Goodridge v Baker
[2023] VSC 331
•16 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2022 000420
BETWEEN:
| ADAM GOODRIDGE | First Plaintiff |
| MICHELLE GOODRIDGE | Second Plaintiff |
| v | |
| GEOFFREY BAKER | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 and 23 March 2023 |
DATE OF RULING: | 16 June 2023 |
CASE MAY BE CITED AS: | Goodridge & Anor v Baker |
MEDIUM NEUTRAL CITATION: | [2023] VSC 331 |
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LIMITATION OF ACTIONS – Personal injury – Alleged medical negligence – Application for extension of time during which action may be brought – Delay – Delay between accrual of cause of action and application – Reasons for delay – Prejudice – Whether time ought be extended pursuant to s 27K of the Limitations of Actions Act 1958 (Vic) – Application granted – Azzam v Commonwealth [2019] VSC 484 – Tucker v Barwon Health & Anor [2008] VSC 229 – Tsiadis v Patterson [2001] VSCA 138.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C Winneke KC with Ms A De Souza | Slater & Gordon Ltd |
| For the Defendant | Dr S L Keeling | Gilchrist Connell Pty Ltd |
TABLE OF CONTENTS
Evidence............................................................................................................................................... 1
Background......................................................................................................................................... 2
Claims by Mr and Ms Goodridge............................................................................................... 2
Dr Baker’s defence to the Goodridges’ claim............................................................................ 3
4 July 1996 antenatal ultrasound film........................................................................................ 4
Applicable principles........................................................................................................................ 5
Submissions...................................................................................................................................... 10
Analysis.............................................................................................................................................. 11
Time within which cause of action was discoverable; limitation period........................... 11
Length and reason for delay on part of Mr and Ms Goodridge........................................... 15
Nature and extent of loss........................................................................................................... 28
Prejudice to Dr Baker; whether a fair trial can be held.......................................................... 28
Submissions of Dr Baker................................................................................................... 28
Submissions of Mr and Ms Goodridge........................................................................... 29
Analysis............................................................................................................................... 30
Duration of any disability or legal incapacity of Mr or Ms Goodridge arising on or after date of discoverability.................................................................................................................... 33
Extent to which Mr and Ms Goodridge acted promptly and reasonably once aware Dr Baker’s alleged act or omission might give rise to action for damages................................... 33
Steps taken by Mr and Ms Goodridge to obtain medical, legal or other expert advice, and the nature of the advice received........................................................................................... 34
Synthesising competing considerations.................................................................................. 34
Conclusion......................................................................................................................................... 35
HER HONOUR:
Mr Goodridge, a young adult, was born by emergency caesarean section. He says that due to birth asphyxia, he has cerebral palsy. Mr Goodridge, and his mother, allege that the treating obstetrician was negligent. They allege the obstetrician negligently failed to arrange for birth by elective caesarean section about 12 days earlier. They say he was in possession of a scan showing Mr Goodridge to be in a breech position. The obstetrician, now retired, denies he acted negligently. Further, he says that the allegations relate to events in 1996, which he does not recall, and that a fair trial cannot now be held. The issue for determination in this ruling is whether time ought to be extended pursuant to s 27K of the Limitations of Actions Act 1958 (Vic) (‘LAA’).
Evidence
Mr Goodridge, and his mother, Ms Goodridge, are the first and second plaintiffs respectively. They rely upon their affidavits and the affidavits of their solicitor, Anne Shortall. The affidavits are of:
(a) Ms Goodridge affirmed on 4 October 2022[1] and 2 December 2022;[2]
(b) Mr Goodridge affirmed on 4 October 2022;[3] and
(c) Ms Shortall affirmed on 6 July 2022,[4] 4 October 2022[5] and 22 March 2023.[6]
[1]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023) Second Plaintiff, Exhibit P1, Affidavit of Michelle Goodridge affirmed on 4 October 2022 (‘Exhibit P1’).
[2]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023) Second Plaintiff, Exhibit P2, Affidavit of Michelle Goodridge affirmed on 2 December 2022 (‘Exhibit P2’).
[3]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023) First Plaintiff, Exhibit P3, Affidavit of Adam Goodridge affirmed on 4 October 2022 (‘Exhibit P3’).
[4]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023), Exhibit P5, Affidavit of Anne Shortall affirmed on 6 July 2022 (‘Exhibit P5’).
[5]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023), Exhibit P6, Affidavit of Anne Shortall affirmed on 4 October 2022 (‘Exhibit P6’).
[6]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023), Exhibit P4, Affidavit of Anne Shortall affirmed on 22 March 2023 (‘Exhibit P4’).
Geoffrey Baker, the defendant, relies upon his affidavit sworn on 6 January 2023,[7] and the affidavits of:
(a) Ingrid Maria Nunnink, his solicitor, affirmed on 7 February 2023,[8] 15 March 2023[9] and 21 March 2023;[10] and
(b) John Arranga, solicitor, affirmed on 18 January 2023.[11]
[7]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023) Defendant, Exhibit D1, Affidavit of Geoffrey Baker sworn on 6 January 2023 (‘Exhibit D1’).
[8]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023), Exhibit D4, Affidavit of Ingrid Maria Nunnink affirmed on 7 February 2023 (‘Exhibit D4’).
[9]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023), Exhibit D5, Affidavit of Ingrid Maria Nunnink affirmed on 15 March 2023 (‘Exhibit D5’).
[10]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023), Exhibit D2, Affidavit of Ingrid Maria Nunnink affirmed on 21 March 2023 (‘Exhibit D2’).
[11]Tender of Evidence, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023), Exhibit D3, Affidavit of John Arranga affirmed on 18 January 2023 (‘Exhibit D3’).
Mr Goodridge, Ms Goodridge, Mr Baker, and Mr Arranga gave oral evidence and were cross-examined.
Background
Mr Goodridge was born on 27 July 1996. He had a complicated birth and was delivered via emergency caesarean section.[12] Mr Goodridge has been diagnosed with a mixed dystonic/spastic quadriplegic pattern of cerebral palsy.[13]
[12]Exhibit P3, [2].
[13]Ibid; Exhibit P1, [3].
Claims by Mr and Ms Goodridge
The central allegations in the amended statement of claim follow.[14]
[14]Amended Statement of Claim filed on 7 December 2022.
Dr Baker undertook obstetric care and management of Ms Goodridge. On 4 July 1996, she underwent an ultrasound. It noted that her baby (Mr Goodridge) was presenting as a footling breech. No abnormality was detected in him. His estimated foetal weight was above the 95th percentile (3888g). Upon receipt of the ultrasound, reasonable medical practice at the time required Dr Baker to arrange for Ms Goodridge to deliver her baby via elective caesarean section on about 15 July 1996. Dr Baker negligently failed to arrange that. He failed to inform Ms Goodridge that a footling breech carried with it risks of injury to the baby if born vaginally, and the preferable mode of delivery was elective caesarean section at 39 weeks gestation.
On 27 July 1996, Ms Goodridge went into spontaneous labour. She was admitted to Peninsula Hospital for management of the labour. Ms Goodridge was transferred to the operating theatre. Her baby was delivered via emergency caesarean section. During the labour, in the immediate period before delivery, her baby suffered birth asphyxia through severe hypoxic insult. As a result, her baby, namely Mr Goodridge, has cerebral palsy and dystonic quadriplegia (GMFCS level IV). Had he been delivered via elective caesarean section on about 22 July 1996, he would have avoided injury.
Ms Goodridge suffers from chronic adjustment disorder with mixed anxiety and depressed mood, and psychological trauma due to Dr Baker’s negligence. She claims medical and like expenses.
Dr Baker’s defence to the Goodridges’ claim
The allegations of negligence are denied.[15] Key points in the amended defence follow.
[15]Amended Defence filed on 4 January 2023.
Ms Goodridge consulted Dr Baker in 1996 for antenatal care up to the onset of labour, or until elective interventional delivery was planned. She was to attend Mornington Peninsula Hospital for the labour and delivery of her baby. He agrees there was an obstetric ultrasound examination on 4 July 1996, and notes the examination report states:
A single foetus currently presents as a breech with its spine lying anteriorly and to the right. Both legs are noted to be flexed and the foetus has an attitude of universal flexion.
Dr Baker admits that he did not arrange for Ms Goodridge to have an elective caesarean section on or about 15 July 1996, and says that reasonable antenatal medical practice did not require him to do so.
Dr Baker denies he was required to inform Ms Goodridge that a footling breech carried with it risks of injury to her baby if born vaginally. He denies that the preferable delivery mode was elective caesarean surgery at 39 weeks gestation.
Dr Baker admits that Ms Goodridge went into spontaneous labour and was admitted to Peninsula Hospital for management of her labour. He admits Mr Goodridge was delivered via emergency caesarean section. Dr Baker denies the allegations of birth asphyxia and consequently denies the allegation it caused Mr Goodridge to suffer from cerebral palsy and dystonic quadriplegia. Dr Baker denies that if Mr Goodridge had been delivered via elective caesarean surgery on about 22 July 1996, he would have avoided injury.
Dr Baker says that, at all times, he acted in a manner widely accepted by a significant number of respected practitioners in Australia as competent professional practice, and he is not negligent.
Dr Baker denies that he caused Ms Goodridge to suffer injury.
A limitations defence is pleaded.
4 July 1996 antenatal ultrasound film
After the pleadings above were filed, a copy of the film of the antenatal ultrasound was located.[16] The Goodridges’ solicitor caused it to be examined by an expert, Prof Mike O’Connor. He is an obstetrician and gynaecologist. Prof O’Connor opined that the scan indicated a footling or complete breech.[17] He opined that a footling or complete breech presentation should be delivered by caesarean section at about 39 weeks.
[16]Exhibit P4, [9].
[17]Exhibit P4, [13]; Conference notes dated 22 March 2023 contained in bundle exhibit ‘AS-1’ to Exhibit P4, 7.
Earlier, Prof O’Connor had provided a report without the benefit of viewing the film. This report, dated 10 September 2021, was based on the ultrasound report, which recorded a footling breech, and Peninsula Health records recording a footling breech at the time of labour.[18] A Peninsula Health record on the day of Mr Goodridge’s birth notes ‘primi breech’ and ‘was fully flexed but foot felt by Mr Baker last week’.[19] It includes a sketch of Mr Goodridge’s position and contains the note ‘breech mobile’.[20]
[18]Expert report of Prof Mike O’Connor dated 10 September 2021 contained in bundle exhibit ‘AS-1’ to Exhibit P6, 18.
[19]Peninsula Health record dated 27 July 1996 contained in bundle exhibit ‘AS-1’ to Exhibit P4, 323, 327, 328.
[20]Ibid, 323.
The parties both agree Mr Goodridge was in a breech position. What is now in contention is whether or not it was a footling or complete breech position.
Applicable principles
By amended summons, an application for extension of time is made pursuant to s 27K of the LAA. Sections 27D, 27F, 27K and 27L of the LAA are applicable and follow.
27D Limitation period for personal injury actions— general
(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire—
(a) the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b) the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.
…
27F Date cause of action is discoverable
(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—
(a) the fact that the death or personal injury concerned has occurred;
(b) the fact that the death or personal injury was caused by the fault of the defendant;
(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a cause of action that arises under Part III of the Wrongs Act 1958 is not discoverable before the date of death of the deceased.
27K Extension of limitation periods
(1) A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.
(2) Subject to section 27L, the court—
(a) may hear any of the persons likely to be affected by the application as it sees fit; and
(b) may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
(3) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
27LMatters to be considered in determining applications for extension of limitation period
(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e) the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2) To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a) whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff’s loss; and
(c)the nature of the defendant’s conduct.
…
The authorities are well-established. I gratefully adopt the summary given by Incerti J in Azzam v Commonwealth (‘Azzam’).[21]
[21][2019] VSC 484, [62]-[71] (‘Azzam’).
I adopt Kyrou J’s reasoning in Tucker v Barwon Health & Anor (‘Tucker’)[22] regarding the period in which Mr Goodridge was a minor: references to Mr Goodridge in s 27L are to be read as references to him as well as his capable parent, being Ms Goodridge.[23] I adopt Kyrou J’s reasoning regarding discoverability and s 27F(1)(b). That is ‘fault’:
… should be given its ordinary everyday meaning and in order for an action to be discoverable by a plaintiff, the plaintiff must know (or ought to know), among other things, that the personal injury, which is the subject of the plaintiff’s cause of action, was caused by an action which the defendant ought not to have performed, or should have performed differently, or by an omission by the defendant to perform an act which the defendant ought to have performed.[24]
[22][2008] VSC 229 (‘Tucker’).
[23]Ibid, [52].
[24]Ibid, [73]; see also Spandideas v Vellar [2008] VSC 198, [33].
Pausing there, Dr Baker submits that there is significant prejudice, and the onus is on the plaintiffs to show that it is not a material prejudice to the defendant: Brisbane South Regional Health Authority v Taylor (‘Brisbane South’).[25] He says that consideration of prejudice ought be determinative of the application. I reject these submissions. Brisbane South did not concern the LAA. In Tsiadis v Patterson (‘Tsiadis’),[26] Buchanan JA analysed Brisbane South. His Honour described the legislation as a different class of legislation to the LAA.[27] Buchanan JA stated the following principle:
Prejudice to the potential defendant is to be considered together with all the circumstances of the case, although in a particular case it may be very significant if it is so severe as to preclude a fair trial of the applicant’s claim. [28]
[25][1996] 186 CLR 541.
[26][2001] VSCA 138 (‘Tsiadis’).
[27]Ibid, [31].
[28]Ibid.
I apply the principle above to s 27L of the LAA. I adopt the reasoning of Kyrou J in Tucker. [29] In Tucker, Kyrou J applied the principles the Court of Appeal gave in the authorities Clark v McGuinness (‘Clark’)[30] and Tsiadis. Kyrou J described the Court of Appeal’s emphasis that under s 23A of the LAA, presumed prejudice is taken into account, and the onus is on the applicant to persuade the Court it is just and reasonable to extend the limitation period. Kyrou J applied the principles in Clark regarding ss 23A to s 27L of the LAA.
[29]Tucker, [46]-[49].
[30][2005] VSCA 108.
In Tucker, Kyrou J stated that the rationale for limitation periods discussed in Brisbane South ‘continues to have relevance’. Recently, the Court of Appeal observed in Griffiths v Nillumbik Shire Council (‘Griffiths’) that the statements of principle in Brisbane South ‘remain the yardstick’ whilst further observing that:
there is a general public interest in ensuring that litigation is brought and prosecuted in a timely fashion. Delay is productive of unfairness and prejudice: evidence is lost or diluted; witnesses may not be able to be called, their memories fade and reconstruction may take over … To put it bluntly … a limitation period … is not some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.[31]
[31]Griffiths v Nillumbik Shire Council [2022] VSCA 212, [64], [66].
Dr Baker submitted that no specific prejudice to the defendant is demonstrated in the overwhelming majority of authorities in which time was extended.[32] He submitted that Zantuck v Richmond Football Club & Ors (‘Zantuck’)[33] is an exception. Nonetheless, a fair trial could be held as other witnesses were available, and the concussion claim would be determined by expert evidence. Dr Baker submitted Zantuck is therefore distinguishable.
[32]Caven v Women’s and Children’s Health [2007] 15 VF 447 at 472 [79]; Azzam [156]; Axford v Gray (2013) VSC 664 [22], Hunt and Numurkah District Health Service v Holcombe (2018) VSCA 248, [32], [47], [53] (‘Holcombe’); Repco Corporation v Scardamaglia [1996] 1 VR 7 at 13; Spandidaos v Valler (2008) VSC 198 [72] and [75].
[33][2022] VSC 405.
I do not accept there is a general rule about specific prejudice. It is a consideration, pursuant to s 27L of the LAA, as is the consideration as to whether a fair trial may be held.
Dr Baker submitted that there were two authorities, with similar fact circumstances, that should be followed, namely Griffiths and Hickey v Women’s & Children’s Health Care Network (‘Hickey’).[34] In Hickey, Hedigan J held there was a real risk of significant prejudice and was not satisfied a fair trial could take place. In Hickey, a key witness, the perfusionist, may not have been able to give evidence, and the perfusion chart, which was likely to contain important information, could not be located. Dr Baker relied on the following conclusion by Hedigan J:
Whilst each case must turn on its own facts, it must be rare indeed that the Court would exercise its discretion to extend the time within which an action might be commenced nigh on quarter of a century after the relevant events. Whether or not the relevant doctors would have depended primarily upon written records or not, their capacity to have any recollection added to or illuminative of the written records must be seriously diminished over such a long period. With respect to the anaesthetic and surgical records, once again, it is likely that the capacity of the relevant doctors to add, through personal recollection, to the skeletal records is now lost. Even if the relevant doctors are not in the position of Mr Dodson, they are all 24 years older and, by and large, memory worsens with the passage of time. The document that cannot be found appears to me to be a critical document. Whether or not it supported the plaintiff’s case or the defendants’ case is impossible to evaluate. But the risk of its absence being prejudicial must be substantial. It is bound to have been a critical aid to recollection.
[34]Unreported, per Hedigan J, 11 June 1998: BC9802336.
Pausing there, I accept that medical notes may jog a doctor’s memory, and that memory worsens over time. However, as Hedigan J states, each case must turn on its facts. The observation about it being rare to extend time for actions nearly 25 years old, is just that. In each case, consideration must be given to the factors in s 27L of the LAA, applying the principles summarised in Azzam. Moreover, as already identified, here the critical documents, namely the report and film of the 4 July 1996 ultrasound have been located. So too Peninsula Hospital’s delivery records.
In Griffiths, the plaintiff had made an informed and deliberate choice not to proceed with his common law claim. There was no specific prejudice established, however ‘general or presumptive prejudice may well, with no more, be sufficient to justify a refusal by a Court to extend time.’[35] The general principles are applicable. However, Griffiths is distinguishable here because, as will be revealed, Ms Goodridge did not make a deliberate decision not to pursue a claim against Dr Baker on behalf of her son and herself.
[35]Griffiths, [112].
Submissions
The parties made written and oral submissions.
The Goodridges accept that a significant amount of time has flowed since the cause of action. However, the length of time is not the only factor in the synthesis. They say it is just and reasonable to extend time when they have acted reasonably. Mr Goodridge suffers from profound lifelong difficulties, and the defendant has failed to establish that he will not have a proper and fair trial. It is a relatively confined case.
Dr Baker says the following. Consideration of the factors leads overwhelmingly to the conclusion that an extension should not be granted. A fair trial cannot be held. There is no reason for the delay between 1998 and 2020. Dr Baker says that the Goodridges have not met the test required.
Where necessary, reference is made to other submissions below. As for the authorities relied upon: the principles are substantially agreed, and are well-established. Where necessary, I have addressed the authorities cited by the parties above.
Analysis
I will first address whether the Goodridges’ respective causes of action were discoverable pursuant to s 27F of the LAA, before turning to the factors in s 27L.
Time within which cause of action was discoverable; limitation period
Dr Baker says that Mr Goodridge’s claim was discoverable by 1 December 1999. Time is calculated from Ms Goodridge’s attendance with Mr Arranga, then of solicitors Ryan Carlisle Thomas, in 1998. Dr Baker allows a further 11 months for obtaining records and expert opinions. On the other hand, Mr Goodridge says that his claim was discoverable much later, in 2021, when he received the reports of medical experts Professors O’Connor and Harbord, which clarified there was negligence on the part of Dr Baker causing his injuries.
As cited above, s 27F(1) provides that a cause of action is discoverable on the first date a person knew or ought to have known the facts specified. Critically here, those facts include that the personal injury was caused by the fault of the defendant, Dr Baker. Section 27F(2) provides a person ought to know of a fact if it would have been ascertained had the person taken all reasonable steps before that date to ascertain the fact.
Pausing there, Mr Goodridge was a minor until July 2014, when he turned 18 years old. Section 27J(1)(a) provides that a person is ‘under a legal capacity’ while they are a minor, but not while in the custody of a ‘capable parent or guardian’.[36] Section 27J(4) defines a ‘capable parent or guardian’ as a ‘parent or guardian of the minor who is ‘not under a legal incapacity’. There is no dispute that Ms Goodridge is such a person. Accordingly, Mr Goodridge was not under a legal capacity by reason of being a minor.
[36]There is reference in s 27J to persons covered by guardianship or administration orders pursuant to the Guardianship and Administration Act 2019. They are not relevant here.
Section 27J(3) applies to the determination of when a cause of action is discoverable by a minor who is not under a legal capacity. Here, it has the following effect for determining discoverability while Mr Goodridge was a minor: the facts known, or ought to be known by Ms Goodridge, are deemed to be known, or ought to be known, by Mr Goodridge. As Kyrou J stated in Tucker:
the issue for the Court is what [capable parent] would have found out, had she taken the reasonable steps which she ought to have taken, rather than all steps which could be characterised as reasonable in the circumstances and which might have been taken. The issue is to be determined by reference to [the capable parent’s] knowledge, capacity and circumstances [at the relevant time].[37]
[37]Tucker, [76], applying Spandideas v Vellar [2008] VSC 198, [65].
The next question is whether, by taking reasonable steps, Ms Goodridge ought to have known that Mr Baker was allegedly at fault.
I accept that if Ms Goodridge had obtained Dr Baker’s records and further legal and medical advice, she would have ascertained Dr Baker was allegedly at fault. Expert medical evidence was required to ascertain the cause of action against Dr Baker. The issue is whether the steps to obtain Dr Baker’s records and obtain further advice were reasonable steps that Ms Goodridge ought to have taken.
Turning now to the evidence to take into account in assessing relevant circumstances.
As described later, I accept Ms Goodridge’s evidence that she believed that any fault lay with Frankston Hospital, not Dr Baker.
As detailed later in these reasons, I accept that Ms Goodridge believed that she would need to pay for two expert medical records costing $1,000 each, and she felt this was a gamble. I accept Mr Arranga’s evidence that he would have advised Ms Goodridge of the limitation period. At the time, the limitation period would have been six years after Mr Goodridge turned 18 years old, namely in July 2020.[38] Ms Goodridge did not give evidence that she recalled being advised this by Mr Arranga.[39] As discussed below, to the contrary, her evidence was that she thought it might be too late for a claim. I decline to draw an inference she acted in reliance upon advice of the limitation period expiring after Mr Goodridge turned 18 years old.
[38]A useful overview of the amendments is given by Hansen J in Curnow v Roman Catholic Thurst Corporation Diocese of Melbourne [2006] VSC 364, [28]-[31].
[39]Cf circumstances in Curnow, [12], [54].
However, the following evidence is relevant. Whilst Ms Goodridge did not recall the limitations advice given by Mr Arranga, her state of mind after the meeting was that there was “no pressing urgency” to bring a claim. That state of mind would have been reasonable in the context of being advised of the limitation period as it then was. That state of mind forms part of the circumstances that must be considered. Given the advice she would have received from Mr Arranga, it was a reasonable state of mind.
Ms Goodridge’s circumstances as the mother of a child with cerebral palsy and quadriplegia, must be taken into account. She was preoccupied with the care of her eldest child, and then shortly afterwards with another two children.
In all the circumstances, I am not persuaded that obtaining Dr Baker’s records and seeking further advice on whether Dr Baker was at fault was a reasonable step Ms Goodridge should have taken after consulting Ryan Carlisle Thomas.
I accept that the cause of action was not discoverable until 2021, after Ms Goodridge received advice from Slater & Gordon. The advice was given after Slater & Gordon obtained the expert reports from Professors O’Connor and Harbord.
What is the applicable limitation period? Section 27E provides the limitation period for personal injury actions for persons ‘under a disability’. Section 3(2) provides that “a person shall be deemed to be under a disability while he is a minor…” Section 27E(2) provides the limitation period is the earlier of: six years from the date on which the cause of action is discoverable, or 12 years from the date of the act or omission alleged to have resulted in the personal injury with which the action is concerned.[40]
[40]Section 27N(4) clarifies the limitations periods in the LAA apply to personal injury actions before 21 May 2003 not yet commenced. Different provisions apply for child abuse actions.
The alleged act or omission resulting in the alleged injuries to the Goodridges occurred in July 1996. At this time, Dr Baker allegedly failed to arrange an elective caesarean section. Applying the 12 year period, the limitation period for Mr Goodridge’s cause of action expired in July 2008.
As for Ms Goodridge, s 27D provides the limitation period is the earlier of: three years from the date on which the cause of action is discoverable, or 12 years from the date of the act or omission alleged to have resulted in the personal injury with which the action is concerned. It is common ground that this 12 year period applies to Ms Goodridge’s claim. The alternative date, following her attendance on Dr White, psychiatrist, is a later date.[41] Applying the 12 year period in s 27D of the LAA, the limitation period for Ms Goodridge’s cause of action expired in July 2008.
[41]Report of Dr Gregory White, psychiatrist, dated 31 August 2022 contained in bundle exhibit ‘MG-1’ to Exhibit P2.
Given the 12 year limitation period expired during the period Mr Goodridge was a minor, it is unnecessary to traverse the issue of discoverability for the period after.
There were submissions about whether or not Mr Goodridge became an ‘incapacitated person’ within the meaning of s 27J(4) after turning 18 years of age. If a person is under a legal incapacity, s 27J(2) has the effect of suspending the running of the limitation period for the duration of the incapacity.
I find, based on his physical disabilities, that Mr Goodridge is an ‘incapacitated person’ under s 27J(4). He is substantially impeded in managing his affairs concerning the proceeding because of his cerebral palsy and quadriplegia. This is not to say he cannot manage the proceeding. However, Mr Goodridge evidently requires significant assistance to overcome his substantial impediments to communication and travel.[42] I accept the following evidence given by Mr Goodridge:
I live with my mother and have NDIS support. I have a severe disability and have very limited mobility and very limited speech. I am fully dependent on my mother and carers. I worry about my future and maintaining as much independence as I can, taking into account my disability.[43]
[42]Community Solutions report by Karmen Beyton dated 21 July 2021 contained in bundle exhibit ‘AS-1’ to Exhibit P6, 93.
[43]Exhibit P3, [9].
I reject Dr Baker’s submission that a contrary conclusion should be drawn because Mr Goodridge does not have a litigation guardian in this proceeding. Litigation guardians must be appointed when a person is incapable of managing their affairs concerning the proceeding.[44] Mr Goodridge did not present as intellectually impaired. Although he is substantially impeded, he demonstrated in the hearing before me that he can manage his affairs, provided that he received significant assistance.
[44]Supreme Court (General Civil Procedure) Rules 2015 O 15.
Length and reason for delay on part of Mr and Ms Goodridge
In respect of the relevant period of delay:
The relevant delay is that between the accrual of the cause of action and the making of an application for an extension of time. In Hunt v Holcombe, the Court of Appeal rejected the submission that when considering whether there is a reasonable explanation for the delay, a wholly objective test is applied; rather, the approach was held to be as follows:
An examination of the reasonableness of an explanation for a delay, in issuing proceedings, must involve an appreciation and analysis of the personal factors that affect the particular applicant’s decision not to issue proceedings earlier. The question of reasonableness of an explanation for the delay, in any case, must depend on a number of factors that include the personal characteristics, knowledge and background of the particular applicant in question.[45]
[45]Azzam, [65].
Here, there is inordinate delay. It is more than 25 years since Mr Goodridge’s cause of action arose. There is delay in the commencement of Ms Goodridge’s claim.
I find that the reason for the delay in commencing Mr Goodridge’s claim was that Ms Goodridge was a devoted mother, and preoccupied with his care. I accept her evidence that she believed any fault lay with Frankston Hospital, not Dr Baker. Ms Goodridge referred to the cost of obtaining expert medical reports and her belief paying for them would be a gamble. I accept that evidence. However, I do not conclude that financial concerns about litigation caused delay. Turning now to the evidentiary basis for these findings.
Ms Goodridge completed a year 12 equivalent at school. After leaving school, she was self-employed with her husband, a carpenter. They had their own joinery business.[46] The business was sold in 1997, after her son was born, because she had no time to help. She was busy caring for her son, and pregnant with her daughter.[47]
[46]Transcript of Proceedings, Goodridge & Anor v Baker (Supreme Court of Victoria, S ECI 2022 00420, Ierodiaconou AsJ, 22 and 23 March 2023), 17-18 (‘Transcript’).
[47]Ibid, 59.
Ms Goodridge is the mother of three children. Her eldest child is Mr Goodridge. He was born when she was thirty years old, in 1996. Her next two children were born in 1998 and 2000.
Ms Goodridge was not advised about a potential psychological injury claim until after she had attended Slater & Gordon.[48] In August 2022, a psychiatric assessment was obtained from Dr Greg White. Ms Goodridge was advised that she had been assessed as having a permanent psychiatric impairment of ten per cent or more arising from her son’s birth and the injuries he sustained, and that her lawyers would take steps to pursue a claim on her behalf.[49]
[48]Exhibit P2, [2]-[4].
[49]Exhibit P2, [5]-[6]; Report of Dr Greg White dated 31 August 2022 contained in bundle exhibit ‘MG-1’ to Exhibit P2, 4.
Ms Goodridge’s evidence was that Mr Goodridge was diagnosed with cerebral palsy when he was six months old.[50] This evidence is consistent with a letter dated 25 February 1997, when Mr Goodridge was seven months old. The author is Ted Lowther, a paediatrician. It is addressed to Prof Adamson of Monash Medical Centre and records the following. Mr Goodridge’s parents ‘have been very happy with his progress [since discharge from Mercy Hospital], and have subsequently regarded him as normal.’[51] Mr Lowther examined Mr Goodridge and considered he had features of evolving cerebral palsy. He told Mr Goodridge’s parents. The letter records Ms Goodridge ‘was fairly devastated by my concern, having felt the problem was behind her … and felt that I just saw him on a bad day’. This statement is consistent with Ms Goodridge’s evidence that the diagnosis devastated and shocked her.[52]
[50]Transcript, 18; Letter from Dr Lowther to Prof Adamson dated 25 Feb 1997 contained in bundle exhibit ‘IMN-10’ to Exhibit D2, 4.
[51]Ibid.
[52]Transcript, 60.
Ms Goodridge’s evidence is that it was not until August 1997 that she first heard about [birth] asphyxiation at Mercy Hospital.[53] At about this time, she consulted Simon Fraser, a neonatologist at Mercy Hospital for Women. Mr Fraser examined Mr Goodridge on 22 July 1997. Ms Goodridge’s evidence is that Mr Fraser said ‘with asphyxiated at birth we don’t know what happens’, and she replied that no one had ever said that to her before.[54] However, he would not say another word when she questioned him about it.[55] She asked every doctor and specialist, ‘everybody we ever saw, and I could never get any answers’.[56] However at that time, she ‘wasn’t on a crusade to get justice and answers’.[57] Her priority was the care of her son:
My goal was - you can see here all the things I had to do with Adam by all the letters and all the appointments. My goal was to help him as much as I can with early intervention to give him the best possible outcome as an adult, and that was my goal at that time.[58]
[53]Ibid, 28, 49.
[54]Ibid, 28.
[55]Ibid.
[56]Ibid.
[57]Ibid, 29.
[58]Ibid.
Mr Fraser recorded the discussion with Ms Goodridge and her husband about their son’s birth in a letter dated 6 August 1997.[59] The letter states they appeared to have ‘a fair degree of unresolved anger and frustration’ about the management of his birth. Ms Goodridge said that she asked questions about how the asphyxiation might have occurred, and the doctor ‘backtracked severely at that point and maybe that’s where the anger and frustration come in, in that meeting.’[60] Dr Fraser records that he suggested, ‘that it would be worthwhile considering discussion of the perinatal management with their obstetrician as this may allow them to move on.’ Ms Goodridge’s evidence is that she did not take up this suggestion.[61]
[59]Letter from Dr Simon Fraser, neonatologist at Mercy Hospital for Women, to Dr Alex Chau, copied to Dr Lowther, dated 6 August 1997 contained in exhibit ‘IMN-11’ to Exhibit D2, 7.
[60]Transcript, 49.
[61]Ibid, 25.
Ms Goodridge’s evidence is that she subsequently asked other doctors about how the asphyxiation had occurred.[62] She was frustrated that ‘no one [at the Frankston or Mercy Hospitals] could explain to me what had happened and why it had happened … why he was asphyxiated – well, they hadn’t even said asphyxiated at that stage, but why he had cerebral palsy, what caused the cerebral palsy’.[63] She ‘knew something had gone wrong’ and thought during labour ‘every time I had a contraction he was being strangled by the cord’.[64] Ms Goodridge noticed when her son was born that he had ‘a sore around his neck from where the cord had been sitting and as soon as I saw that [thought], well, that’s been sitting around his neck all that time’.[65] Ms Goodridge believed that something had gone wrong in ‘labour, delivery’.[66] Dr Baker did not deliver her son, and she did not believe he had done anything wrong.[67]
[62]Ibid, 49.
[63]Ibid, 47, 49.
[64]Ibid, 50.
[65]Ibid.
[66]Ibid.
[67]Ibid.
Ms Goodridge’s evidence is that by the time Mr Goodridge was 15 months old, she was aware that cerebral palsy gave him spastic quadriparesis.[68] This evidence is consistent with a letter from Mr Lowther dated 21 October 1997 recording details about Mr Goodridge’s birth and that he had developed spastic quadriparesis.[69] She knew from when he was two and a half years old that he had serious lifelong cerebral palsy.[70]
[68]Ibid, 30.
[69]Letter from Dr Lowther to J Hough dated 21 October 1997 contained in exhibit ‘IMN-12’ to Exhibit D2, 12.
[70]Transcript, 44.
Ms Goodridge approached Ryan Carlisle Thomas for advice about Mr Goodridge’s birth and injury in 1998, when he was approximately two and a half years old.[71] By that time, she knew that his cerebral palsy had arisen because of his birth and was sufficiently serious to justify the bringing of an action, and that he may have a claim for compensation.[72]
[71]Exhibit P1, [4].
[72] Transcript, 31.
Ms Goodridge deposes:
At the time, I chose not to pursue a claim because I had two young children to look after. I was extremely busy caring for Adam and my other children were born shortly after Adam. As Adam was still so young, I was unsure what his future was going to hold for him. I hoped that he would not be severely disabled but as he got older it became clear that his disabilities were very severe
As I recall, Ryan Carlisle Thomas Lawyers also requested payment of funds up front. In addition to lawyer fees, I would have needed to pay for a report from an obstetrician and a paediatrician. Our financial position at the time meant that I could not justify the time, or the risk involved in pursuing a claim.
My husband and I had previously owned our own business making timber window frames. When Adam was born, we had to sell the business because I needed to stay home and look after him and could no longer help with the business. My husband became a truck driver to support us, but we were still worse off financially.
I did not have the energy or funds to pursue a claim at that time.[73]
[73]Exhibit P1, [5]-[8].
Her evidence was that ‘it was also a lot of money upfront that I didn’t have.’[74] It ‘felt like it was a gamble’.[75]
[74]Ibid, 33, 35, 36.
[75]Ibid, 58.
Under cross-examination, Ms Goodridge recalled that upfront fees had to be paid for two expert reports by a paediatrician and obstetrician.[76] As already explained, her memory is that the two reports cost around $1,000 each.[77] Mr Arranga gave evidence that was probably the amount for an expert report at that time.[78]
[76]Ibid, 35.
[77]Ibid, 47, 53.
[78]Ibid, 93.
Under cross-examination, Ms Goodridge said she did not recall Mr Arranga saying that, at no time, was a plaintiff required to pay lawyer’s fees in advance of a successful resolution of the proceeding.[79] She also gave evidence that she remembers bits of the meeting very well, including that Mr Arranga said she needed upfront money, but does not remember other parts of the meeting.[80]
[79]Ibid, 37.
[80]Ibid, 36.
Pausing there, Dr Baker submitted that Ms Goodridge gave contradictory evidence regarding the payment of upfront fees. In her affidavit, she deposed that Ryan Carlisle Thomas requested fees up front, and that she needed to pay for two expert reports in addition to lawyer fees.[81] On the other hand, under cross-examination, she said that she was required to pay for expert reports upfront and ‘could not recall’ lawyer fees.[82] There is no contradiction. The reference ‘I can’t recall that’ was in response to a statement from counsel that she had earlier given evidence that she did not have to pay upfront fees.[83] Ms Goodridge agreed that Mr Arranga told her that if a matter was investigated by obtaining expert opinions, and did not continue, there would be no lawyer fees charged.[84] Ms Goodridge appeared confused about the distinction between lawyer fees and expert fees. Under cross-examination, when asked about upfront lawyer’s fees she answered ‘upfront, um, paediatrician and obstetrician’.[85] She was asked ‘and what about the lawyer’s fees?’ Ms Goodridge recollected there were fees and she did not know about the lawyer’s fees ‘but definitely for the two experts though’.[86] Ms Goodridge repeatedly recalled Mr Arranga saying she needed to pay fees upfront.[87]
[81]Exhibit P1, [6].
[82]Ibid, 36.
[83]Ibid.
[84]Ibid, 35.
[85]Ibid.
[86]Ibid, 35.
[87]Ibid, 36, 40, 41, 42.
In 1998, when the plaintiffs consulted Ryan Carlisle Thomas, Mr Arranga worked there. At that time, he was employed by Ryan Carlisle Thomas as a solicitor practising in medical negligence.[88] He saw most of the clients presenting with a possible medical negligence claim.[89] Mr Arranga had no particular recollection of the plaintiffs.[90] His evidence is limited to his recollection of his usual practice in 1998.[91] The first consultation was free.[92] It was to obtain a basic understanding of the potential claim.[93] The following steps would depend on what was discovered during the consultation.[94] If the consultation concerned a child with cerebral palsy, depending on the instructions given, he would initially focus on both the antenatal issues and the conduct of delivery.[95] His next step would generally be to obtain relevant records to assess.[96] Mr Arranga would mention to the client that it was important to preserve medical records and obtain them to identify whether there was a case.[97] He would also probably mention the following.[98] If he looked at the records and thought there might be a case, he would tell the client they needed to get two expert reports, one on liability and one on causation.[99] To the best he can recollect, in 1998, it was probably about $1,000 for a liability report and a little bit more for the causation report.[100] If the records were obtained and the case did not look strong, then the client might have to pay for those expert reports.[101] Conversely, if there was a reasonable case, Ryan Carlisle Thomas would not seek money from the client but recover those from the other party.[102] He would have informed a client that if they lost their case, there could be a cost order against them and then, if the client had assets, they would be at risk.[103] His evidence was that his usual practice was to say that no lawyer’s fees would be required to be paid unless there was a successful resolution of the matter, and those fees were not required to be paid by the client before a successful resolution of their case.[104]
[88]Exhibit D3, [4].
[89]Ibid, [6].
[90]Transcript, 89; Exhibit D3, [5], [12].
[91]Ibid.
[92]Exhibit D3, [7(c)].
[93]Transcript, 90; Exhibit D3, [7].
[94]Transcript, 90; Exhibit D3, [8]-[10].
[95]Transcript, 90.
[96]Ibid.
[97]Transcript, 91, 93; Exhibit D3, [8]-[9].
[98]Transcript, 92.
[99]Transcript, 92; Exhibit D3 [8]-[9].
[100]Transcript, 93.
[101]Transcript, 92; Exhibit D3, [9(h)].
[102]Transcript 93; Exhibit D3 [8(j)], [9(g)].
[103]Transcript 93.
[104]Exhibit D3, [7]-[8].
I accept Mr Arranga’s evidence. Both he and Ms Goodridge presented as honest witnesses. I accept Ms Goodridge only retained part of the information that he relayed to her about fees, and honestly did not recall the different permutations that were explained to her, which depended on Ryan Carlisle Thomas’ assessment of the case. She focused on the cost of obtaining expert reports, and perhaps this was because a specific fee range was given to her. The fee range she recollects is consistent with Mr Arranga’s evidence as to the costs of expert reports at that time. I conclude that she was confused about lawyer’s fees, misbelieving that she would have to pay them upfront.
In 1998, it was Mr Arranga’s usual practice to inform a client about the limitation period during the first consultation, and by a subsequent letter.[105] He would have mentioned, at that time, that the limitation period for a child’s claim would be six years after a child turned 18 years old, so in effect, until the child was 24 years old.[106] Ms Goodridge has no recollection of Mr Arranga giving this advice. She did not recall the discussion with Mr Arranga about time limits.[107] As already described, her recollection is that there was no pressing urgency.[108]
[105]Transcript, 95, 96; Exhibit D3, [8]-[11].
[106]Transcript, 95; Exhibit D3, [7]-[10].
[107]Transcript, 54.
[108]Ibid, 57.
I accept the evidence given by Mr Arranga. Given his usual practice, I accept that he would have advised Ms Goodridge of the time limits.
Ms Goodridge’s evidence is that she knew there were time limits, possibly from television.[109] I conclude that she was aware there were time limits, but forgot the advice given by Mr Arranga about the actual time limit, and then took no steps to find out the time limit until consulting Slater & Gordon.
[109]Transcript, 44.
When asked why she did not return to Ryan Carlisle Thomas, she answered:
I can’t tell you why, I just know there was so much going on that life was more important at that time.[110]
[110]Ibid, 32.
I accept Ms Goodridge’s evidence that she was preoccupied: ‘there was just multiple things happening’.[111] Ms Goodridge was preoccupied with the care of Mr Goodridge. There were many medical appointments, and she felt she was constantly at appointments.[112] They were often during school hours.[113] She regularly had to go to the school. For instance, her son would fall out of his chair, or an aide would not show up, so she would go in.[114] At times, sometimes two or three times a year, she would need to call an ambulance for emergency care.[115] The medical records corroborate the frequent medical appointments that she attended with her son.[116] She drove him to and from primary and high school, and university.[117]
[111]Ibid, 61.
[112]Ibid, 58.
[113]Ibid, 61.
[114]Ibid.
[115]Ibid, 59.
[116]For instance, see the medical records contained in Exhibit P4 relating to Mr Goodridge.
[117]Transcript, 61.
Ms Goodridge plainly devoted herself to the care of Mr Goodridge. In addition to caring for him, she had care of his two younger siblings. Indeed, she took a younger sibling to the appointment with Ryan Carlisle Thomas. In all the circumstances, including the relative ages of the three children, caregiving must have been highly demanding. Dr Baker submitted that when Mr Goodridge went to school, there was time for his mother to pursue legal advice. Perhaps so. However, Ms Goodridge was evidently preoccupied with the care of Mr Goodridge.
Ms Goodridge denied making a conscious decision in 1998 not to pursue litigation on behalf of her son.[118] She stated:
I never decided not to pursue litigation. I kept John Arranga’s card in my purse. I have it to this day; I still have it. That was always in the back of my mind that I would get to that point sometime.[119]
[118]Ibid, 38.
[119]Ibid.
I accept Ms Goodridge’s evidence. I reject the submission that she deliberately decided not to commence proceedings.
Ms Goodridge believed that any fault lay with Frankston Hospital, not Dr Baker.[120] I accept this was her belief. It is consistent with the following evidence. Ms Goodridge obtained records from the hospital, and did not obtain records from Dr Baker.[121] Ms Goodridge retained Mr Baker as her obstetrician for two subsequent pregnancies.[122] The children were not delivered at Frankston Hospital as she did not wish to return there.[123]
[120]Ibid, 53, 63.
[121]Ibid, 53, 54.
[122]Ibid, 50, 51.
[123]Ibid, 51.
Ms Goodridge’s belief that Mr Baker was not at fault is consistent with her consulting Mr Baker for gynaecological advice. A letter records that Ms Goodridge attended Dr Baker for gynaecology advice in November 2010.[124] It does not mention Dr Baker having previously been Ms Goodridge’s obstetrician. It refers, in passing, to her ‘children aged 14, 12 & 10’. Mr Baker’s evidence is that, had Ms Goodridge told him that her son had cerebral palsy when she consulted him for gynaecological advice in 2010, he would have recorded that in his handwritten notes and the correspondence, but there is no such record.[125] Ms Goodridge has no recollection of the consultation.[126]
[124]Exhibit ‘IMN-15’ contained in Exhibit D2, 17.
[125]Exhibit D1, [13].
[126]Transcript, 43.
A note at about the time of Mr Goodridge’s second birthday records that it was arranged for him to attend an ABI clinic.[127] Ms Goodridge’s evidence is that she had not seen the note previously.[128] It states that Mr Goodridge has spastic diplegia category GMFCS IV. Ms Goodridge understood GMFCS IV to be at the middle towards more severe end of the scale.[129] It notes neonatal asphyxia. Ms Goodridge understood this to mean he was asphyxiated at birth, strangled by his umbilical cord. She understands there was a lack of oxygen at birth and it was likely someone’s fault.[130]
[127]Letter from Royal Children’s Hospital dated 24 July 2008 contained in exhibit ‘IMN 12’ to Exhibit D2, 10.
[128]Transcript, 27.
[129]Ibid.
[130]Ibid.
Ms Goodridge also gave the following evidence:
I was very frustrated with the way I was treated after his birth. I was treated like I was a stupid new mother that didn’t know what babies do. Um, no one would tell me exactly what happened, and I wanted some answers basically from some doctor to tell me what had occurred.[131]
[131]Ibid, 25.
After attending Ryan Carlisle Thomas in 1998, Ms Goodridge took no steps between then and 2020 to pursue litigation on behalf of her son.[132] She agreed when it was put to her that it was a conscious decision, that she was busy and concerned about money, and therefore decided not to pursue litigation.[133]
[132]Ibid, 29, 39.
[133]Ibid, 39.
Ms Goodridge’s evidence was that she did not recall Mr Arranga telling her about a limitation period.[134] However, she was aware that time limits existed.[135] Her evidence was she had watched television and knew that that ‘there are statute of limitations in America… I knew that time limits do exist, but I didn’t know what it was, or even – even if it applied in this case.’[136] Given this evidence, I decline to draw the inference that her counsel submitted I should, namely that a reason for the delay in bringing the litigation was because Ms Goodridge had a recollection that Mr Arranga had told her the limitations period would not expire until after Mr Goodridge became an adult.
[134]Ibid, 40, 54.
[135]Ibid, 44.
[136]Ibid.
Ms Goodridge told Mr Goodridge about his birth when he was 19 years old.[137] She thought ‘that it might be too late to pursue a claim, but it started us thinking about seeking legal advice again.’[138] Mr Goodridge did not want to know about his birth and ‘just wanted to be a normal kid’.[139] Mr Goodridge recalls his mother saying something about her concerns that things had gone wrong during his birth. It was very brief and he did not say anything because it was mainly an open-ended discussion between his parents.[140] His mother said she had approached a lawyer for advice when he was about two and a half years old, and it made him think about asking for legal advice.[141]
[137]Exhibit P1, [10]; Exhibit P3, [4].
[138]Exhibit P1, [10].
[139]Transcript, 45.
[140]Ibid, 67.
[141]Exhibit P3, [5].
Mr Goodridge’s evidence is that he knew when he was 18 years old that the cerebral palsy had arisen because of events around his birth, and because of a difficulty with the development of his brain.[142] He believed that the brain injury could not have been avoided.[143]
[142]Transcript 66, 67, 69.
[143]Ibid, 66.
From his internet research at 19 years old, he knew people had sued doctors regarding cerebral palsy.[144] He didn’t give much thought as to whether he should be making inquiries about whether he could.[145] He did not ask his doctors why he had cerebral palsy.[146] Mr Goodridge said that ‘just because I have .. cerebral palsy doesn’t automatically mean I would consult with a lawyer.’[147]
[144]Ibid, 66, 70.
[145]Ibid, 67.
[146]Ibid.
[147]Ibid, 70.
Mr Goodridge did not seek legal advice because he ‘didn’t know the true events’, it was a ‘very long time ago’, and he is shy and didn’t want to discuss it.[148] He was interested in pursuing a claim but thought it would likely be too late.[149] Mr Goodridge was unaware until he approached Slater & Gordon that a time limit applied to his claim.[150] That is, he ‘knew nothing around the actual time limit’.[151]
[148]Ibid, 68.
[149]Exhibit P3, [6].
[150]Ibid, [8].
[151]Transcript, 69.
Mr Goodridge has completed a Bachelor of IT at LaTrobe University, and is working as a software engineering specialist in a graduate program.[152] His evidence is that he can make his own decisions.[153] Mr Goodridge is, however, fully dependent on his mother and carers.[154] He resides with his mother.
[152]Ibid, 65.
[153]Ibid, 70.
[154]Exhibit P3, [9].
The catalyst for seeking legal advice again was a discussion with the father of a child with cerebral palsy. Ms Goodridge deposes the following:
In or about late February/early March 2020 I travelled to Phillip Island with my family. While there, a man was riding his bicycle and saw us unloading Adam’s wheelchair from the back of our van. He stopped and told us that his son also had cerebral palsy and that he had pursued a legal claim relating to that. He encouraged us to think about doing the same. Adam was present and heard the conversation take place.
Adam was older, and I had started to worry about his future and who would be there to look after him.
That conversation at Phillip Island triggered us to start thinking about whether we should seek legal advice again. We approached Slater and Gordon for advice in early March 2020 approximately shortly after the trip to Phillip Island.
I contacted Slater and Gordon because of that stranger’s suggestion and encouragement and because we were worried about Adam’s future. Since doing so, I believe that I have undertaken everything that Ms Shortall, who acts for me in this case, has advised me to do.[155]
[155]Exhibit P1, [11]-14]; see also Exhibit P3, [7]-[8].
On about 10 March 2020, the plaintiffs had an initial client appointment with Slater & Gordon to investigate Mr Goodridge’s medical negligence claim.[156] On the same date, they engaged Slater & Gordon.[157] Shortly afterwards, Slater & Gordon requested Ryan Carlisle Thomas transfer their file.[158] A few months later, Ryan Carlisle Thomas informed Slater & Gordon that Ms Goodridge had sought advice from their firm in 1998, but they did not hold records for more than seven years.[159] After concluding medical investigations, Slater & Gordon caused Mr Goodridge’s writ and statement of claim to be filed on 15 February 2022.[160] It was served on Dr Baker shortly afterwards.[161] On 4 May 2022, he filed a defence pleading the LAA. On 7 July 2022, the application to extend time was filed.
[156]Exhibit P6, [4].
[157]Ibid, [5]-[6].
[158]Ibid, [8].
[159]Ibid, [23].
[160]Ibid.
[161]Ibid, [66].
The delay is understandable given Ms Goodridge’s preoccupation with caring for her son and his high needs. I accept Mr Goodridge’s evidence and explanation for the delay in seeking legal advice as an adult. The nature of Mr Goodridge’s incapacities, discussed above, also explains this delay.
As to Ms Goodridge’s claim, it was made by the amended statement of claim filed on 7 December 2002. I accept Ms Goodridge’s evidence, discussed above, that she was unaware of her claim until so advised by Slater & Gordon. The delay is understandable given this, the other circumstances of her life described above, and particularly her preoccupation with caring for her son.
I find the reasons for delay weigh in favour of extending time.
As a matter of completeness, I will address the following submission by Dr Baker: it should be concluded that it was not the intention of Parliament to allow plaintiffs to bring proceedings 25 years after events. It was submitted that this conclusion should be drawn from the Second Reading Speech on 21 May 2003, concerning amendments to the LAA.[162] I reject that submission. The principles concerning the LAA, cited above, are well-established, and I am bound to follow them.
[162]Victoria, Parliamentary Debates, Legislative Assembly, 21 May 2003, 1781, 1782, 1784, 1785 (SP Bracks).
Nature and extent of loss
Given that it is alleged that negligence caused Mr Goodridge to suffer a mixed dystonic/spastic quadriplegic pattern of cerebral palsy, the nature and extent of Mr Goodridge’s alleged loss is very significant. Given Dr White’s diagnosis of Ms Goodridge’s psychiatric state, the extent of her alleged loss is substantial. These factors weigh in favour of granting the extension.
Prejudice to Dr Baker; whether a fair trial can be held
Submissions of Dr Baker
There is general and specific prejudice such that a fair trial cannot be held. There is significant general prejudice because the length of the delay, 25 years, is inordinate. There is significant specific prejudice by the effluxion of time, the absence of medical records and the absence of critical films. If this matter proceeds to trial, Dr Baker will be required to defend a claim brought on evidence about which he cannot give instructions or provide records.
Dr Baker has no recollection of Ms Goodridge. He has no recollection of Mr Goodridge having cerebral palsy prior to being informed by his solicitors.[163] Memory deteriorates over time.
[163]Transcript, 88.
Dr Baker’s records have been lost or misplaced. They have not been deliberately destroyed. They would likely be easily found if the claim had been brought in time.
Dr Baker refers to brain CT scans of Mr Goodridge, taken when he was quite young, that are missing. The CT Brain scan from 30 July 1996 and CT head images from 5 August 1996 are unavailable.[164] The reports of the scans are available, but not the actual film.
[164]Exhibit P6, [59].
The records of Dr Lowther, Mr Goodridge’s treating paediatrician, are unavailable.[165] No documents were produced in response to a subpoena addressed to him.
[165]Exhibit P4, [14], [17], [26].
The records held by Ryan Carlisle Thomas are not available.[166]
[166]Ibid.
The Goodridges have not shown that an extension will not result in material prejudice to Dr Baker. This is a determinative factor.
Submissions of Mr and Ms Goodridge
The onus is on Dr Baker to establish specific prejudice. The effluxion of years will lead to a degree of prejudice. The prejudice is not sufficient to deprive the parties of a fair trial.
Even if Mr Goodridge brought his claim within time, it is unlikely that Dr Baker would have much recollection of the treatment of Ms Goodridge because the care itself was unlikely to be memorable.
The issues here are confined.[167] Mr Goodridge’s allegations are based on the opinions of experts: Professors O’Connor and Harbord. Both formed their views based on available medical records. The substance of Mr Goodridge’s claim is relatively straightforward, based on an antenatal ultrasound. The films of that ultrasound, dated 4 July 1996, are available. In addition, the discharge notes assert that it was a known breech and Dr Baker had felt a foot the previous week. According to Prof O’Connor, if it is a complete or footling breech, then in 1996 that was a basis for Dr Baker to have advised Ms Goodridge of the importance of elective caesarean surgery.
[167]The Goodridges rely on Hunt v Holcombe [2018] VSCA 248 [55].
Dr Baker will have the opportunity to obtain expert evidence as to the standard of care in 1996 concerning breech presentations.
There are missing brain scans of Mr Goodridge, however, there is no evidence this will prejudice Dr Baker. Prof Harbord was able to provide his opinion without recourse to the scans. There are ample hospital records for experts to examine.
As to Dr Baker’s notes, he has not established they do not exist. The evidence is to the contrary. If they cannot be located, it is the fault of Dr Baker.
Any specific prejudice suffered by Dr Baker is not significant enough to deprive him of a fair trial, or to weigh heavily against a finding that it is just and reasonable to extend the limitation period.
Analysis
Dr Baker does not recall delivering Mr Goodridge’s younger siblings. He had forgotten and only became aware of this during the hearing.[168] His evidence is that it was his usual practice to take the antenatal records from one pregnancy and put them together in an envelope with the records of subsequent pregnancies.[169] In other words, he would collate the records so that the records for an earlier pregnancy would be kept with a later pregnancy. Dr Baker believes that the same envelope will enclose the antenatal cards of all three Goodridge siblings.[170]
[168]Transcript, 147.
[169]Ibid, 140, 147.
[170]Ibid, 142.
Dr Baker’s evidence is that in 1995 or 1996, he destroyed patient records. There is “not a chance” that he destroyed records after that date.[171] The records were initially kept in a filing cabinet in his consulting rooms.[172] After four or five years, they would be put into boxes and held in an accessible storage area in Carrum Downs.[173] Seven or eight years ago, the records were moved under his house.[174]
[171]Ibid, 143, 147.
[172]Ibid, 144.
[173]Ibid, 145.
[174]Ibid.
After becoming aware of being the obstetrician for Mr Goodridge’s younger siblings on the first day of the trial, and that they were born in 1998 and 2000, Dr Baker went home to check his records. His records are stored in 34 plastic boxes underneath his house.[175] He searched by year of birth for the youngest sibling, and then by surname. The search took about two hours on the evening of the first day of hearing, and his wife aided him.[176] He spent another hour searching on the morning of the second day of the hearing. He could not locate any records relating to Ms Goodridge’s pregnancy with Mr Goodridge.[177] There are thousands of records. He has not been through every record.[178] He has not previously found that records have been put into the box for the wrong year.[179] Dr Baker cannot account for the missing history or envelope regarding the Goodridge children and thinks they have been lost or misplaced.[180] He conceded it would be unusual for the envelope to simply disappear, and agreed that the likelihood is that the records are still in existence.[181]
[175]Ibid, 141.
[176]Ibid, 140.
[177]Ibid, 141.
[178]Ibid, 148.
[179]Ibid, 149.
[180]Ibid, 145, 147.
[181]Ibid, 148.
I find Dr Baker’s records of antenatal care in respect of Mr Goodridge have been misplaced. Given his evidence that they have not been destroyed, there is a real possibility that they will be found, perhaps in one of the plastic storage crates. Nevertheless, I do accept there is currently specific prejudice to Dr Baker regarding his missing records. He must bear some responsibility for the misplacement of the records.
Dr Lowther’s file is unavailable. However, as outlined above, there is contemporaneous correspondence from him regarding Mr Goodridge that is available.
Dr Baker submits that the lack of witness availability distinguishes the circumstances here from Azzam. There is no evidence as to whether or not inquiries have been made of witnesses at Frankston Hospital or elsewhere. However, medical records are available for Mr Goodridge’s birth and neonatal care.
The records of Ryan Carlisle Thomas are not available. However, Mr Arranga gave evidence about his usual practice. There was one initial consultation and no medical records were provided. If the consultation notes existed, they would be of limited probative value.
Critically, the antenatal ultrasound film dated 4 July 1996 is available.[182] Importantly, there are medical records available from Mr Goodridge’s birth and childhood.[183] The images of Mr Goodridge’s brain taken on 30 July 1996, and of his head taken on 5 August 1996, are no longer in existence or missing.[184] However, the reports on those images are available.[185]
[182]Exhibit P4, [9].
[183]Ibid.
[184]Email from EMR Reception to Slater & Gordon dated 21 July 2021 contained in bundle of exhibit ‘AS-1’ to Exhibit P6, 16.
[185]Exhibit P6, [59].
There is prejudice arising from the inordinate delay. There is specific prejudice arising from Dr Baker’s misplaced records, his lack of recollection, and the missing brain scans. Dr Baker has no recollection of treating Ms Goodridge.
However, here, expert evidence will be critical to determining Mr Goodridge’s claim. Hunt and Numurkah District Health Service v Holcombe[186] is applicable: expert medical evidence will primarily address the issues here.[187] I am satisfied that there are sufficient records for experts to opine on the topic of whether or not Dr Baker should have arranged for birth by elective caesarean in circumstances where the ultrasound allegedly indicated a footling or complete breech. Indeed, Prof O’Connor has already provided an opinion in this regard.[188] I reject Dr Baker’s submission that he will be unable to obtain an expert opinion.
[186](2018) VSCA 248.
[187]Holcombe, [55].
[188]See: notes of conference with Prof O’Connor dated 21 March 2023, and signed by Prof O’Connor contained in bundle of exhibit “AS-1’ to Exhibit P4.
Given that experts can opine on the critical issue based on available records, I find that the prejudice to Dr Baker is not such that a fair trial cannot be held.
Duration of any disability or legal incapacity of Mr or Ms Goodridge arising on or after date of discoverability
I refer to the discussion above. Ms Goodridge is a capable parent. Under cross-examination, Ms Goodridge agreed that she has never been incapacitated with her illness arising from the circumstances of her son’s birth, and has been able to conduct her life caring for her children, and has recently begun working.[189]
[189]Transcript, 45.
As to Mr Goodridge, I reiterate the finding above. He is a person under a legal incapacity. Nevertheless, for most of the period, Mr Goodridge was a minor, and his mother was a capable parent. Accordingly, overall, I will assess this factor neutrally.
Extent to which Mr and Ms Goodridge acted promptly and reasonably once aware Dr Baker’s alleged act or omission might give rise to action for damages
The Goodridges were not aware that Mr Goodridge may have an action in damages against Dr Baker until after consulting Slater & Gordon, and obtaining expert reports from Professors O’Connor and Harbord. Ms Goodridge was not aware of her claim until after consulting Slater & Gordon and obtaining the expert report of Dr White. The Goodridges acted promptly and reasonably once becoming aware of the claims. This weighs in favour of the extension.
Steps taken by Mr and Ms Goodridge to obtain medical, legal or other expert advice, and the nature of the advice received
I have already outlined the steps taken by Ms Goodridge to obtain advice after the birth of her son.
I will now respond to several submissions made by Dr Baker.
Dr Baker refers to the period between 1998 and 2014 when Ms Goodridge made no reasonable inquiries, despite carrying Mr Arranga’s card in her wallet. He says that the reasons given by the Goodridges for delay should not be accepted as reasonable. He says that the evidence by Ms Goodridge that there was so much going on, and life was more important at the time, is not a basis on which time should be extended. Dr Baker submits that it is not reasonable to extend time on the basis that Ms Goodridge was busy.
Ms Goodridge did not make inquiries with Dr Baker, as had been suggested by Dr Fraser. Nor did she seek medical records from him, as Mr Arranga likely suggested.
Dr Baker submits that given the seriousness of Mr Goodridge’s medical condition, it was imperative to pursue litigation in a timely manner. As discussed above, I accept that Ms Goodridge was aware of her son’s medical condition from an early age. I also accept that Ms Goodridge was aware of the severity of his condition and that she may have a legal claim. However, all relevant circumstances need to be taken into account, not only that circumstance. The circumstances, described above, include her belief that the claim lay against Frankston Hospital, not Dr Baker, and that she emerged from the meeting with Mr Arranga believing there was ‘no pressing urgency’ to pursue a claim.
Synthesising competing considerations
The inordinate delay causes general prejudice. There is also an element of specific prejudice. These matters weigh against extending time. Nevertheless, the prejudice is not such that a fair trial cannot be held. Moreover, these factors must be synthesised with the following factors, which weigh in favour of the extension of time. They are the reasons for the delay, the very significant nature of Mr Goodridge’s alleged loss, and the Goodridges’ prompt and reasonable action upon receiving advice from Slater & Gordon of their potential claims.
Synthesising the competing considerations, I am satisfied that it is just and reasonable to extend time.
Conclusion
I will make orders extending the time for Mr and Ms Goodridge to bring their claims.
SCHEDULE OF PARTIES
| S ECI 2022 00420 | |
| BETWEEN: | |
| ADAM GOODRIDGE | First Plaintiff |
| MICHELLE GOODRIDGE | Second Plaintiff |
| - v - | |
| GEOFFREY BAKER | Defendant |
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