Greenfield v Sydney Local Health District t/as Royal Prince Alfred Hospital

[2020] NSWSC 1479

Supreme Court

New South Wales

Medium Neutral Citation:

Greenfield v Sydney Local Health District t/as Royal Prince Alfred Hospital [2020] NSWSC 1479

Hearing dates:

21 September 2020

Date of orders:

27 October 2020

Decision date:

27 October 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The plaintiff’s summons filed 24 April 2019 is dismissed.

(2) The statement of claim filed 2 October 2019 is dismissed.

(3) Costs are reserved.

Catchwords:

LIMITATION OF ACTIONS — Compensation to relatives claim — Extension of limitation period — Limitation Act 1969 (NSW) s 60H — Exercise of discretion to grant extension — Inadequate explanation for delay — Application refused

Legislation Cited:

Compensation to Relatives Act 1897 (NSW)

Limitation Act 1969 (NSW), ss 19, 60D, 60E, 60F, 60G, 60H, 60I

Cases Cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1

Greenfield v Australian Catholic University [2010] NSWADT 104

Prince Alfred College Inc v ADC (2016) 258 CLR 134; (2016) 335 ALR 1

Category:

Procedural and other rulings

Parties:

Susana Greenfield (Plaintiff)
Sydney Local Health District t/as Royal Prince Alfred Hospital (Defendant)

Representation:

Counsel:
S Kettle with C Faunt (Defendant)

Solicitors:
Self-Represented (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2019/127648

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is an application by the plaintiff to extend the time in which to commence proceedings in relation to the Compensation to Relatives Act 1897 (NSW).

2. On 3 February 2020, the plaintiff filed a notice of intention to appeal, which the defendant accepts functions as the plaintiff’s application for an extension of time to commence proceedings under the Limitation Act 1969 (NSW). By way of affidavit filed on 30 April 2020, the plaintiff deposed that she relied upon s 60H of the Limitation Act in support of her application.

3. The plaintiff is Susana Greenfield. The defendant is the Sydney Local Health District t/as Royal Prince Alfred Hospital (“RPAH”). The plaintiff represented herself. The defendant was represented by Mr Kettle of counsel. The plaintiff relied upon her affidavits dated 3 December 2019 and 17 September 2020. RPAH relied upon its court book. The hearing took place via video link. The plaintiff applied for an adjournment on the basis she had (again) applied for legal aid on 16 September 2020, 5 days before the hearing date. I refused the adjournment and gave ex tempore reasons.

Procedural history

4. On 24 April 2019, the plaintiff filed a summons in the High Risk Offenders List to “lay charges” against various medical officers and staff of RPAH arising out of the death of her beloved husband, Peter Greenfield (“the deceased”) at RPAH on 4 August 1997.

5. On 11 July 2019, Johnson J ordered that the plaintiff be referred to the Registrar under the pro bono scheme, limited to advice in relation to the proceedings. Pro bono advice was not forthcoming.

6. On or about 7 August 2019, the plaintiff purported to serve a statement of claim upon RPAH. On 2 September 2019, RPAH served an unsealed statement of claim upon its solicitors.

7. On 2 October 2019, the plaintiff filed a statement of claim seeking relief in the amount of $1,408,878 plus interest and filing fees in relation to a “Registered Nurse’s Income and Superannuation Loss”, “22 years of Pain and Sufferings from Physical and Psychological Damages”; loss of spousal consortium and loss of parental consortium for the deceased’s daughter.

8. As best as I can understand from the statement of claim, the plaintiff alleges that:

1. doctors and nurses owed the deceased a duty of care, as they were accountable for the deceased’s admission to RPAH between 30 July 1997 and 4 August 1997;

2. the doctors and nurses breached that duty by failing to meet “an appropriate standard” in “administering patient care and medications”;

3. the breach was occasioned by a combination of medication administered to the deceased, one of which the plaintiff alleges is used as a lethal injection in “euthanasia”, resulting in “severe and fatal drug interactions” while the deceased was manacled to a trolley;

4. the plaintiff suffered from a diagnosed psychiatric injury, Post Traumatic Stress Disorder (“PTSD”), upon witnessing the deceased’s death; and

5. the plaintiff disputes the causes of death as recorded on the deceased’s death certificate.

9. At a directions hearing on 25 October 2019, Registrar Riznyczok ordered that the summons filed on 24 April 2019 be rejected for filing. He noted that the statement of claim was filed on 2 October 2019.

10. On 22 November 2019, RPAH filed a defence denying that the plaintiff was entitled to the relief claimed, and pleaded that the cause of action in the statement of claim was statute barred pursuant to the Limitation Act.

The plaintiff’s chronology of events

11. For the purposes of this application, I have taken the plaintiff’s evidence at its highest.

12. The plaintiff has prepared an extensive chronology (Annexure “D”, Aff 3/12/2019). RPAH submitted that the chronology ought to persuade the Court that the plaintiff has not discharged her onus, by reference to the matters the Court is to have regard to pursuant to s 60E(1) of the Limitation Act. I will refer to the plaintiff’s oral evidence given at the hearing in relation to s 60E(1) of the Limitation Act later in this judgment. It is common ground that the plaintiff’s husband died on 4 August 1997.

13. The following is taken from the plaintiff’s chronology.

14. In September 1998, through her general practitioner, the plaintiff requested the deceased’s medical records. The plaintiff received the records about a month later. The plaintiff agitated her concerns about the deceased’s death with a number of government departments, Ministers, politicians and public figures between April 1998 and August 2004 and again in December 2013, February 2014, December 2017 and June 2020. At the hearing, the plaintiff also informed the Court that she had also written to Her Majesty Queen Elizabeth II. The plaintiff identified that from at least April 1999, she considered the deceased’s death to be caused by acts or omissions by RPAH that amounted to a breach of duty of care.

15. In August 1998, the plaintiff first agitated her concerns about the deceased’s death with the Health Care Complaints Commission (“HCCC”) and made written complaints to it on or about 12 April 1999, 6 November 2002, 7 March 2003, 13 February 2004 and 2 July 2004.

16. On 18 July 2003, the HCCC’s Independent Complaints Review Committee determined that it did not consider the plaintiff’s complaints to have met the required investigative criteria. The Committee decided that the conduct of RPAH alleged by the plaintiff would not constitute improper professional conduct, receive severe peer criticism, or lead to disciplinary action against the practitioners involved in the treatment of the deceased. It is noted that the plaintiff has not served any expert report to establish breach of duty by RPAH in its treatment of the deceased. The plaintiff has not provided any details of liability experts from whom she sought assistance, other than Dr R Piper on or about 20 September 2004, nor has she set out the nature of Dr Piper’s opinion.

17. Following the deceased’s death, the plaintiff sought legal advice. It is as follows.

1. In late 1997 and in early 1998, Sarah Neilson, identified as a Legal Advisor at the University of Sydney, explained to the plaintiff the process of medical negligence and advised her to read the Law Handbook.

2. In 2002, the plaintiff consulted Maurice Blackburn Cashman, Turner Freeman, Castagnet Lawyers, Craddock Murray Neumann Solicitors, Millicevic Solicitors and Graham Jones Lawyers. In 2003, she consulted Khoury Dieb Solicitors, Stacks Goudkamp, Firths Lawyers, Armstrong Legal, Mr C J Whitelaw of counsel, Dr R J Desiatnik QC and a solicitor from the University of Sydney. In 2005, she consulted K R Lawyers and Consultants and Robertson Saxton Primrose Dunn. The plaintiff has not disclosed the nature of the advice given to her by each of these legal practitioners or what occurred with the progression of her claim following her consultations with each of them.

3. On 17 October 2002, R & L Whyburn & Associates Solicitors provided advice to the plaintiff not to take any legal action in relation to the deceased’s death. On 18 October 2002, R L Whyburn & Associates wrote to the plaintiff confirming that advice and stating, “We also note that you have previously sought legal advice on the time limitation to commence a claim and you are well aware of the statute of limitations and its effects.”

4. In March 2003, the plaintiff consulted Legal Aid and Norma Markovski Lawyers. The plaintiff has not disclosed the nature of the advice, if any, given to her by Legal Aid and Ms Markovski.

5. On 11 January 2005, Slater and Gordon Lawyers wrote to the plaintiff regarding her “Medical Negligence Claim (Nervous Shock)”, confirming her instructions given on that date that she did not wish to proceed with the matter at that stage.

6. On about 4 August 2005, Stormers Lawyers provided the plaintiff with written legal advice to the effect that her claim was time barred, and that unless she could demonstrate extraordinary circumstances to entitle her to bring a claim against RPAH, and absent an explanation for her delay, the firm could not assist her.

18. The plaintiff has been under the care of her general practitioner, Dr M Hassim (“Dr Hassim”), from about November 1997. She has also been under the care of psychologist Mr Sklavos (“Mr Sklavos”) from at least 1999. On 16 September 2002, Mr Sklavos diagnosed her with a Major Depression and an anxiety disorder, and certified her fit for work on 30 October 2003.

19. From about 2002 until about 2004, the plaintiff was under the care of psychiatrist Dr Oldtree-Clarke. On 4 February 2003, Dr Oldtree-Clarke provided a report to Graham Jones Lawyers. In April 2003, Dr Oldtree-Clarke diagnosed the plaintiff with chronic PTSD and Dysthymia with a date of onset in 1997, due to the death of her husband.

20. According to a letter dated 27 March 2003 by Dr Oldfield-Clarke to Ms Savage of the Legal Aid Commission, when the plaintiff commenced a “Compensation to Relatives Claim” in 1997, she recognised that the claim was out of time, and she wished to apply for an extension of time, for which she sought a grant of legal aid. By way of letter dated 2 April 2003, the plaintiff informed Dorothy Allan of the Law Society of NSW that her solicitor was in the process of lodging an application for an extension of time in the Court. The plaintiff also informed the HCCC by way of letter dated 2 April 2003 that her solicitor was lodging a claim with the Court.

The law – the Limitation Act

21. Section 19(1)(b) of the Limitation Act reads:

“19 Compensation to relatives

(1)    An action on a cause of action arising under the Compensation to Relatives Act 1897, by virtue of a death, is not maintainable if brought after the expiration of a limitation period of:

(a)    6 years running from the date of the death, where the cause of action accrued before 1 September 1990, or

(b)    3 years running from the date of the death, where the cause of action accrues on or after 1 September 1990.

(2)    This section does not apply in respect of a cause of action to which Division 6 applies.”

22. The plaintiff’s cause of action, if any, accrued on the death of the deceased on 4 August 1997. That means that the limitation period under s 19(1)(b) of the Limitation Act expired some 20 years ago on 4 August 2000.

23. The sections of the Limitation Act which are relevant to an extension of time are ss 60D, 60E, 60F, 60H and 60I. These sections are contained within Division 3 of the Limitation Act, which is headed “Personal injury cases arising before 2002 amendments”. Division 3 comprises of 4 divisions. Section 60 is contained in subdivision 1, which is entitled “Discovery”, and comprises of ss 57 to 60. Sections 60D and 60E are contained in subdivision 2, which is entitled “Secondary limitation period”. It comprises of ss 60A to 60E. Subdivision 3 is headed “Discretionary extension of time for latent injury etc”. Sections 60F, 60G 60H and 60I are contained in subdivision 3, which comprises of ss 60F to 62. As the plaintiff’s cause of action accrued after 1 September 1990, the following sections of the Limitation Act apply.

Section 60D

24. Section 60D reads:

“60D Compensation to relatives

(1)    This section applies to:

(a)   a cause of action for damages arising under the Compensation to Relatives Act 1897 by virtue of the death of a person caused by a wrongful act, neglect or default, and

(b)   such a cause of action that would arise under the Compensation to Relatives Act 1897 but for the expiration as against the deceased of a limitation period.

(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:

(a)   that a limitation period for the cause of action of the deceased for the wrongful act, neglect or default in relation to the cause of action that the applicant claims to have be extended for such period, not exceeding 5 years, as it determines, or

(b)   that a limitation period for the cause of action that the applicant claims to have be extended for such period, not exceeding 5 years, as it determines,

or both.

…”

25. The five year secondary limitation period envisaged by s 60D concluded on 4 August 2005. The plaintiff’s application falls short of that date, as her proceedings were commenced on 24 April 2019. As such, she is out of time to rely upon s 60D of the Limitation Act.

Section 60E

26. Section 60E reads:

“60E Matters to be considered by court

(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.

(2) In the application of this section to an application for an order under section 60C in respect of a cause of action that has survived on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.

(3) In the application of this section to an application for an order under section 60D(2)(a):

(a)   references in subsection (1) to the plaintiff include references to the deceased, the personal representative of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances, and

(b)   regard may also be had to delay occurring after the death of the deceased,

whether or not a limitation period has expired in relation to the cause of action that the applicant claims to have, and whether or not the applicant is also making an application under section 60D(2)(b).

(4) In the application of this section to an application for an order under section 60D (2) (b), references in subsection (1) to the plaintiff include references to the personal representative of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.”

27. The purpose of subdivision 3 is set out in s 60F. It reads:

“60F Purpose of this Subdivision

The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.”

28. Section 60E(2), (3) and (4) applies, with any necessary adaptations, in relation to applications for orders under Part 3, Division 3, Subdivision 3. However, they are not relevant to the plaintiff’s application. Section 60E(2), (3) and (4) do not apply to the plaintiff’s circumstances.

29. Counsel for RPAH submitted that the Court is to have regard to the matters set out in s 60E(1) (to the extent that they are relevant) before deciding whether it is just and reasonable to extend the limitation period pursuant to s 60H(2)(a) of the Limitation Act, which is extracted below.

30. I cannot find where the LimitationAct stipulates that s 60E(1) should be referred to in relation to an application under s 60H. Rather, s 60E(1) states that the factors in s 60E(1)(a)-(h) are to be referred to in relation to an application under s 60D, which is unavailable to the plaintiff as the five year secondary limitation period expired on 4 August 2005. However, as both the plaintiff and RPAH referred to s 60E(1), I will consider the plaintiff’s evidence as it relates to s 60E(1)(a)-(h) and make findings in the event I am wrong.

Section 60H

31. The plaintiff seeks to rely on s 60H of the Limitation Act, which reads:

“60H Compensation to relatives

(1)   This section applies to:

(a)   a cause of action for damages arising under the Compensation to Relatives Act 1897 by virtue of the death of a person caused by a wrongful act, neglect or default, and

(b)   such a cause of action that would arise under the Compensation to Relatives Act 1897 but for the expiration as against the deceased of a limitation period,

being a cause of action that accrues on or after 1 September 1990.

(2)   If an application for an order under this section 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:

(a)   that a limitation period for the cause of action of the deceased for the wrongful act, neglect or default in relation to the cause of action that the applicant claims to have be extended for such period as it determines, or

(b)   that a limitation period for the cause of action that the applicant claims to have be extended for such period as it determines,

or both.

…”

Section 60I

32. Section 60I reads:

“60I Matters to be considered by court

(1) A court may not make an order under section 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 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.”

33. For the Court to make an order under s 60I(1)(a), it must be satisfied that the plaintiff was unaware of all the three matters set out in s 60I(1)(a)(i)-(iii) at the expiration of the relevant limitation period, or at a time before that expiration, when proceedings might reasonably have been instituted.

34. Section 60I(1)(b) of the Limitation Act stipulates that the application must be made within three years of the date that the plaintiff became aware, or ought to have become aware, of the three matters set out in s 60I(1)(a).

35. The plaintiff carries the onus of establishing the matters set out in ss 60H, 60I(1)(a) and 60E.

RPAH’s submissions

36. RPAH submitted that the plaintiff has not discharged her onus of establishing, and that the Court cannot be satisfied, that:

1. the plaintiff was unaware of the matters set out in s 60I(1)(a) as at the date the limitation period expired on 4 August 2000;

2. the plaintiff was unaware of the matters set out in s 60I(1)(a) as at the date the secondary limitation period expired; and

3. the plaintiff’s application pursuant to s 60H was brought within three years after she became, or ought to have become, aware of the matters set out in s 60I(1)(a).

37. RPAH noted that the plaintiff has not served any reports from a treating doctor, psychiatrist, psychologist or medico-legal expert that sets out a full history, nor provided diagnoses and a prognosis that establishes medical causation. Further, her allegations of negligence are unsupported by any expert evidence.

38. The plaintiff has not addressed or adequately explained in her written submissions, and her chronology does not adequately explain, the reasons for her delay in bringing proceedings by 4 August 2000 or by the date of the expiration of the secondary limitation period. The plaintiff received a significant amount of legal advice, including in regards to the relevant limitation periods. Crucially, she has not explained the reasons why she instructed Slater and Gordon that she did not wish to proceed with her claim in January 2005.

39. RPAH submitted that the plaintiff’s chronology demonstrates a significant gap in any progression of her claim between 2005 and the date she states that she “unexpectedly" found a letter dated 19 August 1997 from the deceased’s solicitors, at which point she “started to re-opened Peter’s case. RPAH argued that the gap is particularly difficult to explain considering that the plaintiff was able to engage in litigation against the Australian Catholic University between 2008 and 2010: see Greenfield v Australian Catholic University [2010] NSWADT 104.

40. In summary, RPAH submitted that there is not a serious issue to be tried, that the plaintiff has no entitlement to the type of damages she seeks under the Compensation to Relatives Act, and that she has not established sufficient (or any) grounds upon which she should be granted leave to bring proceedings some 23 years after the deceased’s death.

The plaintiff’s evidence and submissions

41. I have taken the plaintiff’s chronology into account for the purposes of this application only, although I acknowledge it is not evidence. I have also given the plaintiff the opportunity to specifically address the requirements of s 60E(1) of the Limitation Act. The plaintiff gave oral explanations at the hearing, some of which did not align with the questions she was asked. Aside from her chronology and oral evidence, I have also read and taken into account her affidavits and written material. Her explanation in relation to s 60E(1) is as follows (T 16 - T 23).

Section 6E(1)

(a)   Explanation for delay

42. The plaintiff has given varied explanations for the delay in bringing proceedings. Generally, her explanation is that since the date of the deceased’s death on 4 August 1997, she has “had a really long path” to follow in bringing him justice.

43. On 12 November 1997, she went to her general practitioner. She says he did not know that her husband had died, so he wrote a letter to the superintendent of RPAH.

44. From that point on, she started seeking legal advice. She was referred to a consultant psychiatrist. She wrote to the HCCC and was interviewed by the attending medical officer. She requested that they perform an autopsy on her husband, but they delayed their response for months. Finally, the medical officer said that he could not perform an autopsy as the deceased had been cremated. She told the medical officer that he had not been cremated and that she had buried him in the cemetery.

45. The plaintiff requested the medical records of the deceased. Some of them had been deleted and some of them were not in the proper order. She was advised to write to the New South Wales Coroner, which she did.

46. In about 2000 or 2001, she approached a solicitor, who said that the limitation period had expired. She tried to approach private solicitors, as outlined earlier in this judgment, who told her that her claim may be barred because of the limitation period. She was advised that she had to wait to hear back from the HCCC and the coroner. At that time, she was studying and working night shifts at St Vincent’s Hospital, so she says she could not really think properly for years and merely focused on supporting herself. She says she could not get any legal help because the solicitors told her she could not overcome the financial hurdles of engaging them.

47. The plaintiff provided a letter from a psychologist, referred to earlier in this judgment, who said that she had PTSD and depression, which she tried to overcome. She says she waited for her health to improve. In her recent affidavit, she also stated that she delayed bringing proceedings for 7 or 8 years during this period because she could not get advice from solicitors, who did not want to go against RPAH because it was a “heavy matter”. It appears that the plaintiff did not take any further steps to pursue her legal proceedings from 2006 until 4 August 2018.

48. On 4 August 2018, on the 21^st anniversary of the deceased’s death, the plaintiff says she was looking over her application to study for a Bachelor of Medicine when she discovered a seven-page document about “a court matter” in relation to the deceased’s death. She says she investigated the matter on Google in the hope of pursuing it in the Supreme Court, but was unable to because she was unable to obtain the relevant letters of administration until 8 February 2019. When she finally received the the medical records of the deceased’s death, she saw that they recorded a drug called “pancuronium”. She researched the drug and found that it was a muscle relaxant.

49. The difficulty with this explanation is that the plaintiff has not provided any evidence to substantiate what was contained in the seven-page document about the “court matter”, other than that it ultimately led her to discover medical records that referred to a muscle relaxant. She has provided no expert medical evidence to explain the significance of this drug to her husband’s death.

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

50. The plaintiff says that in the time since his death, a relevant x-ray of the deceased has been destroyed.

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

51. On 4 August 1997, the plaintiff says she experienced shock when she saw RPAH medical staff “tie up” her husband with a metal restraint and “put something in his mouth”. This was the time at which she says the injury became known to her. She noticed that there were six vials present in the hospital room. Three contained “medication solution” and the other three contained yellowish solutions. These vials were not recorded in the medical records. After seeing her husband’s “actual horrible kind of death”, she suffered trauma “for years and years”. She tried to avoid people. She took antidepressants prescribed by her psychiatrist from 1997 until perhaps 2003.

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

52. The injury became known to the plaintiff the day the deceased died, namely 4 August 1997. The depression she faced and the shock she suffered from her husband’s death continues to this day.

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

53. The plaintiff says that she became aware of the connection between the injury and the doctors’ acts or omissions on 2 September 1998, when she attended Professor Iven Young, a medical officer who treated of her husband. She gave a history of that meeting as follows.

54. On 12 November 1997, she had gone to see her general practitioner because she had the flu. She says her general practitioner was shocked when she told him that her husband had died. She became alarmed because “even her general practitioner knew something was not right”. That is when she contacted the HCCC. She was studying at University of Sydney at that time, and was aware that she could contact a social worker at the HCCC because she’d read about it in a nursing journal. The social worker arranged a personal interview between her and Professor Young, which took place on 2 September 1998. In her chronology, the plaintiff says that from at least April 1999 she considered her husband’s death to be caused by the acts or omissions of RPAH, which amounted to a breach of duty of care. It was in April 1999, at the latest, that the plaintiff says she became aware of the connection between her husband’s death and the actions of the doctors and medical staff at RPAH.

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

55. In the period during which the deceased died, the plaintiff was studying at the University of Sydney University, where Professor Young worked. After her husband passed away, she was given “a hard time” by a teacher in her program. She says that towards the end of her degree, the teacher approached her and said, “You have to stop studying with no reason, there’s no letter or anything.”

56. She then attended the Australian Catholic University to continue her nursing studies. She says that when she had only one more week remaining before finishing the degree, while doing clinical practice at the Royal Women’s Hospital, the clinical facilitator approached her and said, “I have received a phone call for you to stop your studies.”

57. She says this clinical facilitator approached her and said, “I received a phone call for you to stop - to stop studies and clinical practice and everything. Pick up your bag and go home.” She did not receive any explanation or any letter. She tried to applying to other universities, like University of Western Sydney. She says they told her, “You have to ask permission from the Australian Catholic University.” She says that this experience, together with the difficulties surrounding the deceased’s autopsy, caused her delay in bringing proceedings.

58. I note that it is unclear how the alleged conduct of the universities in discontinuing her studies is attributable to the defendant.

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

59. The plaintiff has received a great deal of legal advice, as set out earlier in this judgment. In 1993, she saw her Dr Hassim, who referred her to Dr Oldtree-Clarke. She has been seeing Dr Oldtree-Clarke for years, and she says he has been helping her to obtain legal aid without success. She sought legal advice in 1997, 1998, 2002, 2003 and 2005. Some of the legal advice she received was in relation to the Limitation Act, where she was advised that the limitation period had expired. While she has received some written legal advice, the plaintiff has not put any of it into evidence.

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

60. The plaintiff says that the period time after the deceased’s death was a special time of struggle due to her depression and PTSD. During her practical examination at university, she was asked to put resuscitation equipment on a dummy patient. She says she suddenly thought of her beloved husband instead of the dummy. As the lecturer said, “Go on, go on,” the plaintiff’s hands became cold. The lecturer took notice of it. She explained to him that she had already passed another assessment and that she had a history of PTSD. Later, the plaintiff told this story to a clinician, Sandra Campbell.

61. After the periods of depression, the plaintiff saw her psychiatrist and made a worker’s compensation application in relation to her work at St Vincent’s Hospital.

62. As stated, s 60E(1) states that the factors in s 60E(1)(a)-(h) are to be referred to in relation to an application under s 60D. The five year secondary limitation period under s 60D expired on 4 August 2005. Even in the event that I am wrong and s 60D applies, it is my view that having regard to all the circumstances of the case, the factors considered above, the plaintiff has not provided a satisfactory explanation for delay, and it is not just and reasonable to order that the limitation period be extended under s 60D.

63. I now turn to consider the plaintiff’s application under s 60H of the Limitation Act.

Section 60H

64. As stated, s 60H of the Limitation Act allows this Court to extend the limitation period in relation to the plaintiff’s application if, after hearing of the persons likely to be affected by the application, the Court decides that it is “just and reasonable” to do so. This Court is not to make such an order unless it is satisfied that the threshold provisions in s 60I(1)(a) of the Limitation Act have been satisfied.

65. I will now turn to consider the plaintiff’s evidence in relation to s 60I(1)(a). While I have found some of the plaintiff’s explanations difficult to understand and reconcile, I have taken her case at its highest.

Section 60I

66. Section 60I involves an examination of the plaintiff’s knowledge of the three threshold factors set out in s 60I(1)(a), and in particular, the one which the plaintiff last became aware. On 24 April 2019, she filed the summons. On 3 February 2020, she filed the notice of motion seeking an extension of time to commence proceedings in relation to the Compensation to Relatives Act. I will take the summons date of 24 April 2019 as being the date of commencement of these proceedings. In this case, the examination under s 60I will therefore focus on the plaintiff’s state of knowledge as at 24 April 2016 (3 years prior to filing the summons pursuant to s 60I(1)(b)). This is the date when the plaintiff became, or ought to have become, aware that her husband had died; the nature and extent of her personal injury; and its connection to RPAH’s acts or omissions, whichever is the latter: see s 60I(1)(a)(i), (ii) and (iii). The onus of proof rests upon the plaintiff: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1 (“Taylor”).

60I(1)(a)(i)   The plaintiff did not know that personal injury had been suffered

67. On 4 August 1997, the plaintiff was aware that the deceased had died.

68. As stated, from November 1997, the plaintiff was under the care of Dr Hassim. On 16 September 2002, Dr Hassim apparently diagnosed her with a Major Depression and an anxiety disorder. He certified her unfit for work on 30 October 2003. The plaintiff, on her own evidence, was from at least 1999 under the care of psychologist, Mr Sklavos. From about 2002 until about 2004, the plaintiff was also under the care of Dr Oldtree-Clarke. Dr Oldtree-Clarke provided a report to Graham Jones Lawyers in April 2003, where he stated that he had diagnosed her with PTSD and dysthymia with a date of onset in 1997, due to the deceased’s death. It is my view that by April 2003, if not earlier, the plaintiff was aware or ought to have been aware that she had suffered a personal injury.

60I(1)(a)(ii)   The plaintiff was unaware of the nature or extent of personal injury suffered

69. Referring to my reasons in relation to s 60I(1)(a)(i), the plaintiff was diagnosed in April 2003 at the latest with PTSD and dysthymia due to the death of her husband. As she also knew that she could no longer work and was struggling, it is my view that by that time the plaintiff was aware of the nature or extent of her personal injury.

60I(1)(a)(iii)   The plaintiff was unaware of the connection between the personal injury and RPAH’s acts or omissions

70. On the plaintiff’s own evidence, it was in September 1998 that Dr Hassim requested the deceased’s medical records, which she received about a month later. The plaintiff agitated her concerns about the deceased’s death with a number of government departments and other public figures between April 1998 and August 2004, and then again in December 2013, February 2014, December 2017 and June 2020. On the basis of these communications, it appears that from at least April 1999 the plaintiff identified that she considered the deceased’s death to be caused by acts or omissions by RPAH which amounted to a breach of duty of care. The breach consisted of allegedly euthanising the deceased by giving him the wrong medication.

71. RPAH has submitted a later date, namely 2 June 2003, as being the date from which the plaintiff recognised that there was a connection between her diagnosed medical condition of PTSD and RPAH’s alleged acts and omissions. On this basis, and in an effort to take the plaintiff’s case at its highest, I shall adopt the date of 2 June 2003 from the defendant’s submissions, as it is favourable to the plaintiff.

60I(1)(b)

72. Section 60I(1)(b) requires the application under s 60I be made within three years after the plaintiff became, or ought to have become, aware of all three matters listed in s 60(a)(i), (ii) and (iii). It is my view that the plaintiff became, or ought to have become, aware of all three threshold issues on or before April 2003 at the latest. As the summons was filed on 24 September 2019, the plaintiff’s application to extend the limitation period under s 60I(1)(a) had to show that she had not become aware of the threshold matters by 24 September 2016. As such, the plaintiff’s application is 13 years out of time, and falls outside of the time prescribed by s 60I(1)(b). The plaintiff’s application for an extension of the limitation period under s 60I fails.

73. I note that s 60I(2) provides that subsections (2), (3) and (4) of s 60E apply, with any necessary adaptions, in relation to applications for orders under s 60I. As previously stated, s 60E(2), (3) and (4) reproduced earlier in this judgment have no relevance to the plaintiff’s application.

Just and reasonable

74. Section 60H of the Limitation Act requires the Court to consider whether it is “just and reasonable” to extend the limitation period in relation to the plaintiff’s case. Although I have already determined that the plaintiff has not met the threshold provisions of s 60I(1)(a), for completeness I will consider whether it is just and reasonable to extend the limitation period.

The defendant’s submissions

75. RPAH submitted that the plaintiff’s written submissions filed on 21 August 2020 fail to address the legislative requirements of those sections, or the presumptive prejudice to RPAH occasioned by the delay were she to be granted leave: see Taylor.

Resolution

76. While there is certainly presumptive prejudice of the type expressed by McHugh J in Taylor arising out of the passing of 20 years since the limitation period expired, the onus lies with RPAH to establish evidence of actual prejudice. It has not done so.

77. In Taylor, the High Court considered the nature of the discretion conferred by s 31(2) of the Limitation of Actions Act 1974 (Qld). Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. In Taylor, Toohey and Gaudron JJ stated at 548:

“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.”

78. The ultimate test in any such application is whether a fair trial can be conducted notwithstanding any delay. In weighing prejudice, its impact upon a fair trial is the primary focus: see Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199.

79. In Prince Alfred College Inc v ADC (2016) 258 CLR 134; (2016) 335 ALR 1, French CJ, Kiefel, Bell, Keane and Nettle JJ held at [105]- [106]:

“[105] …Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time. The onus is upon the party claiming an extension of time to show that a fair trial may be had now, notwithstanding that passage of time. That onus is not discharged by saying that the putative defendant should have been more astute to conserve its own interests by anticipating litigation that did not eventuate until many years after the expiration of the limitation period...

[106] …Where an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest. It has been recognised that there is an element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed...”

80. To properly consider an application for an extension of time in which to commence proceedings, the Court requires a full and frank explanation by the plaintiff of the circumstances in which the limitation period was permitted to expire. Such an explanation is essential to the exercise of the discretion.

81. The plaintiff’s explanation for delay has been set out earlier in relation to s 60E(1)(a) of the Limitation Act. The plaintiff has given various explanations for her delay in instituting proceedings, including that she suffered from ongoing issues with her mental health and struggled enough merely trying to support herself, although I note that she was able to commence proceedings against the Australian Catholic University between 2009 and 2010. She also says she was told by various solicitors over the years that they were unwilling to assist her, although it appears that at least in relation to some of the advice she received, she was told that her claim was statute barred. Her primary explanation for why she only instituted these proceedings in 2019 is that it was not until 4 August 2018 that she discovered “court documents” in relation to the deceased which inspired her to pursue her claim. She has not explained what these documents were other than that they caused her to make an application for letters of administration in relation to her deceased’s husband’s estate. That application was granted.

82. The plaintiff has not furnished to this Court any medico-legal opinion as to the cause of her husband’s death, her own medical condition or the legal advice she has received, including being advised that the limitation period had expired.

83. I accept that there will be presumptive prejudice of the type referred by McHugh J in Taylor at 548 as follows:

“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”

84. While I accept that the plaintiff has suffered PTSD and dysthymia due to her husband’s death, I find her explanation for the delay in bringing proceedings against the defendant unsatisfactory. Due to the long delay in making the application to extend the limitation period, the lack of evidence produced to the Court, and the presumptive prejudice in the delay in instituting proceedings until over 20 years since the deceased’s death, I am not satisfied that both parties will obtain a fair trial. In these circumstances, it is my view that it is not just and reasonable to extend the limitation period under s 60H of the Limitation Act.

Costs

85. Costs are discretionary. Costs are reserved.

The Court orders that:

1. The plaintiff’s summons filed 24 April 2019 is dismissed.

2. The statement of claim filed 2 October 2019 is dismissed.

3. Costs are reserved.

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Decision last updated: 27 October 2020