt, the circumstances referred to in subsection (1) include the following-
(a) whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant's conduct.
(3) …
(4) ...”[12]
[12]For the sake of completeness, I should also refer to s 27M, which provides that an extension may be given even though the period of limitation has already expired or a proceeding has already been commenced.
Immediately one sees that the issue of discoverability is relevant not only on the question of when the limitation period expired, but also in relation to the extension application. The time within which the causes of action were discoverable is made relevant by s 27L(1)(e).[13]
[13]Cf the lack of any specific reference to this issue in s 23A.
When were the plaintiff’s causes of action discoverable?
Whilst the plaintiff’s affidavit appears to have been drawn with a view to suggesting that her causes of action were not discoverable until she saw Associate Professor Marshall on 27 September 2007, cross-examination of her revealed a different picture. The plaintiff was not be precise about dates. However, it appears that in approximately September 2003 she saw a GP (the name of whom she could not remember) in Queensland. This GP examined the plaintiff’s abdomen and said to her “Oh my God, who did that? You really need a solicitor on this, it is disgusting”. The GP told the plaintiff that the surgery had been “botched up”.[14] Indeed, the plaintiff agreed with the suggestion in cross-examination that “pretty much immediately after the surgery … [she] thought it had been botched up”.[15] Further, she agreed that she attributed the result from the surgery to the fault of the second defendant from a day or so after the surgery.[16] Ultimately, she agreed that “all along from within about three days of the surgery” she thought that her abdomen had been “botched up” and that “it was the fault of the doctors or the hospital”.[17]
[14]T26.18.
[15]T26.27 – T26.29.
[16]T27.7 – T27.18.
[17]T31.10 – T31.16.
In this case, the argument about discoverability has centred on the issue of whether the plaintiff knew or ought to have known that her injuries were caused by the “fault” of the defendants within the meaning of s 27F(1)(b). The meaning of the word “fault” in s 27F(1)(b) was dealt with in some detail by Kaye J in Spandideas v Vellar.[18] In that case, his Honour held that the word bore its ordinary and natural meaning, namely, an act or omission to which some culpability or blame attaches.[19] His Honour went on to say:[20]
“However, I do not consider that s 27F(1)(b) requires that the plaintiff form a legal judgment as to the “fault” of a defendant in the tortious sense of the word. Rather, I consider that Parliament intended that the period of limitation is to commence when the plaintiff knew (or ought to have known), inter alia, of the fact that the death or personal injury, the subject of the claim, was caused by an act of a person, which should not have been carried out, or which should have been done differently, or by an omission by another person to carry out an act, which should have been done. In such a case, should a plaintiff have formed such a view, it may not be necessary for the plaintiff to have expressly entertained any notion of “fault”; rather, what the sub-section fixes on is the knowledge of the plaintiff (or the circumstance that the plaintiff should have known) that the death or injury resulted from an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done.”
[18][2008] VSC 198. See also Vellar v Spandideas [2008] VSCA 139.
[19][2008] VSC 198 at paragraph [34].
[20]At paragraph [35].
As was noted by the Court of Appeal in Vellar v Spandideas,[21] Kaye J’s construction of “fault” departed from the construction “as a reference to a ‘causative act or omission’” by his Honour in Caven v Women’s and Children’s Health.[22] However, the issue was decided in Caven without the benefit of argument.[23] Ultimately, the Court of Appeal did not have to determine whether or not sufficient doubt attended the correctness of the construction of “fault” in Spandideas. Spandideas has been followed in Tucker v Barwon Health and Geelong Hospital.[24] I would not depart from the construction adopted in Spandideas unless I was satisfied that it was clearly wrong. I am not so satisfied.[25] Accordingly, I propose to follow Spandideas.
[21][2008] VSCA 139 at paragraph [65].
[22](2007) 15 VR 447.
[23]Caven, supra at paragraph [56].
[24][2008] VSC 229 – albeit without argument (see in particular paragraph [73]).
[25]But cf Baker-Morrison v New South Wales [2009] NSWCA 35 at paragraphs [31] – [44], noting that whilst s 27F is in materially the same terms as s 50D of the Limitation Act 1969 (NSW), there are material differences in and concerning the legislative histories of the relevant New South Wales and Victorian provisions.
Having observed the plaintiff in the witness box, I have little doubt that at the time she saw the GP in Queensland (approximately September 2003), she knew that her injuries were caused by the fault of the defendants within the meaning of s 27F(1)(b). This conclusion obviates the need to consider whether a plaintiff might ever be able to say that they did not know (nor ought they have known) that their injuries were caused by the fault of a defendant even though legal proceedings had been commenced (in this case the County Court proceeding in December 2004).[26] However, one suspects that such a case must be very rare when one considers the purposes of Part IIA.[27]
[26]Cf paragraph 23 of the plaintiff’s statement of claim which appears to be an allegation that the plaintiff’s causes of action were not discoverable until after the County Court proceeding was issued.
[27]See also s 27F(3).
The plaintiff is 72 years of age. She is slightly hard of hearing. I mean her no disrespect when I say she was a difficult witness. At times, she exhibited an inability to grapple with the questions being put to her. However, she impressed me as an honest witness who was doing her best to remember matters as she knew them. Contrary to her own interests, she freely conceded knowing that the defendants were at fault from within days of the performance of the surgery. However, I think it more likely that the plaintiff has been angry with the defendants and the result of her surgery for so long that she now believes this has been her state of mind from within days of the surgery – whereas the more likely position is that this state of mind developed over a period of weeks or months in 2002. I am fortified in this conclusion by the letter written by the second defendant on 24 April 2002 to the plaintiff’s GP[28] in the following terms:
“The area of wound necrosis has finally healed with skin graft and dressings. On review today she was better but happily miserable at times. I have told her and her husband that there is no need for her to come back to see me again and I would expect that the skin graft site will continue to contract down and thicken up in time. She seems to be philosophical now about the complication and seems to have come to terms with it happening. I have told them to come to see me should there be any more problems but certainly hope there will be none.”[29]
[28]Exhibit A.
[29]Whilst this letter was written in the context of an examination after a further debridement and skin grafting procedure performed on 21 March 2002 (see Exhibit 2D1), this fact does not detract from the conclusion I have reached.
It is not possible to be precise as to when the plaintiff’s causes of action became discoverable. Having regard to the plaintiff’s evidence, it is likely that she attributed fault to the defendants within two or three months of her attendance on the second defendant on 24 April 2002. Her condition did not get better over this period and it is likely that her disappointment and anger mounted during this period. Whilst the issue of what the plaintiff ought to have known is also relevant so far as s 27F(1) is concerned, the evidence does not disclose that the plaintiff ought to have known that her injuries were caused by the fault of the defendants at any time before she actually had such knowledge. In the circumstances, I conclude that the plaintiff’s causes of action were discoverable in or about early July 2002.[30] It follows that the plaintiff’s causes of action became statute barred in or about early July 2005. It is necessary to turn now to the facts underlying the extension application.
[30]I find it unlikely that the plaintiff knew of any fault within the meaning of s 27F(1)(b) immediately after, or in the days following, the surgery (notwithstanding the plaintiff’s evidence). The more likely scenario (and the one which I infer occurred) is that the plaintiff became increasingly disappointed with the outcome of the surgery in the weeks and months which followed it to the point where she had the requisite knowledge in or about early July 2002.
Facts underlying the extension application
The surgery was performed on 8 January 2002. The plaintiff was discharged from hospital on 28 March 2002. Her causes of action were discoverable in or about early July 2002. In approximately September 2003, she was told by her GP that she should see a solicitor. She went to Carswell & Company, solicitors in Maryborough, Queensland. On 20 January 2004, she signed an authority authorising the hospital to provide Carswell & Company with copies of her medical records. In March 2004, she returned from Queensland to Victoria (she had moved to Queensland in 2003 to be closer to her grandchildren after the suicide of her son in 2002).
On 18 May 2004, the plaintiff consulted her current solicitor, Mr John Cramp of Stringer Clark. Mr Cramp swore an affidavit in support of the plaintiff’s application[31] and was cross-examined. His affidavit and viva voce evidence discloses the following chronology:
[31]Sworn 14 November 2008.
(a) At the time of taking initial instructions (18 May 2004), he obtained the file from Carswell & Company. This file contained the hospital records, save for admission and consent forms and “wound management documents”.[32] Mr Cramp cannot recollect whether he had to obtain the file from Carswell & Company or whether it was provided to him by the plaintiff.
[32]T46.
(b) On 25 May 2004, Mr Cramp wrote to the plaintiff’s medical practitioners, Dr Greta Prozeski of the Casteron Medical Centre and Dr Clifforth of the Glenelg Surgical Group and the second defendant.
(c) On 28 May 2004, Mr Cramp received the Glenelg Surgical Group records, being the records of Mr Clifforth, Mr Tung and the second defendant.
(d) On 21 June 2004, the Casteron Clinic notes were received by Mr Cramp.
(e) On 8 July 2004, Mr Cramp forwarded a brief to advise to counsel. On 16 September 2004, counsel provided advice outlining a number of matters that needed to be attended to before the matter could proceed.
(f) On 21 September 2004, Mr Cramp saw the plaintiff and obtained further instructions pursuant to counsel’s advice. On 28 September 2004, a further brief was sent to counsel with the plaintiff’s further instructions. This brief was supplemented on 10 November 2004 by the provision of the Glenelg Surgical Clinic notes which (although received prior to 8 July 2004) were not delivered with the original brief.
(g) On 22 December 2004, the County Court proceeding was commenced by the filing of a generally endorsed writ. The general endorsement covered the matters the subject of this proceeding.[33]
[33]Indeed, a proposed statement of claim in the County Court proceeding (Exhibit 2D5) is in substantially identical terms to the statement of claim in this proceeding.
(h) On 27 April 2005, Mr Cramp received further advice from counsel which outlined steps to be taken in the investigation and preparation of the plaintiff’s claim. On 24 May 2005, Mr Cramp met with the plaintiff and discussed counsel’s advice. On 29 August 2005, the plaintiff conferred with counsel.
(i) On 31 August 2005, counsel provided further advice. The substance of the advice concerned:
(i) the need to obtain a copy of the consent form for the performance of the surgery;
(ii) the need to obtain notes from a clinic in Coleraine (however, this was a mix-up brought about by one of the doctors having a practice in both Coleraine and Casterton – and ultimately this step was unnecessary); and
(iii) the desirability of making an application to LawAid.[34]
[34]The civil legal aid scheme set up pursuant to Part VIA of the Legal Aid Act 1978.
(j) On 27 October 2005, Mr Cramp, on behalf of the plaintiff, made an application to LawAid.
(k) On 2 November 2005, application was made to the County Court for an order that the period of validity of the writ be extended for 12 months. On 5 November, Judge Pilgrim ordered the period of validity of the writ be extended for 12 months from that date.
(l) On 16 November 2005, Mr Cramp received advice that LawAid had approved the plaintiff’s application.
(m) On 13 December 2005, Mr Cramp received correspondence from the second defendant enclosing the request for admission and consent forms, and the wound management documents, which (he said) “had not been previously in the notes that were sent to Carswells”.[35]
[35]T45.31 – T46.4.
(n) During 2006, Mr Cramp deposes that he continued to be instructed by the plaintiff to investigate her claim and he continued to do so. This took the form of discussions with counsel and the instructing of an expert plastic surgeon, Mr John Anstee, and an expert in infectious diseases, Dr Michael Whitby. A report dated 14 February 2006 was obtained from Mr Anstee on 7 March 2006. A report dated 19 January 2007 was obtained from Dr Whitby on 31 January 2007.
(o) In the interim, on 2 October 2006, a further application was made for an order that the period of validity of the writ be extended for 12 months. This order was made by Judge Duggan on 4 October 2006.
(p) During the first half of 2007, Mr Cramp continued to be instructed by the plaintiff to investigate her claim and he continued to do so. This took the form of receiving the report from Dr Whitby and communications with LawAid on 5 and 17 April 2007. To some extent, investigations were hampered by Mr Cramp’s inability to obtain a timely report from Mr Whitby.[36] There were discussions with counsel after the receipt of Mr Whitby’s report. The communications with LawAid during this period concerned the possibility of obtaining permission to obtain another report. There were further communications with LawAid on 16 May 2007.
[36]T55 – T56.
(q) In the interim, on 21 March 2007, Mr Cramp had a conference with the plaintiff in which he told her that “it was a very difficult situation in terms of having a cause of action”.[37]
[37]T59.4 – T59.5.
(r) On 23 May 2007, Mr Cramp briefed counsel for a further advice. Advice was received on 28 June 2007.[38] The advice concerned the reports of Mr Anstee and Dr Whitby. In the advice, reasons are given for the opinion (of counsel) that Dr Whitby’s report “does not support the plaintiff in an action in negligence for the inappropriate treatment of the infection she developed following [the surgery]”. Further, the opinion is expressed that a report should be obtained from another plastic surgeon. Associate Professor Marshall is suggested.
[38]Exhibit C.
(s) There were further communications with LawAid on 8 and 14 August 2007. Information was sought by LawAid from Mr Cramp. Mr Cramp was advised that if he could provide this information, his request for funding could be referred to the trustees, who were to meet on 10 September 2007.
(t) On 18 September 2007, an appointment was arranged with Associate Professor Marshall. A letter was written on 21 September and the plaintiff attended the appointment on 27 September. Mr Cramp was told that a report would be typed on 2 October and sent to him. A report dated 27 September 2007 was subsequently sent. This report was received by Mr Cramp on 12 October 2007.[39] Mr Cramp then reviewed the file to determine whether the report could be provided to counsel to allow her to draw a statement of claim within the period of validity of the writ (as extended by earlier orders). In reviewing the file, Mr Cramp erroneously looked at the order of Judge Pilgrim, rather than the order of Judge Duggan. As a result of this mistake, Mr Cramp wrongly believed that he had until 4 November 2007 to file the statement of claim and serve the writ. In fact, the writ had to be served by 3 October 2007. Mr Cramp discovered his error when preparing a brief to counsel to draw the statement of claim.
(u) On 17 October 2007, application was made to Judge Wodak for an extension of the period of validity of the writ. This application came on for hearing on 24 October, 13 November and 20 December 2007.[40] The application was made after the writ had become stale. In January 2008, Mr Cramp contacted the plaintiff and advised her of his mistake. On 29 February 2008, Judge Wodak dismissed the plaintiff’s application.
(v) The writ in this proceeding was issued on 8 July 2008. On 19 August 2008 and 27 August 2008, Mr Cramp received the defences from the defendants. Both defendants pleaded that the plaintiff’s causes of action were barred by the provisions of the Limitation of Actions Act. On 14 November 2008, the plaintiff filed the summons referred to in paragraph 2 above seeking the declaration (which is no longer pursued) and an extension of the period of limitation pursuant to s 27K to the date when the writ was issued (8 July 2008).
[39]Paragraph 22 of Mr Cramp’s affidavit sworn 14 November 2008.
[40]It was actually heard on 20 December 2007.
Principles to be applied
The plaintiff bears the onus of establishing that it is just and reasonable to order the extension of the period of limitation applicable to her causes of action.[41] The approach to be taken in an application under s 27K is, broadly speaking, the same as the approach to be taken under s 23A. Section 23A is, in large part, a mirror of ss 27K and 27L. In Tsiadis v Patterson,[42] Buchanan JA[43] said:[44]
“The matters which the Court is required by s23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case.[45] Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. I agree with Brooking J in Bell v SPC Ltd[46] when he said:
‘The question posed by s23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in para(a) to para(f) of subs(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them. ... It is for the plaintiff to satisfy the Court that it is just and reasonable to extend the period.’”
[41]See s 27K(2)(b), Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 and Richards v The State of Victoria & Ors [2001] VSC 52 at paragraph [11].
[42](2001) 4 VR 114.
[43]With whom Ormiston and Callaway JJA agreed.
[44]At paragraph [33].
[45]Brisbane South Regional Health Authority v Taylor, above, at 549-50 per Toohey and Gummow JJ.
[46][1988] VR 123 at 125-126.
Section 27L(1)(a) and (b) requires the Court to take into account “the length of and reasons for the delay on the part of the plaintiff” and “the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant”. These sections are equivalent to s 23A(3)(a) and (b). The authorities concerning the meaning of delay in ss 23A(3)(a) and (b)[47] hold that the delay referred to in those sections is delay between the accrual of the cause of action and the making of the application for an extension of time. The possibility arises that the delay referred to in ss 27L(1)(a) and (b) is delay commencing from when the causes of action were discoverable. This is so because of the issue of discoverability being raised by the new limitation provisions (in this case s 27D) and the fact that s 27L(1) requires the issue of discoverability to be taken into account – whereas s 23A contains no such explicit requirement. Whilst the matter was not argued in detail, in my view there are some grounds for contending that the delay referred to in ss 27L(1)(a) and (b) is delay from the time when the relevant cause of action was discoverable. However, there are powerful arguments, identified in Koumorou, for the view that the delay referred to in s 27L is delay from the accrual of the cause of action. For reasons which will become apparent, it is not necessary for me to resolve this issue definitively. Performing the synthesis required in this case yields the same answer, irrespective of whether the delay from the accrual of the causes of action is considered on the one hand, or merely the delay from discoverability is considered on the other hand. Whilst I favour the conclusion that the delay in s 27L is delay from the accrual of the cause of action, for the reasons given in Koumorou, and on the basis that issue of discoverability falls to be considered specifically by the operation of s 27L(1)(e), that issue can be left to another case in which its resolution is critical.
[47]Koumorou v State of Victoria [1991] 2 VR 265 and Repco Corporation Limited v Scardamaglia [1996] 1 VR 7.
Prejudice is an important consideration in determining an application under s 27K. The prejudice referred to in s 27L(1) need not be caused by the delay complained of, but need only have come about by reason of the lapse of time involved in the period of delay.[48] Section 27L requires the Court to have regard not only to the established prejudice but also to consider the extent to which there is likely to be prejudice.[49] Mere delay itself, when it is inordinate, may be taken as evidence of prejudice.[50]
[48]Lord v Australian Safeway Store Pty Ltd [1996] 1 VR 614 at 622-3.
[49]Tsiadis, supra.
[50]Myer Melbourne Limited v Hammond [1984] VR 40 at 49, Ford Motor Company (Aust) Limited v Kulic [1988] VR 152 at 157 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
In explaining the rationale for limitation provisions, McHugh J said in Brisbane South Regional Health Authority v Taylor:[51]
“For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United State Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
[51](1996) 186 CLR 541 at 551.
The importance, and relevance, of prejudice in an application under s 27K is emphasised by the specific reference in s 27L(2) of whether the passage of time has prejudiced a fair trial of the proceeding. Whilst the Court of Appeal in Tsiadis distinguished Brisbane South Regional Health Authority v Taylor, it did not “either in terms or by implication, distinguish the judicial statements made in that case as to the rationale for the existence of limitation periods and the interaction between statutory time bars and the question of prejudice to a defendant when a court makes an order which effectively overrides them”.[52]
[52]Burk v The Commonwealth (No. 2) [2002] VSC 464 at paragraph [14].
In this application, the defendants raise the issue of the plaintiff’s prospects of successfully suing her solicitor for negligence in relation to the mistake he made concerning the time within which he had to apply for an extension of the period of validity of the County Court writ. Accordingly, it is necessary to consider the principles to be applied in relation to this issue. Prior to the Full Court’s decision in Repco Corporation Limited v Scardamaglia,[53] there was a reluctance in this Court to express any concluded view about the relevance of the consideration of alternative causes of action that might be open to a plaintiff who failed to obtain an extension of the limitation period. In Scardamaglia, Smith J[54] said:[55]
“In the present case, if the section does require consideration of the possibility of Mr Scardamaglia's right to sue his legal representatives, I am not persuaded that that possibility is something that should affect my view that on balance it would otherwise be just and reasonable to exercise the discretion in his favour. While it might be said that on the evidence before the Court the rights against the legal representatives appear to be strong, there is no admission of negligence by the legal representatives and the issues that may arise in any such action have not been investigated or pursued fully in these proceedings. In any event, confining Mr Scardamaglia to an action against the legal representatives would carry with it its own prejudice. He would be able to seek compensation not in respect of his injuries but for his loss of his right to sue Repco. He would find himself having to prove two cases - the original case against Repco and a further case, the case against the legal representatives. The proceeding would, therefore, be more time consuming and more costly. There would also be a real risk, that, if successful, any sum recovered would be less than any sum that he would have recovered in the original proceeding; for any damages awarded would be for the lost chance to recover damages in the proceedings against Repco (Johnson v Perez (1988) 166 CLR 35; Nikolaou v Papasavas, Phillips and Co (1988) 166 CLR 394).”
[53][1996] 1 VR 7.
[54]With whom Brooking and J.D. Phillips JJ agreed.
[55]At p.15.
In Tsiadis (supra) the Court of Appeal resolved the question, concluding that it was appropriate to determine in an application under s 23A to have regard to the plaintiff’s ability to recover damages from a former solicitor where that solicitor’s negligence had made the application necessary. This, of course, does not mean that in every case where there is the possibility of successfully bringing proceedings against a solicitor, that the discretion contained in s 23A (or in this case s 23K) should be exercised against the plaintiff. As Forrest J said in Gordon v Norwegian Capricorn Line (Australia) Pty Limited:[56]
“It follows that a potential claim against former solicitors is a relevant consideration, but that the question of what weight is to be given to it depends on the circumstances; a court must be careful in ascribing weight to the prospect of such a claim, given that the full circumstances surrounding such a claim may not be known. A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against the solicitors as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms — diminution in the value of the claim as well as any added costs and the complexity of the proceeding against the former solicitor.”
[56][2007] VSC 517 at paragraph [86].
Before turning to an analysis of the matters required to be taken into account by s 27L and the competing considerations in the circumstances of this case, it is necessary to say something concerning the strengths of a suggested possible cause of action the plaintiff might have against her solicitors.[57]
[57]And in particular Mr Cramp.
A potential claim by the plaintiff against her solicitors
Substantial reliance is placed by the defendants upon the fact that the plaintiff has a cause of action against her solicitors in which (they say) negligence has been admitted. The solicitor (Mr Cramp) is described by the defendants as “plainly at fault” and having admitted that it was his “ineptitude that caused the plaintiff to be in [her] current position”.[58] In summary, the defendants contend that Mr Cramp was negligent when he overlooked the order of Judge Duggan and thereby wrongly believed he had until 4 November 2007 to file the statement of claim and serve the writ. The defendants describe the potential claim against Mr Cramp as “extremely strong”.[59] However, closer analysis is required.
[58]See paragraph 5(h)(ii) of the second defendant’s outline of submissions dated 17 April 2009 and paragraph 32 of the first defendant’s outline of submissions dated 16 April 2009.
[59]See for example paragraph 32 of the first defendant’s outline of submissions dated 16 April 2009.
The criticisms of Mr Cramp in relation to his reliance upon the order of Judge Pilgrim (rather than the order of Judge Duggan) are, to some extent, beside the point. According to Mr Cramp’s affidavit, he reviewed the file to determine whether the report of Associate Professor Marshall could be provided to counsel to allow her to draw a statement of claim, and at that time inadvertently looked at the order of Judge Pilgrim. However, if (as he deposes) Mr Cramp received the report of Associate Professor Marshall on or about 12 October 2007, then the writ was already stale at that time. As at 12 October 2007, it was necessary to apply to extend the period of validity of the County Court writ. The application to extend the period of validity, which was ultimately heard by Judge Wodak, was not dismissed because of any failure to issue it within the period of Judge Duggan’s order. The application was dismissed because no “good reason”[60] was made out. The chronology of the application before Judge Wodak and the reasons of Judge Wodak are important. The following points may be made:
[60]See Savcor Pty Ltd v Catholic Protection International APS [2005] VSC 213.
(a) First, Judge Wodak directed that notice of the application be given to each of the defendants (the application was initially made ex parte). This was done because of the two earlier extensions which had been granted.[61] It was not done because of any lateness in the making of the application, or because the application was made after the expiration of the period in Judge Duggan’s order.
[61]Reasons of Judge Wodak at paragraph [13].
(b) Secondly, as Judge Wodak noted, in order for the plaintiff to succeed, there had to be a good reason for the grant of the extension. Further, if the application was made after the period of validity had expired (as this one was), that good reason had to be “one of substance”.[62]
(c) Thirdly, the application before Judge Wodak failed because his Honour concluded that no “good reason” had been established. This application did not fail because of any lack of “substance” in a “good reason” posited by the plaintiff. That is, the reasons of Judge Wodak disclose that if the application that was made to him had been issued before the expiration of the period to which Judge Duggan’s order applied, it would still have failed.
Thus, it was not any inadvertence or negligence on the part of Mr Cramp in looking at Judge Pilgrim’s order on or after 12 October 2007 which led to the failure of the application before Judge Wodak – but rather the fact that no good reason was established for a third extension of the period of validity. Whilst it is well arguable that it was negligent of Mr Cramp to act upon the basis of a misreading of Judge Pilgrim’s order (rather than Judge Duggan’s order) after he received Associate Professor Marshall’s report, it is well arguable that this “negligence” did not lead to the plaintiff suffering any loss.
[62]See Savcor, supra and the reasons of Judge Wodak at paragraph [25].
The real question in this case is whether Mr Cramp should have had in place systems that alerted him to the imminent expiration of the period in Judge Duggan’s order. Had there been such systems, then the question that arises is what Mr Cramp would have done in late September 2007 or during the first three days of October 2007. As at 3 October 2007, Mr Cramp did not have Associate Professor Marshall’s report (albeit that the report is ultimately dated 2 October 2007). Questions arise as to whether Mr Cramp could have taken steps to procure the report prior to 3 October 2007 and whether he should have made an application for an extension of the period of validity during this period or simply served the writ (perhaps on the assumption that the report, when received, would be favourable).
With the benefit of hindsight, it can be seen that the preferable course was, knowing a report would be received shortly, to serve the County Court writ. However, Mr Cramp obviously did not have the benefit of hindsight. His decisions fall to be examined as the facts unfolded. If the plaintiff’s present application for an extension of time under s 27K fails, she certainly has an arguable claim in negligence against Mr Cramp in relation to the failure to serve the County Court writ on or before 3 October 2007. However, such a case would not be (to use the words of Senior Counsel for the plaintiff) “a lay down misere”. As Megarry J said in John v Rees:[63]
“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that by discussion, suffered a change.”
[63][1970] 1 Ch 345 at 402.
Such admissions as have been made by Mr Cramp concerning his conduct in this case relate to his inadvertently looking at (and misreading) Judge Pilgrim’s order. They do not relate to what would be central in any case brought by the plaintiff against her solicitors, namely whether or not the writ should have been served on or prior to 3 October 2007 having regard to Mr Cramp’s state of knowledge of and in relation to the case as it existed at that time. It would be open in any case against the plaintiff’s solicitors for the defendants to that proceeding to assert that reasonable conduct required no more than, as at 1 or 2 October 2007, a further application for extension of the period of validity of the writ be made (pending the receipt of Associate Professor Marshall’s report). This is a matter capable of debate. If such an application had been made, there are good grounds for contending that it would have come on before Judge Wodak in the same way the application ultimately made came on before his Honour – and that it would have been dismissed for the same failure to establish a “good reason”. On the other hand, it could be contended that, had an application for a very short extension been made on the basis of the likely imminent receipt of Associate Professor Marshall’s report, this application may have had greater prospects of success than the one actually made to Judge Wodak.
In this case there is no relevant admission of negligence on the part of Mr Cramp or the potential defendants to an action by the plaintiff against her solicitors. That is, there is no admission by Mr Cramp that he should have served the writ before he obtained the report of Associate Professor Marshall, or that he negligently took too long to investigate and prosecute the plaintiff’s proceeding. Whilst it might be said that the plaintiff’s prospects in such a case are reasonable, in reality there is insufficient material before me to enable a definitive conclusion as to the plaintiff’s likely prospects of success in such a proceeding. While the existence of a potential claim is relevant, it is not, in my view, a matter to be accorded great weight in the performance of the synthesis required by s 27K. Further, there are two additional reasons why only limited weight should be accorded to this matter. They are:
(a) First, any damages recovered from the plaintiff’s solicitors would only be for the loss of the right to sue the current defendants rather than damages for the injuries actually sustained.
(b) Secondly, there are added costs and an added complexity associated with bringing a new claim against the plaintiff’s solicitors, rather than the present proceeding.[64]
[64]See generally Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517 at paragraph [86].
I turn now to synthesising the competing considerations as required by s 27L.
Synthesising the competing considerations
This proceeding was issued six years and six months after the surgery was performed. It was issued approximately six years and three and a half months after the date upon which the first defendant asserts the plaintiff’s causes of action accrued.[65] It was issued approximately six years after the date upon which I have found the causes of action were discoverable. It was, on any view, issued between three and three and a half years after it became statute barred.[66] The primary reason for the delay is said (by the plaintiff) to be the time taken to investigate the merits of the proceeding. This time was contributed to by delays in obtaining some records (for example those parts of the second defendant’s records received on 13 December 2005), delays in obtaining medical reports (for example Mr Anstee’s report dated 14 February 2006 was not received until 7 March 2006) and delays in obtaining disbursement funding from LawAid. Senior Counsel for the plaintiff summarised the plaintiff’s application by saying:[67]
“What if she did know everything, what more could she have done? She went to see solicitors, she followed their advice, she did everything that was required of her. There is not a suggestion made that she was in any way culpable or in any way responsible for extending any delay.”
[65]See paragraph 27 of the first defendant’s defence.
[66]Although at the time of the surgery, and at all relevant times up to 30 September 1993, the time limit was six years. If this time limit had remained in force, then the proceeding would have been issued when it had been barred for a period between three and six months.
[67]At T142.3 – T142.8.
I have no doubt that from the time when the plaintiff first went to her current solicitors in May 2004 (within the limitation period) she wanted proceedings to be issued. Indeed, such proceedings were issued (the County Court proceeding) in December 2004. In that sense, this case is different from the usual case where no proceeding has been issued and delay falls to be considered by reference to that fact. Whilst the plaintiff had a duty to serve the County Court writ promptly, her conduct (and more particularly, the conduct of her solicitor) can be explained to some extent by the fact that a proceeding was on foot and liability was being investigated.
In advancing its submissions, the first defendant concentrated on the following periods of delay:
(a) the provision of clinical notes to counsel: It was said variously that this involved a delay between 28 May 2004 and 10 November 2004, a delay between 21 June 2004 and November 2004 and a delay between 13 December 2005 and an unknown date;
(b) a delay between 16 November 2005 when LawAid was approved and 4 October 2006 when the plaintiff’s solicitors extended the generally endorsed writ;
(c) a delay between 4 October 2006 when the writ was extended until 27 September 2007 when the plaintiff saw Professor Marshall; and
(d) a delay between 29 February 2008 (when the application before Judge Wodak was dismissed) and 8 July 2008 when the writ was issued.
Similarly, whilst the first defendant concentrated on periods of delay prior to 8 July 2008 when the writ was issued, the period between 8 July 2008 and 14 November 2008 (when this application was issued) needs to be examined.
It is always possible to look at a particular matter over years and identify periods of months where little (and in some cases, no) activity has occurred. These periods should be examined. However, they need to be examined not only individually, but also in the context of the periods and circumstances that surround them. In this case, it is certainly true that little (if anything) occurred between Judge Wodak dismissing the plaintiff’s application on 29 February 2008 and the issuing of the writ on 8 July 2008. So far as the other periods in respect of which the defendants make complaint are concerned, the chronology set out in paragraph 20 above (and more particularly Mr Cramp’s affidavit and Mr Cramp’s viva voce evidence) discloses that steps were being taken by Mr Cramp to advance the plaintiff’s claim. This is not a case where the solicitor for the plaintiff delayed inordinately by failing to take any step for prolonged periods. The solicitor for the plaintiff (Mr Cramp) clearly found this case to be a difficult case (notwithstanding the cross-examination to the contrary by counsel for the defendants). Further, he found it to be a case which required significant thought, discussion with counsel and consideration. Having seen Mr Cramp (who impressed me as a careful and conscientious practitioner), I am not prepared to conclude that there was any inordinate delay in the investigation and prosecution of the plaintiff’s claim.
During cross-examination, it was put to Mr Cramp on a number of occasions that when he obtained the report from Mr Anstee, he must have known that it was supportive of the plaintiff’s claim and that she had a viable (if not good) case. Similarly, it was put that the failure to warn aspect of the claim was always (to his knowledge) strong. Mr Cramp did not accept these propositions. There were difficulties associated with the plaintiff’s underlying history[68] and I suspect no competent plaintiff’s practitioner would quickly have leapt to the conclusion that the failure to warn claim was a strong one. So far as Mr Anstee answering a question in the same terms as Associate Professor Marshall is concerned, one could debate at length the strengths and weaknesses of the reports of Mr Anstee and Associate Professor Marshall.[69] However, such an exercise would be unproductive in the context of this case. It suffices to say that the challenge to Mr Cramp that the earlier report of Mr Anstee was supportive and justified the issuing of proceedings[70] without the need to obtain a report from Associate Professor Marshall is not made out. Reasonable practitioners acting reasonably could form different views of these matters. I do not accept that it was unreasonable for Mr Cramp not to have relied on Mr Anstee as justifying the issuing of proceedings[71] upon the receipt of Mr Anstee’s report.
[68]As to which, see Mr Cramp’s assessment of the plaintiff as a “poor historian” in paragraph 2 of his affidavit sworn 14 November 2008.
[69]Both Associate Professor Marshall and Mr Anstee answered the question “Was the radical abdominal wall plasty necessary for the treatment of my client’s hernia or gastrointestinal problems?” in the negative. However, there is a real issue as to whether the surgery was performed because of a hernia or gastrointestinal problems. The relevant consent form (Exhibit B) discloses the reason for the surgery as “Tummy tuck”. It was not unreasonable for Mr Cramp to be cautious about the utility of Mr Anstee’s answer to this question.
Associate Professor Marshall and Mr Anstee were each asked 12 questions. A full reading of both reports discloses significantly more favourable answers (so far as the plaintiff’s case is concerned) from Associate Professor Marshall to questions 5, 8, 9 and 11.
[70]Or, more correctly, the preparation of a statement of claim and the service of the County Court proceeding on the defendants.
[71]Or, again, more correctly, the preparation of a statement of claim and the service of the County Court proceeding on the defendants.
As to prejudice, there is undoubtedly prejudice of a general kind having regard to the elapse of time since the events giving rise to the plaintiff’s causes of action occurred. However, I should note that neither defendant swore an affidavit (or had an affidavit sworn on their behalf) identifying any specific difficulty associated with impaired recollections or a lack of notes or medical records. Whilst the first defendant attempted to demonstrate specific prejudice by reference to an inability to find a doctor (Dr Kerr) who is recorded on the operation note of 8 January 2002 as an assistant, ultimately the evidence did not rise as high as establishing that Dr Kerr could not be found.[72] Even if Dr Kerr is ultimately unable to be found for the trial of this proceeding, there is no evidence as to the significance of the evidence she might be able to give.[73] Certainly, the second defendant does not say that he is prejudiced in any way because of any inability to locate this doctor. In the light of these matters, the first defendant abandoned any allegation of actual prejudice caused by the difficulty in locating this doctor.[74]
[72]See the cross-examination of Ms Jane Fiske and her second affidavit sworn 17 April 2009.
[73]Indeed, there was no evidence of what specific evidence it was alleged Dr Kerr could give. Dr Kerr appears to have become relevant for the purposes of this application only because she is noted as an assistant on the operation note of 8 January 2002.
[74]Paragraph 16(b) of the first defendant’s outline of submissions dated 16 April 2009 was deleted during final addresses.
Sections 27L(1)(c) to (e) do not have a great bearing on this application. Whilst some of the second defendant’s records were not obtained by Mr Cramp until 2005, there is no suggestion that the first and second defendants did anything other than to respond appropriately to the requests made of them for the provision of information. The duration of any disability[75] or legal incapacity (s 27L(1)(d)) is of no great moment in this case. What is considerably more important is the nature and extent of the plaintiff’s loss (s 27L(2)(b)). In this case, this is significant, both in terms of pain and suffering and serious cosmetic disfigurement.[76] In her affidavit,[77] the plaintiff describes her injuries as follows:
“I continue to suffer from significant problems as a result of the operation. I have a large, ugly and very tight scar across the lower part of my abdomen. I am in constant pain due to the scar and the pulling effect from the scar. The scar has an area of about ten inches by ten inches. The tightness of the scar limits most physical activities and makes some almost impossible. Both my walking and sitting is difficult and painful. … The scar is very sensitive to touch. … I also suffer from depression and become more depressed when I have increased pain. I take about eight Panamax for the pain daily, and take Valium for my depression.”
This description was not challenged by the defendants. As I have said above, the issue of discoverability is not of great significance in this case. This is not a case where the causes of action were not discoverable until years after the events on which they are based occurred. The issue of discoverability in this case only has the capacity to change the dates by a matter of a few months.
[75]In the sense of whether the plaintiff is a person under a disability (being a minor or a person of unsound mind): cf s 3(2) of the Limitation of Actions Act. It is to be noted that in this case the plaintiff is neither a person to whom s 3(2), nor a person to whom s 27J, has any application.
[76]Particularly graphic colour photographs are exhibited to Mr Cramp’s affidavit sworn 14 November 2008 as part of Associate Professor Marshall’s report dated 2 October 2007.
[77]Sworn 27 November 2008 at paragraph 14.
Sections 27L(1)(f) and (g) are more significant in this case. These matters tell in favour of the plaintiff. The plaintiff went to a solicitor in Queensland shortly after being told by the Queensland GP that she should consult a solicitor. Upon her return to Victoria, she consulted Mr Cramp.[78] She put her affairs in his hands and there is no suggestion that she did not follow his advice. The summary of Senior Counsel for the plaintiff[79] is a fair one.
[78]The plaintiff returned to Victoria on 28 March 2004 and first saw Mr Cramp on 18 May 2004.
[79]Set out in paragraph 36 above.
In addition to the potential claim the plaintiff has against her current solicitors, the second defendant raises a further matter not specifically referred to in s 27L. Following the dismissal of the plaintiff’s application before Judge Wodak, the solicitors for the second defendant wrote to the solicitors for the plaintiff advising that they assessed their costs at $1,738. The letter required payment within 14 days, failing which the second defendant said he would proceed to taxation. There is no evidence of any taxation having occurred. However, the second defendant relies upon the fact of failure by the plaintiff to pay the costs of the dismissed County Court proceeding as a matter which might cause this Court to stay the present proceeding.[80] This matter is then relied upon as one to be taken into account in the exercise of the Court’s discretion under s 27L. I regard the matter as one of extremely limited relevance. The second defendant has not taxed his costs of the County Court proceeding. There is no suggestion that the plaintiff would not pay those costs if they were taxed.[81] Even if the second defendant could establish an entitlement to a stay, any such stay would only be until the costs[82] were paid.[83]
[80]See generally Phillip Morris Limited v Attorney General (2006) 14 VR 538 at paragraphs [88] to [101], [145] to [149], [152] and [155].
[81]There is no evidence one way or the other.
[82]$1,738, or perhaps some lesser amount as taxed.
[83]Boase v Jones [1925] VLR 465.
Synthesising all of the matters required to be taken into account by s 27L and the additional matters argued by the defendants, I have formed the view that it is just and reasonable to extend the period of limitation applicable to the causes of action upon which the plaintiff relies to the date upon which the writ was issued, namely 8 July 2008. I have formed this view looking at the delay from 8 January 2002 until 14 November 2008 and on the basis that the plaintiff’s causes of action were discoverable in early July 2002. However, I have also considered the matter on the basis that the plaintiff’s causes of action were discoverable prior to her discharge from the hospital following the surgery. If I had found that the plaintiff’s causes of action were discoverable in January 2002, I would have come to the same conclusion that it is just and reasonable to extend the period of limitation. In the ordinary course, one would expect this proceeding to come on for trial in approximately 12 to 18 months. This would result in a trial occurring some eight to nine years after the events giving rise to the proceeding. Whilst this timeframe is not ideal, it has become commonplace for cases against medical practitioners and hospitals (involving allegations of failure to warn and/or inappropriate treatment) to be heard within similar timeframes. Experience suggests that these cases ordinarily proceed satisfactorily. There is nothing in the material in this case to suggest that this case is different from those cases. The delay in this case has not prejudiced a fair trial of the plaintiff’s claims.[84] The plaintiff has not acted unreasonably. Save for the mistake made by Mr Cramp in October 2007 (which I have dealt with above), his conduct has not been unreasonable. In all the circumstances, it is just and reasonable to extend the period of limitation until 8 July 2008.
[84]Cf s 27L(2)(a).
Conclusion
It follows for the reasons given above that there will be an order extending the period of limitation applicable to the causes of action pleaded in the plaintiff’s statement of claim[85] to 8 July 2008. I will hear the parties on the question of costs.
[85]Including, if necessary, the amendment foreshadowed at T14.28 – T15.2.
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