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Edwards v Kennedy

Edwards v Kennedy

Case [2009] VSC 74 12 March 2009

Limitation Periods

Compensatory Damages

Prejudice

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5714 of 2007

COLIN HAYDN EDWARDS	Plaintiff
v
TRUDY KENNEDY	Firstnamed Defendant
- and –
CHRIS GRANT	Secondnamed Defendant
- and –
GRAHAM ISAACS	Fourthnamed Defendant
- and –
SOUTHERN HEALTH	Fifthnamed Defendant
- and –
PATRICIA MIACH	Sixthnamed Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 27 February 2009
DATE OF JUDGMENT:	12 March 2009
CASE MAY BE CITED AS:	Edwards v Kennedy and ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 74

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LIMITATIONS OF ACTIONS – Application for extension of time within which to bring action – Personal injury claim – Alleged medical negligence by practitioners endorsing gender reassignment operation – Long period of delay – Failure of plaintiff to call witnesses to support explanation – Prejudice to defendants – Seriousness of injury and of alleged negligence – Exercise of discretion – Limitation of Actions Act 1958 (Vic) s 27K, L.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.P. Tobin SC with Mr J. Brett	Arnold Thomas & Becker
For the First Defendant	Mr J.J. Noonan SC with Mr S. O’Meara	John W. Ball & Sons
For the Second Defendant	Mr M. Rush	Deacons
For the Fourth Defendant	Dr I. Freckelton SC	Tress Cox Lawyers
For the Fifth Defendant	Mr A.W. Murdoch	DLA Phillips Fox
For the Sixth Defendant	Mr N. Rattray	Lander & Rogers

TABLE OF CONTENTS

Background......................................................................................................................................... 2

The limitation defence – legislation............................................................................................... 7

The plaintiff’s claim........................................................................................................................... 8

Legal principles................................................................................................................................ 10

Relevant factors................................................................................................................................ 11

Delay................................................................................................................................................... 12

The plaintiff’s reasons for delay.................................................................................................... 12

Prejudice............................................................................................................................................ 26

The nature and extent of the plaintiff’s loss and the nature of the defendants’ conduct.. 35

Conclusion......................................................................................................................................... 37

Order................................................................................................................................................... 40

HIS HONOUR:

The plaintiff, Colin Haydn Edwards, makes application, pursuant to s 27K of the Limitations of Actions Act 1958 (Vic) (“the Act”), for an extension of time within which to bring proceedings for damages arising out of a surgical procedure which he underwent on 14 November 1996.

Background

The plaintiff was born in the United Kingdom in 1943. He was a high achieving student at school, and successfully completed a science degree at university. The plaintiff migrated to Australia in about 1968, in order to commence employment as a lecturer at Longerenon Agricultural College, near Horsham. He remained employed by that college until the early 1990s. During that time he had a number of promotions, and ultimately became vice principal. The plaintiff married in about 1971, and he and his wife had two children.

The plaintiff claims that during his early teenage years he suffered sexual abuse by his mother. He has also described two episodes of cross-dressing as a female during his childhood. It seems, from the materials, that there was a further episode of such conduct before the plaintiff’s marriage, and after he arrived in Australia. In addition, about two years after he married, the plaintiff reverted to cross‑dressing. At his wife’s insistence, he consulted Dr Stanley Gold, a psychiatrist,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edwards v Kennedy

Details

AGLC: Edwards v Kennedy [2009] VSC 74
Case: [2009] VSC 74
Decision Date: 12 March 2009

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Edwards, to extend the time within which to bring an action against the defendants, Kennedy and others, for medical negligence related to a gender reassignment operation. The application was heard in the County Court of Victoria. The plaintiff sought an extension beyond the usual limitation period, arguing that the true nature and extent of the injury and negligence were not apparent until later, and that they had acted with reasonable diligence in bringing the claim.

The court was required to determine whether the plaintiff had provided a sufficient explanation for the delay and whether it was in the interests of justice to grant an extension. Key issues included the adequacy of the plaintiff's explanation for the delay, the seriousness of the alleged negligence, and the potential prejudice to the defendants if the extension was granted. The court had to balance the plaintiff's right to access justice against the defendants' right to be protected from stale claims.

The court found that the plaintiff had not provided a satisfactory explanation for the delay in bringing the action. The plaintiff had failed to call witnesses who could have corroborated their account, and the court was unconvinced by the plaintiff's explanation. Additionally, the court found that granting an extension would cause significant prejudice to the defendants, given the long period of delay and the potential impact on their ability to defend the claim. The court held that it was not in the interests of justice to grant an extension, and dismissed the plaintiff's application.

Orders