Doyle v Gillespie
[2010] ACTSC 21
•23 MARCH 2010
HEATHER DOYLE v MICHAEL GILLESPIE
[2010] ACTSC 21 (23 MARCH 2010)
LIMITATION OF ACTIONS – extension of limitation period - solicitors to provide clear information about the steps that are required to be taken by the plaintiff to initiate proceedings.
LIMITATION OF ACTIONS – extension of limitation period – significant prejudice to proposed defendant – ‘all circumstances of the case’
LIMITATION OF ACTIONS – extension of limitation period – “duration of disability” – whether legal or physical disability.
LIMITATION OF ACTIONS - extension of limitation period – significant prejudice to proposed defendant – delay in seeking legal advice – substantial passing of time – plaintiff disability of short duration – promptness of action.
LIMITATION OF ACTIONS – extension of limitation period - possibility of action against plaintiff solicitor responsible for delays.
Limitation Act 1985 (ACT), ss 11, 100, 16B, 36, 16B(2), 36(4), 36(3)(d)
Limitation Act 1969 (NSW), ss 560E, 62B(1)
Limitation of Actions Act 1936 (SA), s 30
Limitation Act 1974 (Tas), s 38A(2)(4)
Limitation of Actions Act 1958 (Vic) ss 23A(3)(d), 27L, 23A(3), 27(1)(d)
Court Procedures Rules 2006 (ACT), rr 50(2), r 514(3), 6145, 1701(2)
Statute of Limitations 1540 (32 Henry VIII c2).
Statute of Limitations 1623 (21 James 1c 16)
J bhnf Vardanega v Australian Capital Territory [2009] ACTSC 170
Canberra Data Centres Pty Ltd v Vibe Construction (ACT) Pty Ltd [2010] ACTSC 20
Weldon v Neal (1887) 19 QBD 394
Wilkinson v Rockdril Contractors Pty Ltd [1997] 1 Qd R 560
Adam v Shiavon [1985] 1 Qd R 1
DJ v RHS & Anor (2004) 182 FLR 76
Stingel v Clark (2006) 228 ALR 229
Doe and Duroure v Jones (1791) 4 TR 301; 100 EER 1031
White v Parnther (1829) 1 Knapp 179
Cholmondeley v Clinton (1820) 2 Jac & W 1; 37 ER 527
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Archie v Archie; Smythe Third Party [1980] Qd R 546
Sessions v Phengsiaroun [2008] ACTSC 132
Noja v Civil and Civic Pty Ltd and Ors (1990) 26 FCR 95
Daroczy v BJ Engineering Pty Ltd (in liq) (1986) 67 ACTR 3
Paramasivam v Flynn (1998) 90 FCR 489
McIntosh v Southern Meats Pty Ltd (t/a Harden Abattoir) (1997) Aust Torts Rep¶ 81-424
Duff v Freijah (1982) 62 FLR 280
Lucic v Nolan (1982) 45 ALR 411
Jess v Scott (1986) 12 FCR 187
Salter Rex & Co v Ghosh [1971] 2 QB 597
Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437
Comcare v A’Hearn (1993) 45 FCR 441
Smith v Grant (2006) 67 NSWLR 735
Tolcher v Gordon (2005) 53 ACSR 442
Stollznow v Calvert [1980] 2 NSWLR 749
Nguyen v Jajic [2007] ACTSC 12
Whiteford v Ropalo Services Pty Ltd [2009] ACTSC 22
S & B Pty Limited v Podobnik (1994) 53 FCR 380
Brozinic v PHC Operations Pty Ltd t/as Hyatt Hotel Canberra [2008] ACTSC 20
Goodwin v Smith (unreported, ACTSC, Miles CJ, SC 694 of 1990, 10 December 1990)
Arnold v Commonwealth & Anor (unreported, ACTSC, Miles CJ, 1232 of 1987, 30 November 1995)
Lewis v Hillhouse [2004] QSC 311
A v D (1995) 127 FLR 372
Olejniczak v Wallaby Grip Australia Pty Limited & Ors (unreported, ACTSC, Gallop J, SC 1380 of 1988, 2 July 1993)
Peterson v Dowse Asphalt Pty Limited (unreported, ACTSC, Higgins J, SC 360 of 1994, 30 November 1994)
Morris v Fred Pty Ltd (formerly Chapman Pools and Spas Pty Ltd) & Anor (unreported, ACTSC, Higgins J 824 of 1994, 4 December 1995)
Ilovska v Kaycone Pty Ltd trading as Paragon Printing & Anor (unreported, ACTSC, Higgins J, SC 737 of 1995, 19 August 1996)
Baxter v Calagos [2009] ACTSC 133
Walla v State Transport Authority [1985] VR 327
Bell v SPC Ltd [1988] VR 123
Koumorou v Victoria [1991] 2 VR 265
Delai v Western District Health Service [2009] VSC 151
Birkett v James [1978] AC 297
Goyer v Matsukawan [1982] VR 948
McKenna v McKenna [1984] VR 665
Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7
Blackburn v Allianz Australia Ltd (2004) 61 NSWLR 532
Morrison and Anor v Judd (unreported, NSWCA, Kirby P, Meagher and Powell JSA, 10 October 1995)
Tsiadis v Patterson [2001] 4 VR 114
Andresakis and Skouteris Trading as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWLR
Dib by her tutor Dib v Regtop [2000] NSWCA 380
Bastistatos v Road Traffic Authority of New South Wales (2006) 80 ALJR 1100
No. SC 722 of 2007
Judge: Refshauge J
Supreme Court of the ACT
Date: 23 March 2010
IN THE SUPREME COURT OF THE )
) No. SC 722 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:HEATHER DOYLE
Plaintiff
AND:MICHAEL GILLESPIE
Defendant
ORDER
Judge: Refshauge J
Date: 23 March 2010
Place: Canberra
THE COURT ORDERS THAT:
Under s 36 of the Limitations Act 1980 (ACT), the period within which the plaintiff may bring an action arising out of operations performed on her by the defendant on or about 7 September 1998, 18 January 1999 and 22 January 1999 be extended to 12 October 2007.
The plaintiff pay the costs of this application.
Under r 1701(2) of the Court Procedures Rules 2006 (ACT), the costs of this application not be assessed until the proceedings for which the extension of time has been granted ends.
Heather Doyle, the plaintiff in these proceedings, began experiencing pain in her right hip about 13 years ago. She was referred by her General Practitioner to an orthopaedic surgeon in 1997 who diagnosed degenerative changes to her hip but advised that she was too young to have the hip replaced. I assume, for the purposes of this application, that Ms Doyle will be able to prove this and the facts set out below. The chronology was difficult to follow from the Statement of Claim, the Amended Statement of Claim and affidavits, but the following seems to be what is alleged.
Her hip, however, continued to hurt and she consulted the defendant, Dr Michael Gillespie. On 7 September 1998, Dr Gillespie performed surgery to replace her right hip. The surgery went well, though after discharge she continued to experience pain in her groin.
On 18 January 1999, Dr Gillespie operated on her left hip, also to replace it. This time, things did not go well and after two days she was in so much pain in her left hip that she could not walk. A subsequent x-ray showed that the hip had apparently dislocated.
On 20 January 1999, Dr Gillespie performed further surgery, to put the hip back in place it appears but that is not the subject of any claim. Later that night Ms Doyle says she felt the left hip dislocate again and further surgery was undertaken to relocate the hip.
Dr Gillespie later advised that further surgery would have to be undertaken and, in her affidavits, Ms Doyle said that, on 22 January 1999, a further operation was undertaken, though, in the Amended Statement of Claim, this is pleaded to have been performed on 25 January 1999.
Ms Doyle says she continued to feel pain in her right hip and groin area and that she saw Dr Gillespie more frequently than would ordinarily have been required because of the ongoing pain. On two occasions she underwent an open reduction operation performed by Dr Gillespie.
She says that on 9 November 2003, her right hip dislocated, and because of Dr Gillespie’s absence, another doctor relocated it and the next day, Dr Gillespie performed further surgery.
She says she continued with rehabilitation treatment but in about September 2004 it was suggested by another person who had had a hip replacement that she should consult Dr Paul Smith, Orthopaedic and Trauma Surgeon, for a second opinion.
She consulted Dr Smith in September 2004 and she says that he made disparaging comments about the operative treatment she had received. Later, in May 2005, Dr Smith performed further surgery on her left hip and in November 2005 on her right hip. She says she has not since then experienced any pain in her hips.
Ms Doyle consulted lawyers in April 2005 (before Dr Smith operated) about whether she had a claim against Dr Gillespie. They appeared to give her a pessimistic assessment of the likely success of such a claim, but advised her that they had an obligation to notify her proposed claim within four months after receiving instructions, that is on or before 3 July 2005. Their letter concluded:
Finally, we are under an obligation to notify another party (ie, Dr Gillespie) of any proposed claim within 4 months receiving instructions (ie on or before 3 July 2005). We opened our file on 4 April 2005. Obviously you will need to discuss with A/Prof Smith whether he considers there are reasonable prospects of a medical negligence claim against Dr Gillespie. If we do not hear from you to the contrary, we will assume that you no longer wish to proceed with any claim against Dr Gillespie.
It appears that no notification was given. The quoted paragraph does leave it somewhat unclear as to what Ms Doyle had to do about notification, if anything (such as give the lawyers further instructions), or whether their cited “obligation” was something they would do in any event.
It does seem to me that it is important when dealing with matters such as time limits, that lawyers are crystal clear in the information they give to clients or prospective clients about the steps that need to be taken, who needs to take them, and when they need to be taken and, especially, what the client must do and what is expected of the client.
In any event, Ms Doyle apparently did not return to those lawyers but in August 2005 consulted what is known as Australian Injury Helpline Ltd “for a second opinion”. It is not clear why she waited so long, in particular, until well after the notification period had expired, though she says that she “found out more information from Dr Smith over time and came to a better understanding of what Dr Gillespie had done wrong by me”. This was, of course, exactly what the lawyers she first consulted had suggested she do.
The Helpline recommended that she contact another lawyer, which she did, but not until January 2006. She did not explain this delay. He advised of the quite reasonable and proper need for a medical expert report and asked for $1,500 on account of the costs of it.
Such a report was obtained, but not until May 2007. Again, the delay is not explained. The expert, however, claimed $2610 for the report, which would be released on payment and Ms Doyle was apparently not able to provide the balance at that time.
She became disaffected with her second lawyer and on or about 20 June 2007 consulted her present lawyers, Elrington Boardman and Allport. She borrowed money to pay the medical expert whose report was then received by her lawyers on or about 9 October 2007 and on 12 October 2007 they lodged an Originating Claim in this Court claiming damages for negligence alleged to have been committed by Dr Gillespie in the various operations he performed.
The Proceedings
The Originating Claim had attached to it, as required by r 50(2) of the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules), a Statement of Claim which pleaded the causes of action against Dr Gillespie. The Statement of Claim referred to each operation (though only by reference to the date of her admission to hospital), that is those performed on 7 September 1998, 18 and 22 January 1999 and 15 August, 12 September and 10 November 2003, but curiously alleged that Ms Doyle suffered injury only on 19 January 1999 and on the occasion of the three 2003 operations. Those injuries were, it was alleged, caused by Dr Gillespie’s negligence.
Dr Gillespie, through his lawyers, filed a defence. Contrary to the rules of good pleading, it purported to admit and deny paragraphs rather than the allegations in those paragraphs: see J bhnf Vardanega v Australian Capital Territory [2009] ACTSC 170 (at [97]); Canberra Data Centres Pty Ltd v Vibe Constructions Pty Ltd & Anor [2010] ACTSC 20 at [9].
On 6 July 2009, Ms Doyle was given leave to file an Amended Statement of Claim. In it, she made extensive amendments to the Statement of Claim.
Many were of an editorial nature but there were, however, some relevant substantive changes. In particular, Ms Doyle added a reference to the procedures carried out on 7 September 1998 and 18 January 1999 as additional occasions on which she suffered injury alleged to be caused by the negligence of Dr Gillespie.
Under r 514(3) of the Court Procedures Rules, these amendments are, for the purposes of any limitations period, deemed to have taken effect (in the rules “started”) on 12 October 2007, when these proceedings were commenced. Whether that rule, which abrogates the “settled rule of practice” in Weldon v Neal (1887) 19 QBD 394, is only operative where the amendment has been made with leave of the court, as is established by Wilkinson v Rockdril Contractors Pty Ltd [1997] 1 Qd R 560 (at 565), relying on Adam v Shiavon [1985] 1 Qd R 1, I do not need to consider, as the amendment was made with leave, though that leave was given generally and not, apparently, after the court had inspected the actual amendments proposed.
The Amended Statement of Claim also omitted reliance on the operations performed on 15 August 2003 and 12 September 2003. The reason for omitting the one of 12 September 2003 is clear. The reason for omitting the one on 15 August 2003 and retaining the one on 10 November 2003 is not clear to me for reasons set out below.
It appears that the Originating Claim was requisitioned and ultimately accepted on 23 October 2007, but because of r 6145 of the Court Procedures Rules it is deemed to have been filed on 12 October 2007.
Limitation of Action
That date of 12 October 2007 (when the proceedings are taken to have begun) was, however, more than six years after the date of the first of the injuries allegedly suffered, namely 7 September 1998, consequent upon the operation performed by Dr Gillespie. Accordingly, that claim was barred by s 11 of the Limitation Act 1985 (ACT) (the Limitation Act) which provides:
11.(1) Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.
(2)Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act.
Another provision (as referred to in s 11(2) of the Limitation Act) is s 16B of that Act. Section 16B is in the following terms:
16B(1) This section applies to a cause of action for damages for personal injury other than a cause of action to which section 16 (Compensation to relatives) or section 16A applies.
(2)The cause of action is not maintainable if brought –
(a)if the injury is or includes a disease or disorder – 3 years or more after the day the person injured first knows –
(i)that the person has suffered an injury that is or includes a disease or disorder; and
(ii)that the injury is related to someone else’s act or omission; or
(b)in any other case – 3 years or more after the day the injury happened.
Section 11, however, still applies to the claim in respect of those operations performed prior to 9 September 2003 because s 100 of the Limitation Act provides that s 16B does not apply to causes of action which arise before 9 September 2003.
Section 11 applies, then, to the cause of action in respect of the injury alleged to have occurred on 15 August 2003 and so that cause of action is not barred because the Originating Claim was filed within the six year period after that date.
Section 16B, however, applies to the causes of action arising after 9 September 2003 (s 100) and so to the causes of action in respect of the injuries alleged to have occurred on 12 September 2003 and 10 November 2003. Those causes of action appear, then, to be irrevocably barred by that section as the Originating Claim was filed beyond that three year period and nothing can be done about it.
So far as I can tell, the likely reason that the claims are pleaded, as they are presently, is because the various amendments to the Limitation Act have made the process quite complex. Thus, the claim in respect of the operation on 15 August 2003 would not have been maintainable under the version of s 16B of the Limitation Act that applied between 9 September 2003 and 23 December 2005 for s 16B(3) applied s 16B(2) to claims arising after 1 July 2003. See DJ v RHS & Anor (2004) 182 FLR 76 (at 78). That provision, however, was repealed on 23 December 2005 which then inserted s 100 of the Limitation Act, effectively re-instating the six year period for causes of action arising between 1 July 2003 and 9 September 2003. The latter date was the date on which s 16B was inserted into the Limitation Act.
It seems to me that the amendments about the commencement of s 16B did not have the effect of destroying causes of action and then reinstating them or not. The test seems to me simply to be that the provisions of the Limitation Act at the date on which the proceedings are commenced apply to the relevant proceedings. This approach would apply s 100 of the Limitation Act to these proceedings and not the version of s 16B which was operative prior to 23 December 2005, for the proceedings were commenced after that date.
As to the operation performed on Ms Doyle on 10 November 2003, it may be that Ms Doyle will argue that the injury she suffered is a disease or disorder (for the meaning of such a term, see Stingel v Clark (2006) 228 ALR 229), and that she only became aware that the injury included a disease or disorder when she read Dr Smith’s report on 12 October 2004. This would permit her to commence proceedings up to 11 October 2007. Perhaps she thought it permitted her to commence them on or before 12 October 2007.
Thus, it would seem that Ms Doyle was presently entitled to bring an action only for the injury which is claimed to have occurred on 15 August 2003, though she appears to have abandoned that in the Amended Statement of Claim, perhaps for the reasons I have set out above. I make no findings, about this or whether the cause of action allegedly arising on 10 November 2003 is barred or whether the operation gave rise to a disease or disorder, for I heard no submissions on either matter. The other claims are barred under the Limitation Act.
The limitation of actions is a long-established principle in law, dating back at least to the reign of Henry VIII and his 1540 Statute of Limitations (32 Henry VIII c2). The current statutes can trace their origin to the statute of James I in 1623 (21 James 1 c16).
The rationale for such provisions has remained remarkably constant, and their justification provides a degree of importance in the community which may not always be understood. As early as 1791, Lord Kenyon CJ in Doe and Duroure v Jones (1791) 4 TR 301 (at 308); 100 ER 1031 (at 1035) called them “statutes of repose”; Lord Wynford, delivering judgment for the Privy Council in White v Parnther (1829) 1 Knapp 179 (at 227) 12 ER 288 (at 305), called them “laws of peace and justice”.
In 1870, Lord Plumer MR, in a decision upheld by the House of Lords on appeal, said in Cholmondeley v Clinton (1820) 2 Jac & W 1 (at 140), 37 ER 527 (at 577):
The statute is founded upon the wisest policy, and is consonant to the municipal law of every country. It stands upon the general principle of public utility. Interest reipublicæ ut sit finis litium, is a favourite and universal maxim. The public have a great interest, in having a known limit fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period, after which the possessor may know that his title and right cannot be called in question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right, than that an opening should be given to interminable litigation, exposing parties to be harassed by stale demands, after the witnesses of the facts are dead, and the evidence of the title lost. The individual hardship will, upon the whole, be less, by withholding from one who has slept upon his right, and never yet possessed it, than to take away from the other what he has long been allowed to consider as his own, and on the faith of which, the plans in life, habits and expenses of himself and his family may have been (as it is alleged in the present instance they were) unalterably formed and established. – Vigilantibus et non dormientibus lex succurrit.
More recently, but to largely the same effect, some 176 years later, McHugh J set out the rationale for limitation statutes in the well-known passage from Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 552-3) (Brisbane South), when his Honour said:
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:
The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. (footnotes omitted)
See also Archie v Archie; Smythe Third Party [1980] Qd R 546 per Hoare J (at 559).
The possibility of injustice through the application of limitation provisions has been ameliorated by the provision for a limited right to an extension of time within which an action may be brought after the expiry of the limitation period. The provisions are limited as would be expected having regard to the considerations justifying the imposition of limitation of action provisions themselves.
Thus s 36 of the Limitation Act, permits a court, in certain circumstances to extend the time within which a person may commence proceedings. It does not, however, apply when s 16B applies. It is relevantly in the following terms:
36.(1) This section applies to any action for damages if the damages claimed consists of or include damages in relation to personal injuries to any person.
(2)If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it considers appropriate, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for the period that it determines.
(3)In exercising the powers given to it by subsection (2), a court shall have regard to all the circumstances of the case, including, for example, 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 conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts that were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he or she 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;
(f)the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice the plaintiff may have received.
(4)The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding –
(a)that the limitation period in respect of the relevant cause of action has ended since the cause of action accrued; or
(b)that an action in relation to such personal injuries has been begun.
(5)This section does not apply in relation to a cause of action to which either of the following applies:
(a)section 16B (Other claims for damages for personal injury).
This provision can, then, permit the court to extend the time within which this action, so far as it is based on the operations performed on 7 September 1998 and 18 and 22 January 1999, or thereabouts are concerned, and this is what Ms Doyle has applied for me to do in her Application in Proceeding dated 4 August 2009.
Extension of Time to Commence Proceedings
To grant an extension of the limitation is no formality. Indeed, as Dawson J said in Brisbane South (at 544), the provision for an extension, such as given by s 36 of the Limitation Act, “does not confer upon an applicant for an extension of time a presumptive right to an order” once the conditions in the section are satisfied. The touchstone is whether justice is best served by the extension, which involves weighing up the interests of both proposed plaintiff and proposed defendant. The applicant, too, must discharge the onus of satisfying the court that the extension will not result in significant prejudice to the proposed defendant and, in doing so, starts from the position that the legislatively selected limitation period means that commencement of an action beyond that time is prima facie prejudicial to the defendant.
This is, also, no mere formality to be overcome merely by showing an absence of what might be termed “actual prejudice”; that is, prejudice which can be specifically identified by the proposed defendant (such as destruction of records or the death of a witness) as opposed to the general or deemed prejudice identified by the High Court in Brisbane South which inevitably follows the expiry of the limitation period. That latter, “deemed”, prejudice is constituted not merely by the effect of the passage of time on the memory of witnesses, but the loss of the “quiet repose” that the expiry brings and the difficulty of conducting litigation remote in time from the events giving rise to it.
These principles apply generally, but, despite the similarity of the broad structure of limitation statutes across common law jurisdictions, including the Australian States and Territories, there is an increasing difference in important detail so authorities from other jurisdictions must be approached with caution before applying them to what may be a significantly different statutory regime.
Section 36 sets out six matters to which a court considering an extension of time must have regard. It is, however, not an exhaustive list and the court must have regard to “all the circumstances of the case”: Sessions v Phengsiaroun [2008] ACTSC 132 (at [42]). These include matters such as: any right of action that the proposed plaintiff might have against lawyers who acted (Noja v Civil and Civic Pty Ltd and Ors (1990) 26 FCR 95; Daroczy v BJ Engineering Pty Ltd (in liq) (1986) 67 ACTR 3), the prospects of success of the proposed plaintiff (Paramasivam v Flynn (1998) 90 FCR 489 (at 496-7), the time between when the limitation period expires and the time the proposed plaintiff gives notice to the proposed defendant (McIntosh v Southern Meats Pty Ltd (t/a Harden Abattoir) (1997) Aust Torts Rep¶ 81-424 (at 64-105)), and whether a fair trial is possible (Brisbane South (at 547)). I shall, however, first consider the statutory matters I must consider.
Delay
The first consideration is the length of and reasons for the delay in commencing the proceedings. The delay is that from the date the cause of action arose until at least the commencement of the proceedings, not merely from the expiry of the limitation period until the latter date: Brisbane South (at 548-9, 554-3).
There are, in this case, seven periods of relevant delay. The first is between the various operations (that is, from 7 September 1998 through to 10 November 2003) until she consulted Dr Smith in October 2004, who criticised the treatment she had received. Until then, of course, she had no understanding that her injuries could have been tortiously caused and can reasonably be expected to have assumed that they were just physiological problems.
The next period is from October 2004 to April 2005 when she first consulted lawyers. This was, in fact, prior to the first operation performed by Dr Smith, which was in May 2005. Nevertheless, Ms Doyle says that she “still did not fully appreciate the fact that Dr Gillespie had in fact done something wrong by me”. She does say that she was shown a letter from Dr Smith to her general practitioner on 8 November 2004 and that she then “realised for the first time that Dr Gillespie had not positioned [her] hips correctly”. This explains the period up to that date but does not explain why she did not consult lawyers until some five months later. It is, of course, a significant step to consult a lawyer, especially about possibly suing a medical practitioner. This may be an explanation, though it was not expressly offered. She did refer to this under cross-examination, however, and said that she had ongoing medical problems, that she did not consider the relevance of the passing of time and that she continued to experience pain which did not cease until after the operations. In the circumstances, that is an explanation for this period.
After consulting the first lawyers she saw in April 2005, she took no step before calling the Australian Injury Helpline Ltd in August 2005. She had received a pessimistic assessment from her lawyers. I have read the letter those lawyers sent. It certainly paints a picture which is discouraging, though, quite properly, setting out the difficult issues to be faced in this, and indeed, any such litigation. As noted earlier, the letter was at best ambiguous about what, if anything, Ms Doyle was next required to do. Again, this seems to me a reasonable explanation for the passage of time.
Although she had received advice from the Helpline, and a letter which was much more encouraging, in August 2005, she did not take further steps until January 2006 when the Helpline referred her to her second lawyers whom she then consulted. In cross-examination, she explained that representatives of the Helpline came to see her at some unspecified time but there was really no explanation for this delay of four months.
Her second lawyers explained the need for a medical report and the common requirement of pre-payment which she says she found difficult to provide. She tried to sell her car to gain the funds but received no inquiries. She also explained that her lawyer had some difficulty in locating a suitable expert and he then took until May 2007 to advise that his report was ready.
This is an exceptionally long delay, especially when her second lawyer must have known that the limitation period had passed for the earlier operations. On the other hand, Ms Doyle said that, contrary to my calculations, her lawyer had merely told her “that the limitation was running out”. Her financial situation prevented earlier disposition.
From Ms Doyle’s perspective, this goes some way to explain the delay, but there is serious delay (some 16 months) which, in the light of the passing of the limitation period, is troubling from the perspective of her lawyer.
I asked specially for some assistance from counsel as to the responsibility that a client has in such an application for delay by her solicitor. Both counsel provided me with helpful material though, as noted above, decisions from other jurisdictions have to be treated with reserve because of the different statutory provisions.
In Duff v Freijah (1982) 62 FLR 280, Northrop J said (at 287) that it was “well-established that delays by a solicitor are visited upon the client when those delays are relevant to the limitation periods”. This does not seem to have been universally accepted: see Lucic v Nolan (1982) 45 ALR 411 (at 417). This approach was discarded in Jess v Scott (1986) 12 FCR 187 which embraced the views of the English courts, summed up in the comment of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 (at 601), “[w]e never like a litigant to suffer by the mistake of his lawyers”. See also Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437 (at 440[14].
Thus, in Comcare v A’Hearn (1993) 45 FCR 441, the Full Court of the Federal Court (at 443) pointed out that inexcusable delay on the part of the proposed plaintiff’s solicitors could amount to an acceptable explanation for the delay.
This accords with the approach in other jurisdictions. For example, in Smith v Grant (2006) 67 NSWLR 735, Basten JA (with whom Handley and McColl JJA agreed) said (at 749):
Accordingly, the weight of authority under the Motor Accidents Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings.
The conduct of the solicitor, as Basten JA noted (at 752), was relevant and needed to be considered. Nevertheless, the litigant is not vicariously liable for the defaults of the solicitor: Tolcher v Gordon (2005) 53 ACSR 442 (at 464).
In that case, Hodgson JA said (at 444[6]) in remarks expressly endorsed by Tobias JA:
When an application is made to the court for relief from the consequences of delay, an explanation should always be given as to why the delay occurred, even if it is only that the matter was overlooked. In the absence of an explanation, such an application would ordinarily be dismissed. Alternatively, if the court considers that the fault is with a legal adviser of the party and that the party itself is not at fault and should not be penalised, it may be appropriate to require an affidavit from the legal adviser and to order that he or she pay the costs involved in any delay arising from the need to provide that affidavit.
To some extent, that is a counsel of perfection, for a solicitor whose retainer has been terminated, especially over such delay, may be unwilling to make such an affidavit, especially as there may be a risk of negligence proceedings against him or her. It is, nevertheless, a salutary comment on the frankness and completeness that is to be expected in applications to extend the limitation period, which sometimes seems to be considered, wrongly, as a formality. See also Stollznow v Calvert [1980] 2 NSWLR 749 (at 751-2).
It might seem as if Connolly J in Nguyen v Jajic [2007] ACTSC 12 took a contrary view and held the litigant responsible for her solicitor’s default. It does not seem to me that this is a correct interpretation of his Honour’s judgment. While the relevant delay of eight months may have been caused to some extent by default of her solicitor, the evidence was otherwise and the applicant accepted blame herself in the sense of conceding that she could have instructed her solicitor to commence the proceedings from an earlier date (at [8]).
Similarly, references to the solicitor’s delay in Whiteford v Ropalo Services Pty Ltd [2009] ACTSC 22 (at[21]) do no more than show, as I find here, that while the delay and conduct of the solicitor is relevant, it is not determinative and would not ordinarily be imputed vicariously to the litigant, without more being shown.
Thus, this period of delay is relevant. For example, it adds to the passage of time which Ms Doyle must confront. She also needed to explain it, but reference to her solicitor’s conduct could achieve this. Further, if it was reasonable for her to take some responsibility for it, then she should have done so or explained why she did not.
The explanation for this period is thin. There were three considerations: the difficulty in finding an expert, the long time taken by the expert to prepare a report and her financial difficulties in obtaining the necessary funds. They do provide some explanation for this lengthy delay and, in general terms can fairly be described as factors beyond Ms Doyle’s control.
The next period of delay is between May 2007 and June 2007 when she, having become disaffected with her second lawyers, changed to and instructed her present lawyers. This is a relatively short period and is reasonably explained by the need to effect this change.
The final, seventh, period is from June 2007 to October 2007, when the Originating Claim was filed. This period was the subject of a detailed affidavit by Ms Doyle’s present solicitor. Having read it carefully, it is possible from this distance to point to periods which could be the subject of criticism, but that leaves out of account the day-to-day pressures in a solicitor’s office and relies on the perfection of hindsight. There was no egregious delay and three days after Dr Allman’s report was received, the Claim was filed.
Accordingly, there was one period of five months for which there was no explanation and a period of sixteen months for which the explanation was thin.
The overall delay is also of concern for it was, from the first operation, over nine years.
There is a further period that needs to be at least considered. Whilst the proceedings were commenced (or taken to have been commenced) on 12 October 2007, this application was not made until the Application in Proceedings dated 4 August 2009 was filed. This is a further two years of delay. An order on the Application removes the bar and such an application may be made after the proceedings have begun: s 36(4).
The approach in Brisbane South would support the view that it is a relevant period, for it contributes to the prejudice that deteriorating memory and similar matters constitute. Until the application is successful, the action is barred and the defendant has a good defence: Paramasivam v Flynn (at 512).
In Paramasivam v Flynn, the Full Court of the Federal Court held (at 508) that it was a period that was to be taken into account, following S & B Pty Limited v Podobnik (1994) 53 FCR 380. While the Court there noted the submission that the defendant would be aware that pleading the limitation defence would lead to an application for an extension of time, it relied on the fact that the defendant had not contributed to any delay in making such an application or ignored the possibility. This also applied here.
On the other hand, the defendant clearly then knows of the claim and has the motivation to seek out evidence to preserve it and otherwise protect its interests. Such knowledge and protection is commonly taken into account where, for example, prior claims for workers compensation have been made and investigated. See, for example, Brozinic v PHC Operations Pty Ltd t/as Hyatt Hotel Canberra [2008] ACTSC 20 (at [21]).
In my view, this is a relevant period, but with a lesser and, perhaps, more subtle significance. It adds to the overall delay to be considered and the consequent prejudice this produces. Nevertheless, the defendant has some means to protect itself from ongoing prejudice and so it has lesser significance on this account. It might, however, show the plaintiff’s ongoing disregard of the need to proceed with claims diligently.
In this case, the affidavit of Ms Doyle’s solicitor addresses the issue comprehensively. There were communications with the insurers of Dr Gillespie and then with the ACT Government Solicitor. There were attempts to seek settlement negotiations and the proceedings were progressed.
Ms Doyle’s lawyers took a view about the limitation period that initially suggested the proceedings were not barred. That was rejected by Dr Gillespie’s lawyers and Ms Doyle’s lawyers sought counsel’s advice which was to seek further medical evidence before making this application. There had, however, to be a change in counsel and then the Statement of Claim had to be amended. This application was then brought.
I do not consider that this delay, though by no means insignificant, is unexplained or unreasonable and that any additional prejudice to Dr Gillespie is slight.
Prejudice
The next matter is any prejudice to the proposed defendant, Dr Gillespie. The substantial passage of time, namely eleven years from the first operation to the hearing of the application, is a prejudice in itself. This is difficult to quantify for a number of reasons. As McHugh J said in Brisbane South (at 551):
Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (22), ‘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.
Later his Honour gave specific examples of such problems, not unlike the situation here. His Honour said (at 556):
Besides the proved prejudice, the long delay gave rise to a general presumption of prejudice. In the ordinary course of events, it is probable that the plaintiff discussed her operation and the reasons for it with various people – friends, relatives and perhaps even the nursing staff. If Dr Chang’s notes are accurate and the action had been commenced within the limitation period, one or more persons in this group may have been able to provide evidence or information favourable to the defendant. By the time the application for extension was made, it is likely that such conversations, if they took place, would be no longer within the memory of the participants.
A fair trial is, of course, a trial on the best evidence that a party can bring to support his or her case and to undermine his or her opponent’s case. Evidence that is lost or that has deteriorated prejudices such a fair trial.
It is true that Dr Gillespie adduced no evidence of what I have called “actual prejudice”. This does not negate this ground and the lengthy delay strengthens its potency. Nevertheless, it is relevant that Dr Gillespie identified no specific ground of prejudice.
It is also relevant that this does not appear to be a case where conversations will be critical (as was the case in Brisbane South). The clinical notes of Dr Gillespie are in existence and have been preserved. In addition, Ms Doyle has, through her solicitors, made available to Dr Gillespie a copy of Dr Smith’s report, Dr Allman’s report and the “briefing material” sent to Dr Allman.
Defendant’s Conduct
The next matter is the defendant’s conduct after the cause of action accrued. There is nothing relevant here. Dr Gillespie cannot be said to have prevented Ms Doyle from understanding her situation or pursuing her claim in any way.
Plaintiff’s Disability
The Limitation Act then refers to “the duration of any disability of the plaintiff arising on or after the date of accrual of the cause of action”. Ms Walker, who appeared for Dr Gillespie, suggested that this was not relevant as it referred to legal rather than physical disability and, of course, Ms Doyle was never relevantly under a legal disability. In Goodwin v Smith (unreported, ACTSC, Miles CJ, SC 694 of 1990, 10 December 1990) Miles CJ (at 5) said of this ground:
There is also the question of the duration of the disability. That is also not relevant because disability in that context means legal disability and not physical disability. The plaintiff has not been under any legal disability.
See also his Honour’s decision in Arnold v Commonwealth & Anor (unreported, ACTSC, Miles CJ, 1232 of 1987, 30 November 1995) where (at 20) his Honour took the same view. Disability in this sense would include the minority of the proposed plaintiff, his or her mental impairment to the required degree and perhaps even imprisonment as in Lewis v Hillhouse [2004] QSC 311, though that is probably State-specific.
On the other hand, in A v D (1995) 127 FLR 372, Miles CJ, in considering this ground, referred (at 381) to his consideration of the length and reasons for delay which addressed the difficulties the plaintiff there had in putting behind her the memory of the incident which caused the difficulties. This interpretation is more consistent with an interpretation when “disability” means a physical (including psychological or emotional, but not legal) disability. This is also consistent with the approach taken to this issue by Gallop J in Olejniczak v Wallaby Grip Australia Pty Ltd & Ors (unreported, ACTSC, Gallop J, SC 1380 of 1988, 2 July 1993) (at 16) where his Honour clearly referred to the duration of the physical disability that was allegedly caused by inhalation of asbestos fibres. This is the approach also taken by Higgins J (as his Honour then was) in Peterson v Dowse Asphalt Pty Limited (unreported, ACTSC, Higgins J, SC 360 of 1994, 30 November 1994) (at 9), in Morris v Fred Pty Limited (formerly Chapman Pools and Spas Pty Ltd) and Anor (unreported, ACTSC, Higgins J, 824 of 1994, 4 December 1995) (at 5) and in Ilovska v Kaycone Pty Ltd trading as Paragon Printing & Anor (unreported, ACTSC, Higgins J, SC 737 of 1995, 19 August 1996) (at 10). Gray J similarly took this view in Baxter v Calagos [2009] ACTSC 133 (at [32]).
In none of these cases, however, was there any discussion of the possible ambiguity in the section or the reason for the respective views taken.
An inspection of other limitation statutes shows that, unlike the Limitation Act, a number of them refer to “the extent of the plaintiff’s injury or loss” as in ss 560E, 62B(1) Limitation Act 1969 (NSW). See to similar effect s 30, Limitation of Actions Act 1936 (SA) and s 38A(2)(4), Limitation Act 1974 (Tas). This is arguably a relevant issue which, while not excluded from consideration here simply because not mentioned in the Limitation Act, could nevertheless be considered under the Act. Thus, it could be argued that this provision was the equivalent to “the extent of the plaintiff’s injury or loss” as in those statutes where the duration of disability is not mentioned.
In the Victorian Act, the Limitation of Actions Act 1958 (Vic), however, the criteria to be considered for an extension of the limitation period set out in the Statute are identical to (and almost word for word the same as) the criteria in s 36 of the Limitation Act. Indeed, so far as this provision is concerned, s 23A(3)(d) of the Victorian Act (which applies to causes of action accruing prior to 21 May 2003), is identical to s 36(3)(d) of the Limitation Act. It seems initially to have been assumed, without apparent argument that this provision meant physical disability: Walla v State Transport Authority [1985] VR 327 (at 329); Bell v SPC Ltd [1988] VR 123 (at 131). Subsequently, however, Brooking J reconsidered the matter in Koumorou v Victoria [1991] 2 VR 265 and said (at 274):
Mr Parnell relied heavily on para (d), which is concerned with the duration of any disability of the plaintiff arising on or after the accrual of the cause of action. He referred to the severity of the plaintiff’s injuries and also relied in association with the injuries on the plaintiff’s age at the time of the accident and on such other evidence as there was concerning his background. In Bell v SPC Ltd, [1988] VR 123 at p 131, I must confess that I assumed that ‘disability’ in para (d) included the effect of the accident on the plaintiff’s mental state in a case where the plaintiff was certainly not of unsound mind in the technical legal sense. By s 3(2) for the purposes of the Act a person shall be deemed to be under a disability while he is a minor or of unsound mind. Section 23(1) extends limitation periods in the case of persons under a disability. Whether ‘disability’ in para (d) means disability in the sense of legal incapacity is not clear. I note that in Thompson v Brown [1981] 1 WLR 744 at p 751, Lord Diplock spoke in relation to this paragraph of ‘a class of persons that equity has always been zealous to protect’. But I find it unnecessary to determine this question, since I have no doubt that if para (d) does not embrace the matters now relied on then I should nonetheless take them into account as part of ‘the circumstances of the case’.
I can find no further discussion of the matter and in 2003 a new s 27L was introduced into the Victorian Act to govern actions where the cause of action arose on or after 21 May 2003 and, from 1 October 2003, where the cause of action arose before 21 May 2003 (unless the proceedings had commenced prior to 1 October 2002). This new section repeated the substance of s 23A(3) and in respect of s 23A(3)(d) reproduced it slightly differently in s 27L(1)(d) as:
The duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability.
This addition might be said to make the meaning of disability more clearly a legal rather than physical disability and so it has been accepted: Delai v Western District Health Service [2009] VSC 151 (at [42]).
It seems to me that there are some arguments both ways, though it seems odd that the paragraph refers only to “duration” of a disability if it meant physical disability since the nature or seriousness of a disability would seem to be more relevant than duration, or, at least, needing to be considered in combination with duration.
I am, therefore, inclined to accept the original view of Miles CJ that disability in s 36(3)(d) of the Limitation Act means legal disability. I have, however, not heard full argument and so cannot come to a definitive finding.
Whichever it means, it seems not to have excited much judicial anxiety or concern and has had little jurisprudential attention. Perhaps, under either meaning, the relative lack of significance of this factor under either guise is the cause of this.
In this case, there is no legal disability. The physical disabilities seem to have lasted from 1999 to 2005. Quite frankly, in the light of the absence of judicial guidance, I am not sure that this is significant and, if so, whether it is favourable to the grant of an extension or not. Why a disability of short duration is more or less worthy of compensation after the limitation period has expired is a question that I have not seen satisfactorily answered in any of the authorities I have consulted. Surely the severity of the disability would be also relevant. Nevertheless, as I am bound to do (if disability means physical disability, which I doubt) I take it into account. Even if I am not bound to do so, it does not seem so irrelevant that to take it into account in this way would amount to appellable error.
In any event, as Brooking J said in Koumorou v Victoria, a court is bound in any event to take into account the severity of the plaintiff’s injuries and I do so. They were challenging to her, giving her ongoing pain, but that and the disability has now been resolved.
Promptness of Action by Plaintiff
The next matter is the promptness with which Ms Doyle acted once she knew that the operations performed by Dr Gillespie might be capable of giving rise to a claim by her. This is, in the first instance, the period after she consulted Dr Smith. I have earlier (at [46]) noted that she first realised that Dr Gillespie “had not positioned [her] hips correctly” on or about 8 November 2004, but did not consult lawyers until April 2005. She was, at this time, still in pain and had not had the problems with her hips resolved. While I do not consider she acted then with particular promptitude, there is, as I have already accepted, some explanation for this and it is not clear that she sat on her rights, one of the disentitling matters where an extension of the limitation period is concerned.
The next period is that between the first consultation and her telephone call to the Australian Injury Helpline Ltd. Given the pessimistic assessment by her lawyers, it is perhaps understandable that she was not motivated to pursue her case promptly, but it was another four months before she made this call. Again, while it is of some concern, it is difficult to characterise this as “sitting on her rights”, especially if, as to which there is no evidence that she did, she did not then know of any limitation period.
The next period is that until January 2006 when she consulted her second lawyers. There is some unclarity about this period for she says that some people from the Helpline visited her, but it is not clear precisely when they did so. Nevertheless, the time taken does not show that Ms Doyle was “sitting on her rights”.
The period thereafter until May 2007 was the responsibility of Ms Doyle’s second lawyers and she then acted reasonably promptly in seeing her current lawyers.
Although Ms Doyle, overall, did not always act with the promptitude that hindsight would suggest should have preferably occurred, it was not so significant that this factor would alone justify a refusal of her application.
Obtaining Expert Reports
The issue to be considered under this heading is what Ms Doyle did to obtain medical, legal or other expert reports. In general terms, this has been recounted above. She did, through lawyers, seek a medical report and, indeed, that was in evidence in this application, as was a report from a treating doctor, Dr Smith. A number of other reports, though not produced in evidence, were clearly provided to Dr Gillespie’s lawyers.
No other reports are particularly relevant, though the material before me shows that counsel’s advice was also obtained.
Those steps show that Ms Doyle and her lawyers have appropriately progressed the claim with the relevant expert material being south, obtained and, in most cases, shared with Dr Gillespie’s lawyers.
Right of Action against Plaintiff’s Lawyer
I referred above to the issue of whether Ms Doyle might have an action against her previous lawyers and whether that was a relevant factor to take into account and, if so, how I should do so.
I sought assistance and counsel for both parties provided me with authorities that were helpful.
In Daroczy v B J Engineering Pty Ltd & Anor (1986) 83 FLR 423, Kelly J said (at 438):
The possibility of an action against the plaintiff’s solicitors in respect of the delay has to be considered. On the whole, I think the proper view to take is that the alleged primary wrongdoers (the suppliers) should be looked to rather than the alleged secondary wrongdoers (the solicitors). In taking this view, I follow, with great respect, the general view taken in Birkett v James [1978] AC 297. At the same time I accept that there may be occasions when a proper balance between the blame which ought to be attributed to a plaintiff’s solicitor and prejudice to a defendant would mean that an applicant under s 36 of the Ordinance ought to be required to pursue his remedy against his solicitor rather than against the primary wrongdoer.
This approach was approved of by the Full Court of the Federal Court of Australia, when acting as the Appellate Court from this court in Noja v Civil and Civic Pty Ltd and Ors (1990) 26 FCR 95 (at 110).
This, Ms Doyle submitted, meant that “the possibility of a claim against [her] solicitor should not be considered in an action such as this”. That is, however, not what I consider Kelly J was saying. It is true that his Honour’s reference to Birkett v James [1978] AC 297 was to a case where Lord Diplock (at 324) (with whom Lord Russell of Killowen agreed) and Lord Edmund-Davies (at 336) had held that the ability of a party seeking relief from delay (there it was a defence to an application to strike out proceedings for want of prosecution) to sue the solicitors who had been responsible for the delay was an irrelevant consideration. On the other hand, Lord Salmon (at 330) could not agree that such a matter “can never deserve any consideration” though he accepted “that it cannot carry much weight”. That case, because of the nature of the proceedings, was not quite on all fours with this application, though deserving, of course, of much respect.
Since then, there has been a significant consideration of this issue, including in the Court of Appeal in Victoria, at a time when that State’s legislation was relevantly identical to the Limitation Act.
In Goyer v Matsukawan [1982] VR 948, Lush J (with whom Gray J agreed) expressed (at 954) a preference for the approach of Lord Salmon in Birkett v James as did McGarvie J (at 680) in McKenna v McKenna [1984] VR 665.
Despite some suggestions it should be resolved, no concluded view had been reached about the relevance of an alternative (or “secondary”) cause of action by 1996, when Smith J (with whom Brooking and JD Phillips J agreed on this point) noted that in Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 and went on to state (at 15):
It appears to me desirable that any consideration of this issue be reserved for a case where it could prove critical to the outcome of the application. 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 351; Nikolaou v Papasavas Philips & Co (1989) 166 CLR 394.
That passage was endorsed by the NSW Court of Appeal in Blackburn v Allianz Australia Ltd (2004) 61 NSWLR 632 (at 652 [47]).
In the NSW Court of Appeal in Morrison and Anor v Judd (unreported, NSWCA, Kirby P, Meagher and Powell JJA, 10 October 1995), Kirby P (with whom Meagher and Powell JJA agreed) concluded that Lord Salmon’s view in Birkett v James was to be preferred but referred with approval to the comments of Smith J in Repco Corporation Ltd v Scardamaglia about the difficulties to be encountered in taking into account the possibility of such collateral proceedings.
In the Victorian Court of Appeal, Buchanan JA (with whom Ormiston JA agreed) held in Tsiadis v Patterson [2001] 4 VR 114 (at 121 [27]) that the possibility of proceedings against an allegedly negligent solicitor was a relevant consideration when an application is made for an extension of the limitation period. His Honour said:
In my opinion it is appropriate in determining an application pursuant to s 23A of the Act to have regard to the ability of an applicant to recover damages from a former solicitor whose default has made the application necessary. The existence of a cause of action against a solicitor may enable the respondent to recover compensation partly as a consequence of the original wrongdoing. That may not be sufficient. An insurance policy availing the wronged person could have a like effect, and yet I do not think such a benefit should be taken into account in the exercise of the discretion created by s 23A of the Act. In my view the additional element which renders the availability of a cause of action against a solicitor relevant to the exercise of the discretion is that the cause of action arises from the barring of the right of action in respect of which an extension of time is sought. The court is required by the section to have regard to all the circumstances of the case. The prospect of recovering damages from a solicitor who is responsible for the delay in instituting proceedings is a circumstance of the case, and in my view is one that is relevant to the exercise of the court’s discretion. An applicant with the ability to recover compensation from a solicitor responsible for allowing the limitation period to expire is not relevantly in the same position as an applicant who has no such prospect.
Buchanan JA was, however, mindful of the difficulties that such an issue raised, and, consistent with the comments of Smith J in Repco Corporation Ltd v Scardamaglia said (at 121-2 [28]), said:
The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor’s retainer, the instructions given by the client from time to time and by the manner in which the solicitor’s work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s 23A of the Act is decided. In the present case it appears that turner was in breach of the obligations which he owed to the respondent, but that view is one based upon hearing only the respondent’s version of her engagement of Turner and the events of the succeeding years, for of course no evidence was led or submissions made on behalf of the solicitor. The matters referred to by Smith J in Repco Corporation Ltd v Scardamaglia should not lead to a plaintiff’s potential cause of action against a negligent solicitor being completely ignored, but rather affect the weight to be given to the availability of the cause of action.
More recently, this approach has been approved and followed in Andresakis & Skouteris Trading as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWLR 507 (at 526-8 [82] - [93]). See also Dib by her tutor Dib v Regtop [2000] NSWCA 380 (at [77]).
While this seems to fly in the face of a majority (though not unanimity) of opinion in the House of Lords in Birkett v James, I do not consider that I am now bound to follow that line of authority, particularly in the light of the doubt cast upon it as Australian law in Bastistatos v Road Traffic Authority of New South Wales (2006) 80 ALJR 1100 (at 1118 [62] – [63], 1127 [138]).
Thus, I find that the possibility of action against the plaintiff’s solicitor responsible for delay is a relevant consideration, but one which does not carry significant weight in the determination of the application for an extension of time. The difficulties in assessing the prospects of success of such a secondary action robs it of much force but a strong claim, especially if admitted by the solicitor, may well show that the prejudice to a defendant in the primary proceedings can be recognised and validated by refusing an application in those circumstances.
In this case, I simply do not have enough information even to begin an evaluation of whether Ms Doyle has a claim against either of her earlier solicitors, despite some reservations about aspects of their work for her. This consideration, accordingly, does not help in this case.
Prospects of Success in the Claim
Another issue that is relevant is the question of whether Ms Doyle has reasonable prospects of success in her claim. As the Court said in Paramasivam v Flynn (at 496- 7):
It is clear that upon an application for extension of time, the Court is justified in assessing the relative strength of the appellant’s alleged cause of action. It is difficult to see how (in many cases, at least) a court could arrive at a final decision whether it is just and reasonable to extend the period unless some consideration is given to the prospects of the claim succeeding if it were allowed to proceed to trial. S & B Pty Ltd v Podobnik is sufficient authority for the principle, which was, in any event, confirmed by the joint judgment in Australian Capital Territory v Ives.
In this case, I have had the advantage, shared by Dr Gillespie’s solicitors, of seeing the primary medical reports on which Ms Doyle relies, namely the letter of Dr Smith dated 12 October 2004 and the letter of Dr Allman dated 9 October 2007.
Though Dr Smith’s report is guarded, it does suggest some clear problems in the treatment provided to Ms Doyle, for example, noting that with her left hip, the degree of anteversion “places her clearly well outside the safe zone in terms of component rotary position and clearly also explains why her left hip is clicking in and out”.
Dr Allman is somewhat more robust. He agrees with Dr Smith and confirms his view of “excessive combined anteversion” and that “the use of a modified acetabular insert to prevent recurrent dislocation was inadequate”.
While it is neither possible nor desirable to prognosticate on whether Ms Doyle’s claim will succeed especially as the response of Dr Gillespie has not been given, it is certainly a case where there must be said to be reasonable prospects of success.
Fair Trial
Ultimately, it is said that the fundamental test is whether it is possible for there to be a fair trial: Brisbane South (at 550).
While there is prejudice to Dr Gillespie, much of the evidence is documentary or quasi-documentary and there are no issues such as of consent on which oral evidence would be crucial. In addition, there has been full disclosure by Ms Doyle of her expert evidence to date.
The delay is very extensive and some is unexplained. Nevertheless, the effect of this on the fairness of the ultimate trial is not, in my view, overly significant or adverse to Dr Gillespie or his prospects of a fair trial.
Consideration
It is, as noted above, for Ms Doyle to satisfy the court that the extension should be granted. She must adduce sufficient material to justify the exercise of a discretion in her favour.
No one factor is determinative. Thus, though she has no explanation for part of the delay, that is not fatal, though damaging, to her application.
It seems to me significant that she was entitled as at 12 October 2007 to bring some proceedings against Dr Gillespie without need for an extension of time. Such a trial would at least be complex while a court tries to address the damage caused by the operation or operations permitted by legislation to proceed, without regard to that caused by the earlier operations. From one perspective, it would be easier, and arguably fairer, to permit the court to address all the surgical intervention in order properly to understand the course of the medical treatment provided. It may be argued, in any event, that some evidence of the earlier operations would inevitably be required to give the court a proper understanding of that which it had to address.
Having noted that, it must be said that the particular circumstances of her medical treatment, combined with the particular amendments to the Limitation Act, does mean that a court cannot necessarily deal with the whole of her medical interventions in any event, though the extension would permit the original operations, clearly significant ones to be properly scrutinised.
While Ms Doyle has not been as prompt in pursuing these proceedings as she should have been, she cannot be said to have stood on her rights and allowed them unreasonably to be terminated.
I am satisfied that she has a reasonable explanation for the delay, save for a not insignificant period, but which, in the context of this case should not disentitle her to the order sought. Similarly, I do not consider the prejudice to Dr Gillespie is such that it is so unfair as to require Ms Doyle to be shut out from her trial.
Accordingly, I am satisfied on the evidence before me that Dr Gillespie can receive a fair trial of the action and that Ms Doyle has satisfied me that I should exercise discretion under s 36 of the Limitation Act in her favour.
I will, therefore, extend the time for her to commence proceedings in respect of the causes of action alleged to arise from the operations conducted on 7 September 1998, 18 January 1999 and 22 January 1999.
Clearly some attention needs to be given to the Amended Statement of Claim. No application was made to me about this and Ms Doyle will need to consider her position and act as she may be advised.
As Gray J said in Baxter v Calagos (at [36]), Ms Doyle comes to the court seeking an indulgence. As in that case, the defendant has acted reasonably in opposing the application, particularly having regard to the length of the delay and the failure to explain some elements of it.
Accordingly, Ms Doyle should pay the costs of the application but under r 1701(2), I will order that they not be assessed until the proceedings end.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 23 March 2010
Counsel for the plaintiff: Ms S Hausfeld
Solicitor for the plaintiff: Elrington Boardman Allport
Counsel for the defendant: Ms L Walker
Solicitor for the defendant: ACT Government Solicitor
Date of hearing: 7 October 2009
Date of judgment: 23 March 2010
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