Donmez v Neissa
[2012] VSC 73
•6 March 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 10424 of 2008
BETWEEN
| SIRIN DONMEZ | Plaintiff |
| and | |
| DR ANDY NEISSA | First Defendant |
| and | |
| WESTERN REGION HEALTH CENTRE LIMITED | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23 February 2012 | |
DATE OF JUDGMENT: | 6 March 2012 | |
CASE MAY BE CITED AS: | Donmez v Neissa & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 73 | |
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LIMITATION OF ACTIONS – Negligence – Dentist – Plaintiff suffering neck injury as result of dental procedure – When cause of action discoverable under s 27F of Limitation of Actions Act 1958 – Burden of proof of defence – Whether limitation period should be extended, if action statute barred – Limitation of Actions Act s 27K.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Eidelson | Aaron Eidelson |
| For the Defendant | Mr N Murdoch | Minter Ellison |
HIS HONOUR:
The first defendant is a dentist. At the times which are relevant to these proceedings, he was employed by the second defendant at its dental clinic in Footscray. In these proceedings, commenced by general endorsed writ on 18 December 2008, the plaintiff claims damages against the defendants for personal injury, arising out of dental treatment by the first defendant on 23 December 2004. In their defences, each defendant has pleaded that the proceeding is barred by s 27D(1)(a) of the Limitation of Actions Act 1958 (Vic) (“the Act”). The applications which are before me raise the questions, first, whether the proceeding is statute barred, and, secondly, if so, whether an order should be made, pursuant to s 27K of the Act, extending the period of limitation applicable to the plaintiff’s cause of action.
The application
The application was initiated by a summons issued by the defendants, seeking summary judgment for the defendants pursuant to Rule 23.03 of the Supreme Court Rules. In response, the plaintiff filed a summons, seeking a declaration that her claim for damages is not statute barred, and, alternatively, an order extending the period of time applicable to her cause of action. It was agreed by counsel that the first question, namely, whether the action is statute barred, should be dealt with in accordance with the plaintiff’s summons, pursuant to Rule 47.04 of the Supreme Court Rules, which enables that question to be tried before the trial of the proceeding.
Such a procedure has now been used, on a number of occasions, where the issues, which are before me, have been raised.[1] The disadvantage to the procedure is that, logically, the issues of liability, causation and damage precede the question as to whether a cause of action is statute barred. Thus, resort to the preliminary procedure may present some difficulty where, as in fact occurred in this case, the defendant puts in issue the injury alleged by the plaintiff. A decision as to whether a cause of action is statute barred, under s 27D, is based on an assumption that the plaintiff has suffered the injury alleged.
[1]Spandideas v Vellar [2008] VSC 198, [21].
On the other hand, it has been recognised, in a number of cases, that the procedure is particularly convenient and practical. If the plaintiff’s claim is statute barred, and if the plaintiff is not entitled to an extension of the period of limitation applicable to the cause of action, it is in the best interests of the parties that that question be determined first, without the parties being subjected to the cost and inconvenience of the trial of the action. Furthermore, it is not, generally, practicable to determine at trial whether a plaintiff’s action is statute barred, where the trial is to proceed before a jury. In addition, it is important that if the plaintiff needs to apply for an extension of the period of limitation pursuant to s 27K, that that application be heard and determined before trial. It is only necessary to determine an application for an extension, if the plaintiff’s claim is otherwise statute barred.
It is for those reasons that, notwithstanding its disadvantages, it is recognised that the procedure, adopted in this case, is appropriate, and indeed convenient, to enable the parties to litigate, before the trial of the action, the question whether the action is statute barred. I shall therefore direct that the question raised by paragraph 11 of the defence of the first defendant, and by paragraph 12 of the defence of the second defendant, be tried before a judge alone, before all other questions in the proceeding.
The Plaintiff’s Claim
Before turning to the first issue, it is convenient, first, to set out the substance of the plaintiff’s claim. On 23 December 2004, the plaintiff attended at the second defendant’s clinic for diagnosis and treatment of tooth pain. Her treatment was undertaken by the first defendant. The plaintiff alleges that in the course of that treatment, her left molar, which was the source of her pain, was removed, but that, in addition, the tooth adjacent to it was also damaged. The plaintiff further alleges that she was required to remain in the dental chair, with her head held by a dental nurse in an extended position, for a prolonged period of time, while her tooth was being removed. As a consequence, she has suffered damage to the tooth adjacent to the tooth which was removed, and an injury to the neck, including facet joint synovitis caused by the prolonged extension of her neck during the procedure. The plaintiff alleges that her injuries were caused by the negligence of the first defendant in the course of his employment with the second defendant.
FIRST ISSUE: IS THE PLAINTIFF’S CLAIM STATUTE BARRED?
The first question, then, is whether the claim by the plaintiff is barred by s 27D(1) of the Act. That section comes within Part 2A of the Act, which applies to claims for damages in respect of personal injury of the kind made by the plaintiff in this case. Section 27D(1) 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 three years from the date on which the cause of action is discoverable by the plaintiff;
(b)the period of twelve months from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.”
Section 27F defines when, for the purposes of s 27D(1)(a), a cause of action is discoverable. Section 27F 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.”
In essence, the plaintiff’s case, in respect of the question whether her claim is statute barred, is that, although she was aware that, following the dental procedure in December 2004, she suffered ongoing neck pain, nevertheless she was not aware, until 2008, that she had suffered a physical injury to her neck, and that that injury had been caused by the first defendant’s treatment of her during the dental procedure.
The Evidence
The plaintiff, and her son Ozgur Donmez (“Ozgur”), each swore an affidavit in support of her application, and they were cross-examined. The defendants’ solicitors filed two affidavits, exhibiting a number of medical reports and medical records, to which I shall later refer.
In her affidavit, the plaintiff set out, in some detail, matters relating to her background. She was born in November 1956 in Turkey. She states that her family, and she, were subjected to mistreatment at the hands of the authorities in Turkey, because of their involvement in political affairs. The plaintiff married at the age of 16 years, and has four children. In October 2003, she came to Melbourne on a tourist visa, in order to look after her son, Ozgur, who had suffered a serious back injury in a workplace accident. Ozgur was wheelchair bound for more than four years as a result of that injury. After the plaintiff arrived in Melbourne, she applied for a protection visa.
The plaintiff attended the dental surgery of the second defendant on 23 December 2004, having been referred to it by the Asylum Seekers Assistance Scheme conducted by the Red Cross. After the first defendant examined her tooth, he decided that it needed to be extracted. The extraction of the tooth took more than one hour, during which her neck was forcibly extended by the nurse assisting the first defendant. In cross-examination, the plaintiff stated that, during the procedure, she suffered severe pain in the neck, which she likened to the pain of childbirth. She tried to signal to the first defendant to stop, but he did not do so. Accordingly, she communicated her discomfort to the first defendant by grasping his wrist. After a short break, the first defendant continued in his treatment of her. In doing so, he not only extracted the infected tooth, but he also caused damage to the tooth immediately adjacent to it.
In cross-examination, the plaintiff’s evidence was confused as to whether, after the procedure, she continued to suffer neck pain. In a later part of her cross-examination, it emerged that, at some points, when she had been referring to headaches, she was intending to thereby convey pain to the back of the neck. In his evidence, Ozgur explained that that part of the neck was normally referred to as part of the head in the Turkish language. However, ultimately it would seem that the plaintiff’s evidence was that she continued to suffer from persistent neck pain, from the date of the dental treatment, until she consulted an orthopaedic surgeon, Mr Chris Haw, in March 2008. The plaintiff’s evidence, to that effect, is consistent with the description of the history of her symptoms, which she has given to a number of doctors over the last two years. I accept that, notwithstanding the confusion in her evidence in cross-examination, the plaintiff was endeavouring to convey to me that, throughout that period, she had suffered from neck pain.
The plaintiff’s evidence, as to other symptoms suffered by her, was also quite confusing. However, it would seem that following the dental treatment, she was in severe pain, and she remained in bed for four days. She commenced to suffer from pain in her right shoulder and arm, which radiated to her hand.
In the meantime, she also suffered from pain in the socket of the tooth, which had been removed. She returned to the second defendant’s clinic on three occasions for further treatment. In doing so, she insisted that she be attended by a different doctor than the first defendant. In cross-examination, she stated that she was upset with the first defendant, because he had not only broken her good tooth, but he had lied to her, by telling her that a small piece of material, in her mouth, was a loose filling, and not part of the broken tooth. She further agreed, in cross-examination, that, in February 2005, she had thought that the first defendant had done a bad job, and that he had badly handled the dental procedure performed on her.
In her affidavit, the plaintiff stated that she attended on Dr Karen Linton, a general practitioner, on 1 April 2005, concerning her neck pain. The plaintiff had attended on Dr Linton, on referral by the Red Cross, on two previous occasions before that date. In her affidavit, the plaintiff stated that on 1 April 2005, she complained to Dr Linton about the pain in her neck and shoulder. Dr Linton moved the plaintiff’s head up and down, and told her that the pain was stress related. The plaintiff stated that she also complained to Dr Linton of headaches, and Dr Linton said that they, too, were also stress related. Dr Linton told her that it was not unusual for people, with the plaintiff’s background, to suffer stress, and that it was stress, which was causing pain in her neck and shoulder. At that time, the plaintiff was dealing with a number of issues, which were causing her stress, including the injury sustained by her son, the major change in her life by moving to Australia, the insecurity of her status as an asylum seeker, personal relationship issues within her marriage and her family, and financial issues.
In cross-examination, the plaintiff stated that, although the pain in her neck persisted, she did not seek, during the next three years, to be referred to any other specialist or doctor for further diagnosis or treatment. In fact, during that period she was referred, by Dr Linton, to three specialists, for treatment of other unrelated conditions. She said that the pain in the neck had deteriorated, and that it was becoming difficult to move her neck.
In March 2008, the plaintiff accompanied her son, Ozgur, to an appointment which he had with Mr Chris Haw, an orthopaedic surgeon. At the end of that consultation, she asked Mr Haw to examine her neck. Mr Haw undertook an examination of her neck, and he told her that the pain to the neck was the result of an injury to it, and that she needed an x-ray. After the x-ray had been performed, Mr Haw told the plaintiff that she had an injury to the neck. When the plaintiff described to him how she had initially developed the pain, Mr Haw concluded that her neck injury had been caused by the treatment given to the plaintiff by the first defendant on 23 December 2004. In cross-examination, the plaintiff stated that it was then that she realised that the injury to her neck, and related problems, were caused by the dental procedure in December 2004. As a result of Mr Haw’s diagnosis, the plaintiff consulted solicitors, and, as I stated, these proceedings were issued in December 2008. They were served on the second defendant on 4 December 2009, and on the first defendant on 28 May 2010.
The plaintiff’s son, Ozgur Donmez (“Ozgur”), also swore an affidavit, and he was cross-examined. Ozgur was present when the first defendant conducted the dental procedure on the plaintiff on 23 December 2004. He confirmed that, during that procedure, which lasted for more than an hour, the plaintiff’s head and neck were pushed back in an extended position, with pressure being placed to the plaintiff’s neck. The plaintiff was in considerable discomfort. Ozgur stated that, subsequently, he was in attendance at the plaintiff’s appointments with a number of medical practitioners, and he acted as a translator for her. During one such appointment, Dr Linton told the plaintiff that it was common for people of the plaintiff’s background to be stressed and traumatised, and that that trauma and stress had caused the physical ailments, discomfort and pain of which the plaintiff was complaining.
In cross-examination, Ozgur stated that, during the four years following December 2004, he thought that his mother’s neck pain was caused by stress. The plaintiff was complaining about the pain, and she was told by the doctor that it was due to stress. At that time, the plaintiff was very depressed, because her refugee status was in doubt, since she had had tuberculosis in the past, and she had to be checked as to whether she was still carrying the disease. In addition, the plaintiff’s family were experiencing difficulties in Turkey, because the police kept visiting their home in order to check whether the plaintiff had returned. Ozgur was then responsible for the plaintiff, but he was in a wheelchair. Ozgur stated that, on one occasion, he had to call the ambulance to take the plaintiff to hospital, because she was suffering severe headaches and depression. On another occasion, he took her to the emergency section of the Western Hospital, because of the severity of her neck pain. The doctor checked the plaintiff’s condition, and told her that she was not suffering from an injury, but that her pain was due to stress.
The defendant’s solicitor, Ms Alice Atkins, swore an affidavit, exhibiting the reports of a number of doctors, and dentists, who have attended upon the plaintiff over the last two years. The defendants relied on those reports to demonstrate a number of matters relating to the account given by the plaintiff of the circumstances of her treatment on 23 December 2004, and of her symptoms since. In particular, the materials demonstrate that the plaintiff knew, in the course of the dental procedure, that she was suffering from excruciating neck and shoulder pain, which resulted from her head being held forcibly in an extended position for a lengthy period of time. The plaintiff also told the medical practitioners, who examined her, that the pain in her neck had persisted since that procedure. In the course of the procedure, the plaintiff complained to the dentist about her unbearable pain, but he did not desist.
The defendant also put in evidence a medical report provided by Dr Linton to the plaintiff’s previous solicitors, together with a copy of the Western Region Health Centre Medical Records, which include the records of attendances by the plaintiff on Dr Linton. In her report, Dr Linton summarised a series of attendances by her on the plaintiff between 14 February 2005 and 27 October 2006. Dr Linton’s report, and the medical records of the second defendant, do not refer to any attendance by the plaintiff on Dr Linton, or indeed on any other medical practitioner employed by the second defendant, in respect of injury, or pain, to her neck. The medical records contain the progress notes of Dr Linton. They record an attendance on 1 April 2005, in respect of which Dr Linton recorded a complaint relating to tinnitus, and relating to constipation from which the plaintiff suffered. It also contained the following note: “Right shoulder pain – difficulty lifting”. The note further records, as the reason for the visit “Right rotator cuff syndrome”.
Submissions
Mr N Murdoch, who appeared on behalf of the defendant, submitted, first, that I should not be satisfied that the plaintiff suffered injury to her neck, as a result of the dental procedure conducted by the first defendant in December 2004. In particular, he submitted that I should reject the evidence of the plaintiff, and of her son Ozgur, that she suffered ongoing pain in the neck between December 2004 and her consultations with Mr Haw in 2008. Mr Murdoch submitted that the plaintiff’s account, that she suffered persistent neck pain, was inconsistent with the lack of any recorded complaint to that effect to Dr Linton, or to any other practitioner at the Western Region Health Centre. Mr Haw’s opinion, that the plaintiff’s current neck condition was caused by the dental procedure in December 2004, was based on the history of ongoing pain given to him by the plaintiff. Mr Murdoch submitted that, accordingly, I should not be satisfied that the plaintiff suffered injury to her neck, as a consequence of the dental procedure in December 2004.
Mr Murdoch submitted, further, that, if I am satisfied that the plaintiff suffered neck injury as a result of the dental treatment in December 2004, I should conclude that the plaintiff knew, or ought to have known, each of the three matters, specified in s 27F(1)(a)-(c), more than three years before the issue of these proceedings in December 2008. Mr Murdoch submitted that the plaintiff knew, at the least, that, as a result of the dental procedure, she had suffered damage to the tooth, which was adjacent to the tooth extracted by the first defendant. Mr Murdoch contended that, for the purposes of s 27F(1)(a) and (b), it is not necessary that the plaintiff knew, or ought to have known, of all the injuries sustained by her. Rather, he submitted it is sufficient that the plaintiff knew, or ought to have known, of at least one of the injuries, in respect of which she claims damages. Accordingly, Mr Murdoch submitted that the plaintiff knew of the fact that she had suffered personal injury, and the fact that that injury had been caused by the mismanagement of her dental procedure by the first defendant, for the purposes of subparagraphs (a) and (b) of s 27F(1).
Mr Murdoch submitted, further, that, in any event, if the plaintiff did suffer neck injury as a consequence of the dental treatment in December 2004, she was aware of the fact of that injury from the date of the dental procedure. He submitted that it is not necessary, for the purposes of s 27F(1), that the plaintiff knew the precise nature, or medical description, of the injury. It is sufficient that she knew that she had neck pain caused by the first defendant. In that respect, Mr Murdoch relied on the evidence of the plaintiff that, since the date of the treatment, she had suffered ongoing pain to the neck. He submitted that I should infer that she was thus aware, throughout the succeeding period, that she had suffered injury to her neck, as a result of being required by the first defendant to assume a posture, with her head forcibly extended, for a period of one hour, during the dental procedure.
Mr Murdoch accepted that, on current authority, the word “fault”, in s 27F(1)(b), bears its ordinary and natural meaning, namely, an act or an omission, to which some culpability or blame attaches.[2] He referred to the evidence of the plaintiff, in cross-examination, that she was dissatisfied with the manner in which the first defendant had conducted the dental procedure on her, and that she considered that he had done it badly. Thus, he submitted that, from that time, the plaintiff was aware that any injury, sustained by her arising from that procedure, was caused by the “fault” of the first defendant.
[2]Spandideas v Vellar [2008] VSC 198, [19]; Delai v Western District Health Service & Anor [2009] VSC 151, [14]. (Beach J).
Mr Murdoch conceded that I would not be satisfied that the plaintiff knew, or ought to have known, of the matters specified in subparagraph (c) of s 27F(1), if I accepted the evidence of the plaintiff that she consulted Dr Linton on 1 April 2005 concerning her neck pain, and that, at that consultation, Dr Linton advised her that the neck pain was caused by stress. Mr Murdoch acknowledged that, if I accepted that evidence, the plaintiff would not have known, nor ought she to have known, that her neck pain was caused by the treatment of the first defendant, (for the purposes of subparagraph (b)) and that therefore her personal injury, caused by the defendant, was sufficiently serious to justify in bringing an action (for the purposes of subparagraph (c)). However, Mr Murdoch submitted that I should not accept the evidence of the plaintiff in relation to her attendance on Dr Linton on 1 April 2005. In particular, he submitted that the plaintiff’s evidence, that she reported the neck injury to Dr Linton on that date, and that Dr Linton examined it and gave her a diagnosis concerning it, is inconsistent with the medical notes of Dr Linton, which are in evidence. Mr Murdoch submitted that those notes are quite thorough, and that the absence of any reference in them to the neck injury is particularly significant, given that Dr Linton did, specifically, examine, and make a diagnosis about a rotator cuff injury to the plaintiff’s right shoulder.
Mr Murdoch submitted that, if I were not satisfied that the plaintiff did consult Dr Linton concerning her neck injury on 1 April 2005, then, on the evidence of the plaintiff, she did not seek any medical advice concerning her ongoing complaint of neck injury until she consulted Mr Haw in 2008. During that period, the plaintiff had access to the Western Region Medical Centre, and, on some occasions, she had been referred, by that Centre, to specialist medical practitioners in relation to unrelated problems. In those circumstances, Mr Murdoch submitted that the plaintiff ought to have known of the matters specified in subparagraph (b) and (c) of s 27F(1).
In response, Mr Eidelson, who appeared on behalf of the plaintiff, submitted that I should be satisfied that, until the plaintiff consulted Mr Haw in 2008, she only knew that she suffered from pain to the neck. It was not until Mr Haw diagnosed her injury, that she knew that she had an injury to the neck, and that that injury had been caused by the treatment given to her by the first defendant in December 2004. Mr Eidelson submitted that I should accept the evidence of the plaintiff that, from December 2004, she suffered neck pain on an ongoing basis. He submitted that the absence of any specific reference to any complaint of neck pain, in the notes of Dr Linton and of the Western Region Medical Centre, did not contradict the fact that the plaintiff had reported that condition to the doctor and to the centre. In particular, he referred to the entries in the medical notes of reports of headache. He pointed to the confusion, in the evidence of the plaintiff, when she described pain in the back of her neck as “headache”. He submitted that the notations in the medical records, of headache, may well have been similarly affected by the same misdescription of the plaintiff’s complaint to the doctor.
Mr Eidelson also submitted that, in determining what knowledge the plaintiff ought to have had, of her injuries, during the relevant period, I should take into account the difficult circumstances in which the plaintiff was then placed. She was a refugee, who had had a quite traumatic life in Turkey. At the time, with which this case is concerned, the plaintiff’s son was suffering from a severe injury, and the plaintiff was coping with other medical and family issues. He submitted that, in determining what the plaintiff ought to have known at that time, I should take into account the plaintiff’s particular circumstances.[3]
[3]Compare Spandideas v Vellar (above), [65].
Mr Eidelson further submitted that I should accept the evidence of the plaintiff concerning her attendance on Dr Linton on 1 April 2005. He submitted that the plaintiff’s evidence was supported by her son, and that it was not put, to her son, in cross-examination, that he was not telling the truth about that matter.
Analysis
In determining the first issue, namely whether the proceeding is statute barred, it is important to identify, at the outset, which party bears the legal onus of proof. A plea based on the statute of limitations is not a denial of an essential ingredient of a cause of action. Rather, it is a plea by way of confession and avoidance of the plaintiff’s claim. It follows that the legal onus rests on the defendant to prove that the plaintiff’s claim is barred under s 27D(1) of the Act.[4] Mr Murdoch accepted that the defendants bear the legal onus of proof in relation to the first issue raised on this application.
[4]See Pullen & Anor v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27, 72-76 (Brooking, Tadgell and Hayne JJ); see also Currie v Dempsey (1967) 69 SR(NSW) 116, 125 (Walsh JA); Stewart v Dillingham Constructions Pty Ltd [1974] VR 24, 28 (Winneke CJ, Little and Stephen JJ).
Thus, it follows that, in order to establish the defence, pleaded by the defendants, under s 27D(1) of the Act, the defendants must prove, on the balance of probabilities, that the plaintiff knew, or ought to have known, before 18 December 2005, each of the three matters specified in s 27F(1)(a)-(c). The legal onus of proof should not, of course, be confused with the evidential onus[5], which may well require that, in a case such as this, the plaintiff introduce evidence as to what he or she knew, or ought to have known, in relation to each of the three matters specified in s 27F(1). However, in determining this application, it is necessary to bear in mind that the legal onus of proof, in relation to each of those matters, rests on the defendant.
[5]Purkess v Crittenden (1965) 114 CLR 164, 468 (Barwick CJ, Kitto and Taylor JJ).
The first submission by Mr Murdoch was that I should not accept the plaintiff’s evidence that she suffered ongoing neck pain between the date of the dental treatment and when she saw Mr Haw, and therefore I should reject the opinion by Mr Haw that the plaintiff’s neck injury was caused by that treatment.
It is not clear how that question arises on the application which is before me. The question, whether the plaintiff’s cause of action is statute barred, would only arise, on the assumption that a jury were satisfied that the plaintiff did suffer the relevant injury as a consequence of the negligent treatment of her by the first defendant. As I have already stated, a defence under the statute of limitations is a plea by way of confession and avoidance. Logically, the issues of liability, causation and injury are anterior to the issue of limitations. The procedure, of determining whether a cause of action is statute barred, by way of preliminary determination, while convenient, does involve a degree of artificiality. I do not understand that, in the context of the first question, which I must decide, it is relevant to determine, whether the plaintiff did suffer the injury to her neck as a result of the treatment of her by the first defendant. Rather, the question is whether, if the plaintiff did suffer that injury as a result of negligent treatment of her by the first defendant, the plaintiff’s cause of action in respect of that injury is statute barred.
Thus, the submission by Mr Murdoch could only be relevant if it went so far as to involve the proposition that, when the plaintiff attended Mr Haw in 2008, she knowingly misled Mr Haw by untruthfully stating to him that she had had continual neck pain since the first defendant’s dental treatment on 23 December 2004, and that, accordingly, she knew that Mr Haw’s opinion, that her neck injury was caused by the first defendant’s dental treatment, was based on a false premise. However, it is clear that Mr Murdoch’s submission did not involve that proposition. Although Mr Murdoch did, in cross-examination, suggest to the plaintiff that she did not have neck pain between April 2004 and 2008, he did not, in any way, put to the plaintiff that she had knowingly misled Mr Haw, in the manner I have just described, when she consulted him in 2008. Nor did Mr Murdoch cross-examine the plaintiff to the effect that she knew, in 2008, that Mr Haw’s opinion, as to the cause of her injury, was incorrect. There is no basis for me to make any finding to that effect. To the extent that it is necessary for me to do so, for the purposes of the present application, I am satisfied, on the evidence, that the plaintiff did suffer from ongoing neck pain between the date of her dental treatment and when she saw Mr Haw, and I am satisfied that she did not consciously mislead him as to that fact.
Mr Murdoch next submitted that, even if the plaintiff was not aware that her neck injury had resulted from the treatment given to her by the first defendant on 23 December 2004, nevertheless she was aware, at the time of that treatment, that the first defendant had caused her personal injury, by breaking the tooth, which was adjacent to the tooth which the first defendant was extracting. Further, in cross-examination the plaintiff accepted that, at that stage, she knew that the defendant had not carried out the procedure with appropriate care. Thus, Mr Murdoch submitted that, on any view, the plaintiff knew of the facts referred to in subparagraphs (a) and (b) of s 27F(1) on, or shortly after, 23 December 2004.
The submissions made by Mr Murdoch raise the question whether, in order that subparagraph (a) and (b) of s 27F(1) apply, it is sufficient that the plaintiff knew (or ought to have known) of the fact that he or she had suffered an injury, even if that injury was not the principal injury in respect of which the plaintiff seeks damages. In support of such a construction, Mr Murdoch pointed, first, to the plain language in which s 27F(1) is expressed. Further, he also relied on the basic principle that, at common law, a plaintiff must seek damages in respect of all his or her injuries, so that, in that way, a plaintiff’s injuries are not divisible.[6]
[6]Todorovic v Waller (1981) 156 CLR 402, 412 (Gibbs CJ, Wilson J); Djordjevic v Australian Iron and Steel Limited (No 2) [1966] 2 NSWR 634, 638 (Jacobs JA).
It is not necessary for me to decide the issue raised by Mr Murdoch. For, if Mr Murdoch’s submission is correct, nevertheless, clearly, the defendants would not establish the facts required to be proven under s 27F(1)(c), unless the defendants are able to prove that the plaintiff knew or ought to have known that, before December 2005, that she had suffered a neck injury, and that that injury had been caused by the dental treatment which she received from the first defendant on 23 December 2004. The knowledge of the plaintiff, that she had suffered a broken tooth as a result of the negligence of the first defendant, would not, of itself, be sufficient to establish the facts referred to in 27F(1)(c). In those circumstances, it is undesirable that I express any view on the question of construction raised by Mr Murdoch, particularly as Mr Eidelson did not present any argument in response to it.
The critical question is whether the defendant has satisfied me, on the balance of probabilities, that the plaintiff knew, or ought to have known, before 18 December 2005, that she had suffered a neck injury, and that that injury had been caused by the treatment of her by the first defendant. The resolution of that issue depends, in particular, on whether I accept the evidence of the plaintiff concerning her attendance on Dr Linton on 1 April 2005.
Clearly, if the plaintiff, on that date, consulted Dr Linton concerning her neck injury, and was advised by the doctor that the injury was stress related, the plaintiff would not have known, nor ought she to have known, that she was then suffering from a neck injury caused by the treatment of her by the first defendant on 23 December 2004. Thus, the resolution of the first issue depends, substantially, on the question whether I accept the evidence of the plaintiff, and her son, that on 1 April 2005, she consulted Dr Linton about her neck pain, and was advised, by the doctor, that it was caused by stress.
That factual issue is not easy to resolve. On the one hand, the matters relied on by Mr Murdoch are quite persuasive. The notes of Dr Linton, on 1 April 2005, do not contain any reference to a complaint of neck injury. Nor do they refer to any examination by Dr Linton of the plaintiff in relation to such a complaint, or any diagnosis by her in respect of it.
In her affidavit, the plaintiff stated that she consulted Dr Linton, on that date, concerning pain to her neck and shoulder. She said that Dr Linton attributed that pain to stress, and that Dr Linton, in subsequent appointments, “repeatedly assured” her that there was nothing wrong with her neck and shoulder.
Two points of significance arise from that evidence. First, in cross-examination, the plaintiff stated that the only occasion upon which she consulted Dr Linton about her neck problem was on 1 April 2005. In cross-examination, the plaintiff stated that she did not see any other doctor concerning her neck injury between consulting Dr Linton on 1 April 2005 and seeing Dr Haw in March 2008. The plaintiff explained that she did not seek any referral to a specialist in relation to her problem, because she believed what Dr Linton had told her that the pain from her neck was due to stress. The second difficulty with the account given by the plaintiff is that it is apparent, from Dr Linton’s notes, and from her medical report, that Dr Linton did not diagnose the plaintiff’s complaint of shoulder injury as being due to stress; rather, she diagnosed it as a rotator cuff injury.
It was suggested, in argument by Mr Eidelson, that the note by Dr Linton of the plaintiff’s complaints concerning her shoulder pain may have been the product of the difficulty of communication between the plaintiff, who intended to refer to her neck, and the doctor, who understood the complaint to relate to her shoulder. However, that explanation is unlikely. First, as I stated, in her affidavit, the plaintiff stated that she had complained to Dr Linton about both neck and shoulder pain. Secondly, it is unlikely that a doctor could have misunderstood a complaint of a neck injury, with the type of complaints which are necessary for a diagnosis of a rotator cuff injury.
The matters, to which I have just referred, are important. However, and on the other hand, the plaintiff has sworn, in clear terms, that, on 1 April 2005, she did consult Dr Linton about her ongoing neck pain, and that she was assured by Dr Linton that that neck pain was stress related. It was difficult to assess the credibility of the plaintiff in the witness box. She gave evidence through an interpreter, and there were obviously some difficulties involved with the translation of her evidence. There appears to have been some misunderstanding, during her cross-examination, when the plaintiff spoke of headaches, but, apparently, was referring to pain at the back of the neck. In her evidence, the plaintiff was insistent that she had consulted Dr Linton about that matter. Indeed, her evidence, at some stages, seemed quite pre-rehearsed, in that she was keen, at each stage, to state that it was only when she saw Mr Haw in 2008, that she understood that she suffered from a neck injury, and that that neck injury was caused by her dental treatment in December 2004. The plaintiff’s evidence, standing alone, was not entirely satisfactory. Nevertheless, and notwithstanding those matters, I am unable to conclude that she was deliberately untruthful in her evidence that she did consult Dr Linton about her neck pain on 1 April 2005, and that Dr Linton told her that her neck complaint was due to stress.
The plaintiff’s evidence on that issue does not stand alone. In particular, it is supported by the evidence of her son, Ozgur Donmez. In his affidavit, Ozgur deposed that he accompanied his mother to medical appointments. He was present when his mother complained of neck and shoulder pain to Dr Linton, who advised the pain as being stress related.
In cross-examination, Ozgur gave his evidence in a straightforward manner. He repeated his evidence that Dr Linton had told his mother that her problems were due to stress. In answer to a question from me, he stated that his mother was very depressed at that time, because of the doubts about her refugee status, and because of the problems which their family was experiencing in Turkey with the police. He said:
“My mother was pretty messed up, she was thinking they might send her back, and she might go to jail, and … I’m responsible for my mother, and I was in a wheelchair. My girlfriend had a fight with my mother a few times, so my mother was pretty messed up at that time.”
Ozgur proceeded, in cross-examination, to explain that, on one occasion, he had to call an ambulance to take the plaintiff to hospital, because she was suffering from severe headache and depression. On another occasion, the plaintiff and he attended the emergency department at the hospital because of her neck pain, and the plaintiff was assured that the pain was due to stress.
It is clear that, at the time at which the plaintiff states that she consulted Dr Linton, she was suffering from other medical problems. In addition, she was suffering from psychological difficulties. Indeed on 1 April, the doctor noted that the plaintiff was being treated with Avanza for tinnitus. On 26 May 2005, she consulted Dr Linton with major depression. On 24 June, she consulted Dr Linton about insomnia, which was related to her depression. On 4 November, she described a number of symptoms to Dr Linton, including that she was suffering headaches, sweats and poor sleep, and she felt she had a problem with her head which felt like an iron mask on her head and that someone was controlling her.
The plaintiff was subsequently referred by her general practitioner (Dr Luka) to Ms Semra Durmaz, a psychologist. A report of Ms Durmaz is exhibited to the plaintiff’s affidavit. Ms Durmaz diagnosed that the plaintiff suffered from a major depressive disorder which was a response to her injuries and the pain.
I am satisfied, from the evidence to which I have referred, that the plaintiff, was at the time of her consultation with Dr Linton on 1 April 2005, suffering from serious psychological problems. In addition, she had a number of ongoing, unrelated, physical ailments. It is understandable that, due to the plaintiff’s personal circumstances at the time, she was suffering from substantial stress. Thus, there was a sound foundation for a doctor, at that time, to take into account that the plaintiff was stressed. In other words, the account of the plaintiff, that Dr Linton attributed her neck pain to stress, could not be characterised as fanciful.
The critical question is whether the matters, to which I have just referred, are sufficient to overcome the point made by Mr Murdoch, namely, that there is an entire absence, in the notes of Dr Linton, of any reference of a complaint by the plaintiff of a neck injury on 1 April 2005. The notes of Dr Linton are relatively detailed. However, it is clear that they nevertheless are only a brief summary of the consultation. Further, on that date, the plaintiff consulted Dr Linton about a number of problems. It is possible, particularly given the difficulties of communication with the plaintiff, that the doctor did not understand the complaint of neck injury to be a particularly significant complaint, and accordingly, she did not note it.
The absence of such a notation, in Dr Linton’s notes, is important. However, it does not overcome the matters, to which I have already referred. In particular, as I stated, I am unable to find that the plaintiff was untruthful in her evidence that she did raise with Dr Linton her neck complaints, and that she was advised that they were stress related. The plaintiff’s son was a credible witness. The proposition, that Dr Linton considered the complaint of neck pain to be stress related, is consistent with the evidence about the plaintiff’s medical state at that time.
Based on those matters, I am satisfied, for the purposes of this application, that the plaintiff did, on 1 April 2005, speak to Dr Linton about her neck complaint, and that Dr Linton, having made a cursory examination of the plaintiff as described in the plaintiff’s evidence, diagnosed the complaint as being stress related.
As I have already stated, Mr Murdoch accepted that, if I were satisfied of those facts, it would follow that the defendant would not have established, on the balance of probabilities, that, before December 2005, the plaintiff knew, or ought to have known, that she had a neck injury which had been caused by the first defendant’s dental treatment on 23 December 2004. That concession by Mr Murdoch was correct. The plaintiff was entitled to accept, and rely on, the advice given to her by Dr Linton, at least for the further period between April and December 2005. It follows, therefore, that I am not satisfied that the plaintiff knew, or ought to have known, of the seriousness of the injury caused to her by the first defendant’s dental treatment of her on 23 December 2004. Accordingly, I am not satisfied of the facts specified in s 27F(1)(c) of the Act. It follows that, at the time at which these proceedings were issued on behalf of the plaintiff, they were not statute barred.
If, contrary to the conclusion which I reached above, I had not accepted the plaintiff’s evidence concerning her attendance on Dr Linton on 1 April 2005, the question would remain, whether the defendant had proven, on the balance of probabilities, the fact specified in s 27F(1)(c) of the Act, namely, that the plaintiff knew, or ought to have known, that her injury was sufficiently serious to justify the bringing of an action on a cause of action.
Sub-section (2) of s 27F provides:
“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.”
Thus, if I had not accepted the plaintiff’s evidence as to the consultation with Dr Linton on 1 April 2005, the defendant would have been required to establish, on the balance of probabilities, that the plaintiff would have ascertained, before 18 December 2005, that she had a neck injury, which had been caused by the dental treatment of the first defendant, if she had taken all reasonable steps before 18 December 2005 to ascertain that fact.
In the hypothetical circumstances which I have just postulated, in my view, the answer to that question would be in the negative. As I have already stated, in cross-examination, the plaintiff agreed that, in the course of the dental procedure performed by the first defendant, she suffered excruciating neck pain. That pain continued, albeit at a reduced level, throughout the period in question. Apart from her evidence that she mentioned her neck pain with Dr Linton on 1 April 2005, the plaintiff stated that she did not otherwise consult Dr Linton, or any other medical practitioner, about it, until she spoke to Mr Haw in 2008. During the period of 12 months following the dental treatment, it is clear that the plaintiff had ready access to medical advice and treatment, including from Dr Linton. In light of her evidence as to the level of pain suffered by her during the dental procedure, and the fact that she continued to suffer neck pain thereafter, I am satisfied that, if the plaintiff had taken reasonable steps, she would have consulted a medical practitioner about that pain, before December 2005.
However, the question, whether the plaintiff would, on such a consultation, have received the advice, which was given to her by Mr Haw in 2008, is more problematic. The evidence does not reveal whether the particular diagnosis made by Mr Haw, in 2008, would have been made, on a similar examination, some time earlier. It is possible that an orthopaedic surgeon, or neurosurgeon, to whom the plaintiff may have been referred during 2005, might have reached the same conclusion, particularly based on the plaintiff’s account that her neck problems commenced with the dental procedure performed by the first defendant in December 2004. However, such a conclusion would be a matter of speculation, and would not be based on evidence, on the balance of probabilities. In particular, it would appear that Mr Haw’s diagnosis, of inflammatory synovitis, was based on the plaintiff’s response to the cervical facet joint injections which were administered in October 2008. It is a matter of conjecture whether the same response would have been elicited, if such a procedure had been carried out in 2005. In the absence of any such evidence, the defendant would fail to prove the facts specified in s 27F(1)(c) of the Act. It follows that, if I had rejected the plaintiff’s evidence as to the consultation she had with Dr Linton on 1 April 2005, I would not have been satisfied, on the balance of probabilities, that the plaintiff ought to have known that her injury was sufficiently serious to justify the bringing of an action. Thus, I would have reached the same conclusion, namely, the plaintiff’s claim was not barred by s 27D(1) of the Act.
SECOND ISSUE: WOULD THE PLAINTIFF HAVE BEEN ENTITLED TO AN EXTENSION OF TIME?
In light of the conclusions, which I have reached in relation to the first issue, it is not necessary for me to determine the alternative application made by the plaintiff, for an extension of the period of limitation applicable to her cause of action pursuant to s 27K of the Act. However, in deference to the submissions by counsel in relation to that issue, I shall briefly express my conclusions in relation to it. Those conclusions would be based on the hypothesis that, contrary to the finding which I have made above, I had concluded that, before December 2005, the plaintiff ought to have known that she had a neck injury, which had been caused by the first defendant’s dental treatment on 23 December 2004.
The principles, relating to an application for an extension of time under s 27K, have been well established. Section 27K(2)(b) provides that the Court may order an extension of the period of limitation, if it decides, “that it is just and reasonable to do so”. Section 27L(1) specifies the seven matters to which the Court must (inter alia) have regard. In Tsiadis v Patterson,[7] Buchanan JA stated:
“The matters which the court is required by s 23A (which, relevantly, is equivalent to s 27K) 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.[8] Rather, the court must synthesise 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.”
[7][2001] VSCA 138; (2001) 4 VR 114, [33].
[8]Brisbane South Regional Health Authority v Taylor, above, at 549–50 per Toohey and Gummow JJ.
Of the matters specified in s 27L(1), the considerations, which are relevant to this case, are those specified in sub-paragraphs (a) (the length of and reasons for the delay); (b) (the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant); (e) (the time within which the plaintiff’s cause of action was discoverable); (f) (the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the defendant’s act or omission, which caused the plaintiff’s injury, might be capable of giving rise to an action for damages); and (g) (the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of that advice, if any, which was received).
There was some debate as to what constitutes the period of delay referred to in sub-paragraph (a). It is well established that the period, in which the delay is to be measured, commences at the time at which the plaintiff’s cause of action accrued.[9] There was, however, some dispute whether the end of that period is the time at which the proceedings were issued, or the time at which an application for extension of time was brought by the plaintiff. In this case, the plaintiff did not make her application for extension until 22 February 2012. Mr Murdoch submitted that the delay, in sub-paragraph (a), is the delay between the accrual of the cause of action and the date upon which the application for an extension of the period of limitation is made.
[9]Koumorou v State of Victoria [1991] 2 VR 265, 272 (Brooking J); Repco Corporation Limited v Scardamaglia [1996] 1 VR 7, 11 (Smith J, with whom Brooking and J.D. Phillips JJ agreed).
In Koumorou v State of Victoria,[10] Brooking J held that the delay, referred to in sub-paragraphs (a) and (b) and s 23A of the Act (which are relevantly equivalent to sub-paragraphs (a) and (b) of s 27L), is the delay “… in taking steps to enforce the plaintiff’s rights either by bringing an action for damages or by making application under the section”. His Honour’s views were approved by the Full Court in Repco Corporation Limited v Scardamaglia.[11] In Lord v Australian Safeway Stores Pty Ltd,[12] J.D. Phillips JA (with whom Tadgell JA agreed) added one qualification to that view, namely, that, in the exercise of the Court’s discretion, the Court is entitled to take into account any delay by the plaintiff in prosecuting the action, after proceedings have been issued.
[10][1991] 2 VR 265, 271.
[11][1996] 1 VR 7.
[12][1996] 1 VR 614, 616.
Based on those authorities, the delay of the plaintiff in this case was from 23 December 2004 until the issue of proceedings on 18 December 2008, a period of four years. It is clear, from the plaintiff’s evidence, that, once she learnt from Mr Haw that her neck injury had been caused by the dental treatment on 23 December 2004, she instructed solicitors to issue proceedings on her behalf. Thus, the reason for her delay, in issuing these proceedings, was because she was unaware that, in the course of the dental treatment in December 2004, she had sustained an injury to her neck.
The defendants have not filed an affidavit deposing to any particular prejudice to them in the conduct of their defence in the action. The Courts recognise that delay, and in particular lengthy delay, is liable to cause prejudice to a defendant. That is particularly so in a case such as this, where the defendant is a professional, and, on the face of it, the first defendant’s attendance on the plaintiff was quite routine. It should also be borne in mind that, as a result of delay, a defendant may suffer prejudice which is not actually apparent to the defendant.[13]
[13]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551.
On the other hand, the period of delay, in this case, was not as great as in many other cases, in which applications of this type are made. The allegations made by the plaintiff are quite specific. If the first defendant does not have a recollection of his attendance on the plaintiff, he would be entitled to rely on, and give evidence as to, his usual practice.[14] That evidence would not be as effective as evidence of a clear memory of the procedure. Nevertheless, it would, to some extent, offset any prejudice arising from the delay of the plaintiff in issuing the proceedings.
[14]Compare Eichsteadt v Lahrs [1960] QdR 487.
Balancing each of those considerations, under s 27L, if I have concluded that the plaintiff’s cause of action was statute barred under s 27D of the Act, I would have made an order, in favour of the plaintiff, extending the period of limitation applicable to the cause of action on which the plaintiff relies to 18 December 2008. In particular, the period of delay by the plaintiff was not exceptional. The reason for the delay was based on the plaintiff’s ignorance of the cause of her injury. The defendants have not suffered specific prejudice. In those circumstances, it would be just and reasonable to extend the period of limitation applicable to the plaintiff’s cause of action.
Summary of conclusions
Accordingly, I summarise the conclusions, which I have reached in this case, as follows:
(1)The claim by the plaintiff is not barred by s 27D(1) of the Limitation of Actions Act1958.
(2)If I had concluded that the plaintiff’s claim was statute barred, I would have extended the period of limitation, applicable to the plaintiff’s cause of action, to 18 December 2008.
Subject to hearing from counsel, I would propose making the following orders:
(1)Direct that the question, raised by the paragraph 11 of the defence of the firstnamed defendant and by paragraph 12 of the defence of the secondnamed defendant, be tried before a judge alone before all other questions in this proceeding.
(2)Declare that the proceeding is not barred by s 27D of the Limitation of Actions Act 1958.
I shall hear counsel on the question of costs.
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