Gilbert v Castagna and 7 Ors

[2000] NSWSC 461

CITATION:

Gilbert & Anor v Castagna & 7 Ors [2000] NSWSC 461

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC NR600048/97

HEARING DATE(S):

25 May 2000

JUDGMENT DATE:

31 May 2000

PARTIES :

Janelle Margaret Gilbert
(First Plaintiff)

Leon Neil Gilbert
(Second Plaintiff)

Aldo Castagna
(First Defendant)

Ilesilver Pty Limited t/as North Coast Radiology
(Second Defendant)

Peter Meyer
(Third Defendant)

Warwick William Herbert
(Fourth Defendant)

Ramon Lun
(Fifth Defendant)

Ian Cappe
(Sixth Defendant)

Joanna Sommerfeld
(Seventh Defendant)

Chan Hen Sam
(Eighth Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :

Mr P Semmler QC with
Mr P J Taylor
(Plaintiffs)

Mr I McGillicuddy
(First Defendant)

Ms K Burke
(Second to Eighth Defendant)

SOLICITORS:

Stone & Partners
Lismore
(Plaintiffs)

Tress Cocks & Maddox
(First Defendant)

Budd & Piper
Tweed Heads
(Second to Eighth Defendants)

CATCHWORDS:

Extension of limitation period - Medical negligence - Spina Bifida - Radiology - Ultrasound scans - Oral contraceptive pill - pregnancy

LEGISLATION CITED:

Limitation Act 1969 (NSW) - ss 60C & E, ss 60 G & I

CASES CITED:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 129 ALR 1
BHP Steel (AIS) Pty Limited v Guidice (&Ors) (NSWCA, unreported, 7 March 1997)
Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195
Commonwealth of Australia v McLean (1997) 14 NSWLR 389
Szerdahelyi v Bailey; Ortado v Bailey; Lewis v Bailey (unreported NSWSC, Badgery-Parker, 1 May 1997)
Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported NSWCA, 24 April 1998
Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995)

DECISION:

See para36

26

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 31 MAY 2000

NR600048/97 - JANELLE MARGARET GILBERT & ANOR
v ALDO CASTAGNA & 7 ORS

JUDGMENT (Extension of limitation period)

1 MASTER: The plaintiffs by notice of motion filed 22 November 1999 seeks an order that the time within which to commence proceedings be extended pursuant to ss 60C and E and ss 60G and I of the Limitation Act 1969 (NSW) (as amended) (the Act) as against the eight defendants. The plaintiffs relied on their affidavits filed on 22 November 1999 and that of their solicitor Brendan Bourke sworn 9 November 1999. The defendant did not rely upon any affidavits.

2   The first defendant was the plaintiffs’ general practitioner. The second defendant was the provider of radiological services. The third to eighth defendants were partners in a radiology firm trading as North Coast Radiology. It is alleged that the defendants gave negligent advice to the plaintiffs in relation to the first plaintiff’s pregnancy in 1992. On 25 November 1992 the first plaintiff gave birth to a son Brad Geoffrey Gilbert. Brad Gilbert was born with spina bifida. The plaintiffs allege they suffered nervous shock and claim the financial costs of raising Brad.

3   For the purposes of this application I find the following facts. In arriving at these findings I observed the plaintiffs both giving evidence and being cross examined and I formed the opinion that they were truthful witnesses.

(1) The first and second plaintiffs are 35 and 39 years old respectively, They reside in South Casino. They were married on 17 August 1985.

(2) The plaintiffs are the parents of three children. Trent born 12 September 1987, Ryan born 26 April 1991 and Brad born on 25 November 1992.

(3) The first defendant was the first plaintiff’s general practitioner from 1980 until December 1996. He was also the second plaintiff’s general practitioner from 1992 to December 1996.

(4) From the age of ten the first plaintiff has suffered from epilepsy. Between 1980 and 1996 the first defendant treated the first plaintiff for epilepsy and prescribed the anti-convulsants, Epilim and Tegretol.

(5) In 1987 the first plaintiff was aware that the first defendant informed her that the anti-convulsant drugs she was taking could cause birth defects. After the birth of their second child Ryan, the plaintiffs decided that they did not wish to have any further children.

(6) On 27 May 1992 the first plaintiff consulted the first defendant and underwent a pregnancy test which proved positive.

(7) On 1 June 1992 the first and second plaintiffs consulted the first defendant to discuss why the first plaintiff fell pregnant even though she was on the contraceptive pill and to discuss termination of the pregnancy.

The first defendant examined the first plaintiff’s abdomen and told the plaintiff’s that she was possibly 16 weeks pregnant. The first plaintiff remembers crying as she thought that she was too far along in the pregnancy to safely or legally terminate the pregnancy. The second plaintiff asked the first defendant whether the first plaintiff could have a termination and where it could be performed, and they were told by the first defendant that the first plaintiff would have to go to the Gold Coast and that she would have to be induced and go through labour to abort the pregnancy. The first defendant told the plaintiffs that the first plaintiff would need to have an ultrasound scan the next day, and that the purpose of this scan was to determine the gestational age of the foetus. The first defendant referred the first plaintiff for an ultrasound to be carried out by North Coast Radiology.

(8) On 2 June 1992 the first plaintiff attended North Coast Radiology where she had an ultrasound carried out. The referral by the first defendant dated 1 June 1992 referred to Janelle Gilbert and stated Foetal … EDC not known. Clinically 17-16/40.” There is no reference to check for spina bifida. The report from North Coast Radiology forwarded to the first defendant did not reveal any abnormality.

(9) On about 10 June 1992 the first plaintiff consulted the first defendant. The first plaintiff had a blood test and was referred for a further ultrasound. The result of the blood test that was forwarded to Dr Castagna (Ex B) stated:

“ELEVATED LEVELS are seen in anencephaly, spina bifida, omphalocoele, congenital nephrosis, foetal distress and intra-uterine death. Raised values are also seen in multiple pregnancy and with some maternal diseases including liver disease and some ovarian tumours. Repeat serum testing, ultrasound, and amniocentesis should be considered.”


(10) On 25 June 1992 the first plaintiff had another ultrasound performed by North Coast Radiology. The referral from the first defendant stated “Foetal Screen progress 3/weeks from previous scan”. The result which was forwarded to the first defendant says that no foetal abnormality was detected.

(11) On 28 July 1992 an entry on the first plaintiff’s antenatal card which is completed by a nursing sister in the first defendant’s surgery stated “repeat blood/& foetal Protein ”. Blood is underlined in red and /& foetal protein is written in red pen. (Ex D).

(12) Throughout the pregnancy the first plaintiff was never informed by the first defendant that the foetus was suffering from a neural tube defect. She was told by the first defendant that she had nothing to worry about. If she had been made aware of the fact that there were signs which indicated that the foetus suffered from a neural tube defect, she would have sought a termination of the pregnancy.

(13) On 25 November 1992 the first plaintiff gave birth to a son, Brad Geoffrey Gilbert. Brad was born with what she now knows to be the neural tube defect described as spina bifida.

(14) The time of Brad’s birth was one of great stress and trauma for the first plaintiff. The years following the birth of Brad were very stressful for the first plaintiff and she was preoccupied during this time with looking after him and ensuring that he obtained adequate care. He has undergone 11 operations to date and has been treated by at least 22 doctors and other health professionals. The first plaintiff has had to make numerous journeys with him to the spina bifida clinic at the Mater Children’s hospital, South Brisbane and at the New Children’s hospital at Westmead. Brad’s treatment is ongoing and more operations are expected in the future.

(15) After the birth of Brad, the plaintiff wondered what had gone wrong. On many occasions between November 1992 and March 1993 she spoke with the first defendant about the scans. She communicated her concerns to the first defendant and told him that she wanted to speak with North Coast Radiology and ask them why Brad’s spina bifida had been missed. The first plaintiff has always been upset about the fact that Brad suffered from spina bifida. She was anxious to know why the condition had not been detected while she was pregnant.

(16) In early 1993 during an appointment the first defendant told the first plaintiff that North Coast Radiology would not talk to her and that she would be better off directing her energy towards looking after Brad and her own health. The first plaintiff was furious and told the first defendant that it was OK for him as he doesn’t have to deal with the daily things to do with Brad and that he has the luxury of not having problems with money to meet the costs of raising Brad. She yelled at the first defendant “Who will pay for all of this?” They had a very heated argument on that day. The first defendant asked the first plaintiff to leave his surgery and come back when she had come to her senses. The first defendant showed her the door. She was carrying Brad in a car capsule. She left and did not attend the reception desk as she was crying and went to the car.

(17) On 10 February 1993 the third defendant wrote to the first defendant (Ex C) and stated:

“Dear Aldo,
Re Mrs Janelle GILBERT as recently discussed by ‘phone
I have communicated with Medical Defence Society of Queensland. The Medical Secretary of the Society advises against our talking directly to Mrs Gilbert - he indicates that if the parents believe there has been negligence then our telling them that there hasn’t, won’t convince them.
He suggests that you might tell the parents we have reviewed the films & that even in hindsight we are not able to detect the abnormality. This sometimes unfortunately occurs.
Aldo, sorry we cannot be more helpful but we feel we must be guided by the advice of The Medical Defence Society.
Yours
Regards
Peter”


(17) In about April 1993 the first defendant arranged for the plaintiffs to see a Dr Carmody, an ultrasound expert in Brisbane, to review the ultrasound pictures which had been taken in June 1992. The plaintiffs saw Dr Carmody on 15 April 1993.

(18) The first plaintiff attended the first defendant’s surgery and at that consultation the first defendant read passages from what he said was a report from Dr Carmody to the first plaintiff and said words to the effect of “There is nothing on the ultrasound scans to indicate the presence of spina bifida”.

As a result of the review of the ultrasound pictures by Dr Carmody and the first defendant’s assurances the first plaintiff assumed that there was nothing which could have been done during the pregnancy to detect a defect in the foetus. Following the consultation with Dr Carmody the second plaintiff said to the first plaintiff words to the effect, “Dr Carmody has said there’s nothing on the scans, there’s nothing we can do. We have to let it go.” The first plaintiff accepted her husband’s advice to let it go.

(19) In about mid 1996 the first plaintiff had become increasingly uncomfortable with the answers she has been given as time went by. She spoke by telephone with Mr Peter Walsh, a solicitor at the firm of Parker & Kissane, Solicitor, Casino. She explained the situation and asked him if they had a case. He told her yes, but that he was unable to handle it locally as they would need to speak to a QC. Mr Walsh said that he would investigate the names of a few reputable law firms in Sydney that could handle a case like theirs. Time passed and they did not hear back from Mr Walsh.

(20) On 21 November 1996 the first plaintiff consulted their solicitor, Mr Brendan Bourke. On 11 April 1997 the plaintiffs’ solicitor forwarded a letter to Professor Bennet, an obstetrician seeking an opinion relating to the events that led up to Brad’s birth.

(21) On or about 2 September 1997 the first plaintiff received from their solicitor a copy of a report from Professor Michael Bennett dated 25 August 1997. It was only after reading this report that she became aware of the following:

(a) That at the time when Brad was conceived, because she was taking an oral contraceptive with a low oestrogen dosage at the same time as anti-convulsant medication, the effectiveness of the oral contraceptive was reduced and she was at greater of becoming pregnant.
(b) That to reduce the risk of pregnancy an oral contraceptive with a higher dose of oestrogen could and should have been prescribed for her by the first plaintiff.
(c) That the first defendant could and should have warned her of the reduced effectiveness of an oral contraceptive with a low oestrogen dosage, and of the increased risks of pregnancy by reason of the interaction between the anti-convulsant medication and the oral contraceptive she was taking.

(d) That the failure by the first defendant to change the oral contraceptive pill he was prescribing for her and to warn her of the consequence of the drug interaction increased her risk of falling pregnant with Brad.

(e) That because she was taking anti-convulsant drugs at the time when she conceived and was pregnant with Brad, there was an increased risk that he would suffer with a neural tube defect, and that the first defendant could and should have advised the plaintiffs of this fact.
(f) That the elevated maternal serum AFP detected in the blood test carried out at the request of the first defendant on 10 June 1992 indicated that there was a significant possibility of neural tube defect in the foetus and that the first defendant could and should have advised the plaintiffs of this significant possibility and of the need for further investigation and possibly for a termination of the pregnancy.
(g) That in the light of the blood test it would have been prudent medical practice for the first defendant personally to have consulted an experienced obstetric ultrasonologist to discuss the first plaintiff’s pregnancy and the blood test result prior to a second ultrasound examination.
(h) That there was a relationship between:
(i) the anti-convulsant medication which the first plaintiff was taking at the time of Brad’s conception; and
(ii) the fact that Brad was conceived at all, and the fact that he developed a neural tube defect which could and should have been detected.
(i) That those responsible for performing and interpreting the ultrasound scan carried out upon the first plaintiff could and should have detected a very significant spinal defect involving at least 5 vertebrae in her son’s back and that failing to detect this defect their conduct did not accord with proper standards.
(j) That there was a connection between the way in which those conducting and interpreting the ultrasound scan carried out their work on the one hand, and the fact that neither of the plaintiffs were advised of the presence of a very significant defect in their son’s spine in June 1992 on the other.


(22) After the first plaintiff received a copy of a further report of Professor Bennett dated 17 November 1997 she became aware, for the first time, that there was present in the two sets of ultrasound films a very strong suggestion that the head shape of the foetus was very suspicious and of the shape described as the “lemon sign” which is very frequently found in association with neural tube defects and should certainly prompt further investigation which would most likely have confirmed the central nervous system abnormality known as spina bifida from which Brad now suffers.

(23) In about November 1998 the first plaintiff was informed by her solicitor of the contents of a letter from Messrs. Budd & Piper dated 18 August 1998. The first plaintiff realised that the people responsible for the conduct of the business of North Coast Radiology in June 1992 were Drs Meyer, Herbert, Lun, Sommerfeld and Chan Hen Sam and that Dr Ramon Lun reported on the ultrasound scan of 25 June 1992.

(24) On 24 November 1997 a statement of claim was filed. It seeks an extension of the limitation period.

(25) On 22 November 1999 the notice of motion was filed seeking an extension of the limitation period.

(26) On 20 December 1999 the amended statement of claim was filed.

The Law

2 The plaintiff relies on s 60G and s 60I (1)(a)(i), (ii) and (iii) of the Limitation Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 and in BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) and Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195. The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.

Subdivision (3)

4   The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990; but “also (by the operation of Schedule 5) for causes of action that accrued before that date” (s 60F).
5   Schedule 5 provides by clause 4(1) that:

“Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…”;

6   and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action:

“…if an application for such order is made within:


(a) the period of three years referred to in s 60I; or

(b) the period of three years commencing 1 September 1990.”

7   Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such a period as it determines”.

8   The relevant provisions of s 60I are as follows:

“(1) A court may not make an order under s 60G or 60H unless it is satisfied that:
(a) the plaintiff:

(i) did not know that personal injury had been suffered; or

(ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and
(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”

9   I accept that in 1987 the first plaintiff knew that the anti-convulsant medication could cause birth defects but not specifically spina bifida. However, in relation to s 60I, it is not disputed that the plaintiffs have passed through the s 60I(1)(a)(iii) gateway within the stipulated time period. I am satisfied that the plaintiffs did not know the acts and omissions referred to in Dr Bennett’s report until 2 February 1997 at the earliest. Until 2 February 1997 the plaintiffs were unaware of the connection between their personal injuries and the defendants’ acts and omissions. The plaintiffs have passed through the s 60I(1)(a)(iii) gateway.

Just and reasonable

10   I turn now to consider whether it is just and reasonable to extend the limitation period. The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Taylor. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in Giudice and Commonwealth of Australia v McLean (1997) 14 NSWLR at 389.

11   Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff’s cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish her cause of action. (See Szerdahelyi v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Ortado v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Lewis v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported, NSWCA, 24 April 1998) and Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995).

12   The first defendant submitted that there was no cause of action in relation to his advice concerning the vasectomy and the cause of action in relation to the contraceptive pill. The plaintiffs did not make any submissions on these issues. In the amended statement of claim, the first plaintiff pleaded that she was prescribed the contraceptive pill Microgynen 30. She gave evidence that she had been prescribed Microgynen 50. Microgynen 50 is an adequate dose of oestrogen according to Dr Bennett. The plaintiffs’ claim in relation to the prescribing of the contraceptive pill cannot be sustained and should be struck out.

13   The evidence given by the plaintiffs concerning the vasectomy is that they attended the first defendant’s surgery between two to six months after the birth of their second child Ryan and were advised about the vasectomy procedure. The first defendant advised them that it was to close to Ryan’s birth for them to consider the second plaintiff undergoing a vasectomy and if something happened to either of their children they may wish to have further children. The first defendant told the plaintiffs to go away and think about it for a while. The first plaintiff gave evidence that they accepted this advice. The second plaintiff’s evidence was that at this point he had not decided to have the vasectomy. It is my view there is no cause of action established in relation to advice given about the vasectomy and this part of the pleading should be struck out.

14   Paragraphs 24 to 30 plead negligence and breach of contract against the first defendant in that firstly he failed to advise the plaintiffs or either of them that they should consult an obstetrician regarding, at least, the significantly increased risk of a neural tube defect, and appropriate counselling and testing; secondly, he refused to refer the first plaintiff to a specialist obstetrician despite the plaintiffs request for such a referral; thirdly, he failed to advise the plaintiffs or either of them that the first plaintiff consult an experienced obstetric ultrasonologist to certain whether the foetus had a neural tube defect; fourthly, that in breach of the contract and in breach of the duty of care the first defendant failed to perform or refer the first plaintiff for an amniocentesis to ascertain whether the foetus had a neural tube defect; fifthly, he failed to advise the plaintiffs or either of them that there was an increased risk or a significant possibility of congenital abnormalities particularly a neural tube defect such as spina bifida, and that many but not all of these abnormalities can be diagnosed antenatally and termination of the pregnancy before 20 weeks is both feasible and safe if the plaintiffs desired it; sixthly, he failed to counsel the plaintiffs or refer the plaintiffs for counselling regarding termination of the pregnancy; and seventhly, he wrongly and negligently advised the plaintiffs that the first plaintiff’s pregnancy appeared to be perfectly normal.

15   Paragraph 33 of the amended statement of claim alleges against the second to eighth defendants that in breach of the duty of care and in breach of contract, the second to eighth defendant negligently failed to detect the presence of any birth defect or presence of spina bifida in the unborn foetus; failed to warn the plaintiffs of the possibility of spina bifida in the unborn foetus; failed to ensure that when the ultrasound examinations were performed there was a trained ultrasonologist present to supervise and review the ultrasound examination process; failed to recognise that the head shape visible in the films of the two ultrasound examinations was very suspicious of the shape described as the “lemon sign”; failed to examine closely or at all the posterior fossa of the brain as well as serial transverse sections all the way down the spine; and failed to employ the “Filly technique” in the ultrasounds.

16   It is not disputed there are real causes of action firstly against all of the defendants in relation to the ultrasound interpretation; and secondly, against the first defendant in relation to the blood test. There is evidence that the plaintiffs have suffered damage. The defendants say that the pleading in contract should be struck out against the second plaintiff. The plaintiffs argued that the first plaintiff was agent of the second plaintiff. Both are the parents of Brad and it my view that this issue is arguable.

17   In Taylor McHugh J referred to the effects of delay in the now often quoted passage which states:

“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.”

18   and;

“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.
In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.”

19   and;

The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question: Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires an extension."

20   Dawson J, in Taylor said at page 2:

“The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.”

21   and;

"The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."

22   In Zegarac the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E. Section 60E (1)(b) specifically refers to “the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available”. By majority (Mason P and Powell JA) held in Zegarac that the trial judge erred by weighing up competing interest of the plaintiff and defendant which meant that the plaintiff was ultimately relieved of the persuasive burden which is placed on the plaintiff.

23   Mason P analysed the views of the Judges of the High Court in Taylor’s case. The President quoted the passage by McHugh J which begins “Legislatures enact” and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson J and McHugh JA appeared to indicate that it is mandatory that the applicant negate “significant prejudice” before the discretion could be exercised in his or her favour.

24   Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms.

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

25   Mason P perceived that there may be a distinction between the notion of “significant prejudice” and the notion that delay makes “the chances of a fair trial unlikely” but concluded that the views of the judges in Taylor represented a clear indication that mere proof of actual prejudice will not dictate a rejection of an application to extend time. Mason P then expressed respectful approval and agreement with the following statement of Kirby J in Taylor.

“Although attempts have been made to spell out the criteria to be taken into account in judging whether or not an order extending time should be made, care must be taken in the use of such criteria because of the different expression of the relevant provisions of limitation statutes. Furthermore, the factual circumstances of cases are infinitely various. The discretion conferred by s 31(2) of the [Queensland] Act is controlled only by the terms of the Act and the achievement of its purposes, as elaborated above.”

26   In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made “the chances of a fair trial unlikely” or whether the defendant would suffer “significant prejudice”.

27   The defendants did not put on any evidence that they suffered actual prejudice. I accept with the passing of 9 years since the events that gave rise to these proceedings occurred means that there is presumptive prejudice. All of the defendants are alive and continue to practise. The first defendant’s records of the treatment of the first plaintiff are available. The first defendant referred to the first plaintiff’s evidence concerning a referral note which it submitted is not available and will cause significant prejudice. Both referrals for ultrasounds in June 1992 are available and the first plaintiff was mistaken with her recollection which she admitted. Aside from that evidence, her recollection of events appeared to be excellent. It is my view that the delay has not made the chances of a fair trial unlikely nor do the defendants suffered significant prejudice.

28   The plaintiffs acted expeditiously once they sought legal advice. I accept that the plaintiffs after being told that there was no negligence in relation to the ultrasound by Dr Carmody in 1993 accepted his advice and concentrated on caring for Brad. When the solicitor did not get back to the first plaintiff in 1995 the case looked hopeless. The plaintiffs used the only other known avenue to seek legal advice in 1996. It is my view that it is just and reasonable to extend the limitation period.

29 Alternatively the plaintiffs rely on ss 60C and E of the Act in relation to the actions pleaded against the defendants. Section 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides:

“Ordinary action (including surviving action)
60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(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, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines."

30 Section 60E provides:

“Matters to be considered by the court
60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff’s injury or loss.”

31 I have canvassed s 60E(1)(a), (b), (e), (g) and (h) under s 60G and s 60I. The plaintiffs became aware of the injury and the nature or extent of their injuries within a short time after the birth of Brad. (s 60E(1)(c) and (d)).

32 In relation to s 60E(1)(f), I have taken into account the fact that the defendant sought advice from their insurer and did not fully explain to the plaintiffs what occurred (Ex D). The plaintiffs’ loss in bringing up Brad both financially and emotionally are substantial.

33 It is my view that the defendants have not suffered significant prejudice nor are their chances of a fair trial unlikely. I have taken the matters referred to in s 60E(1)(a)-(h) into account. The plaintiffs have discharged their onus and I am satisfied that it just and reasonable to extend the limitation period under s 60C and s 60E against the defendant.

34   The defendants if they wish can be heard on this matter. If they do not wish to do so, I make an order changing the venue of these proceedings to Sydney and placing the matter into the “professional negligence list”.

35   Costs are discretionary. Costs should be costs in the cause.

36   The orders I make are:

(1) I strike out the paragraphs of the amended statement of claim that relate to negligence and breach of contract in relation to the vasectomy and contraceptive pill. Otherwise leave is granted to the plaintiffs to commence proceedings against the defendants in relation to the birth of their child Brad born on 25 November 1992.

(2) An amended statement of claim is to be filed and served within 14 days.

(3) The venue is changed to Sydney and placed in the “professional negligence list”.

(4) Costs are costs in the cause.
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Last Modified: 09/26/2000