Henderson v Hughes
[1998] VSC 159
•26 November 1998
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No. 1315 of 1994
CHRISTOPHER STEVEN HENDERSON Plaintiff v DAVID JAMES HUGHES Defendants (AS EXECUTOR OF THE ESTATE OF
SHIRLEY ISOBEL SYMONDS, DECEASED)
AND HUME HEALTH SERVICES
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JUDGE: Mandie J WHERE HELD: Melbourne DATE OF HEARING: 25 November 1998 DATE OF JUDGMENT: 26 November 1998 MEDIA NEUTRAL CITATION: [1998] VSC 159
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LIMITATION OF ACTIONS - Application for extension of limitation period -
s.5 Choice of Law (Limitation Periods) Act 1993 (Vic) - s.60G Limitation Act 1969(NSW)
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr R. Meldrum QC Nevin Lenne & Gross with Mr T. Monti For the 1st Defendant Mr C. Blanden Ebsworth & Ebsworth For the 2nd Defendant Mr D. Beach Cornwall Stodart
HIS HONOUR:
This is an application by summons dated 26 May 1998 seeking an order that the plaintiff be granted an extension of the limitation period. The application is made pursuant to and now confined to section 60G of the Limitation Act 1969 of New South Wales.
It is common ground that, under section 5 of the Choice of Law (Limitation Periods) Act 1993 (Victoria), this court is required to apply that New South Wales legislation because it forms part of the substantive law of New South Wales which governs the claim in the principal proceeding, number 1315 of 1994.
The application arises in the following circumstances. The plaintiff was born on 24 July 1967. In February 1972, aged about 4 and a half years, he fell from a tree and suffered a compound fracture of the right arm involving the humerus and both bones in the lower end of the forearm. He was admitted to the Albury Base Hospital (the second defendant), under the care of an orthopaedic surgeon, the late Dr Symonds, whose legal personal representative is the first defendant.
Surgery was performed by Dr Symonds on the plaintiff's fracture at the hospital on 6 February 1972 and again on 8 February 1972. There was a division of the radial nerve above the elbow, but whether this was caused by the fracture or the operative procedures is unknown. The plaintiff had continuing problems and by February 1974 Dr Symonds (having noted a nerve lesion) had referred the plaintiff to Dr Wakefield at the Royal Children's Hospital in Melbourne. Dr Wakefield found, when operating on 5 March 1974, that there was a gap of two inches where the nerve had divided. A nerve graft was attempted on that date but was unsuccessful. On 18 February 1975 Dr Wakefield performed a tendon transplant.
The plaintiff continued to suffer serious problems including wasting of the right arm and loss of strength, ability and dexterity associated with the damage to the radial nerve.
Dr Symonds died in August 1980.
Dr Wakefield died in 1985.
It was common ground that the limitation period under the New South Wales Act for proceedings by the plaintiff against Dr Symonds and the hospital in relation to his treatment and care in 1972 and thereafter, expired on 24 July 1991.
In mid-September 1993, the plaintiff first became aware that he might have a claim for damages against Dr Symonds and the hospital arising out of his treatment. This came about when his mother told him at that time that Dr Wakefield had said to her in 1974 that the plaintiff should have been transferred to the Children's Hospital immediately and that if he had been so referred within six months of the injury, it would have been possible to save the nerve function in his right arm.
The plaintiff contacted his present solicitors in the same month and saw Mr Lenne of that firm. Mr Lenne obtained all the hospital records and all the other relevant information. He obtained a medical report from Mr Pease, surgeon, dated 22 July 1994. Mr Pease noted that the right arm was smaller and weaker and that the plaintiff lacked full extension of his thumb and fingers on his right hand. The plaintiff also told Mr Pease of learning difficulties and the "terrible mental effect following the accident. Mr Pease expressed the opinion that the plaintiff's disability related to the fact that the radial nerve injury was not recognised at the time of the accident. The Albury Base Hospital notes contain no evidence of any assessment of neurological function in the arm. There was no evidence in the notes that Dr Symonds searched for nerve injuries. Severe radial nerve injury was present, but apparently not recognised. In these circumstances. Mr Pease expressed the opinion that there had been a serious failure of duty to care for the patient and the delay had left the plaintiff with a serious disability.
A writ was filed in this court on 18 August 1994 and duly served on the defendants, after some difficulties, in August 1995. The statement of claim alleges negligence by Dr Symonds and by the hospital in relation both to the plaintiff's treatment and care as an inpatient in February 1972 and thereafter as an outpatient. The particulars of negligence of the doctor and the hospital include alleged failures of investigation, examination and recognition in relation to the plaintiff's injury and failing to diagnose nerve injury or to refer the plaintiff for nerve repair. Additional particulars of negligence alleged against the hospital relate to non-provision of competent staff and negligent supervision and follow-up.
In March of this year, the plaintiff saw Dr Whitaker, a consultant psychiatrist who has expressed the opinion that the plaintiff is suffering from "dysthymia" - a chronic, unremitting depressive disorder with an apparent causal link to his disability.
It was not disputed that section 60G of the New South Wales Limitation Act was available in relation to a cause of action which accrued in 1972. (See clause 4 of Schedule 5 to the Act and section 60F).
Under section 60G, the court may order that the limitation period be extended, "if it decides that it is just and reasonable to do so". Section 60I provides that a court may not make an order under section 60G unless it is satisfied of certain matters. So far as the present application is concerned, section 60I(1)(a)(ii) and (b) are relevant. The court must be satisfied that the plaintiff was unaware at the expiration of the relevant limitation period of the nature or extent of the personal injury suffered, and that the application is made within three years after the plaintiff became so aware or ought to have been aware. I have not referred to the other elements in section 60I(1) because the plaintiff accepted that they were known in 1993 (to the extent that they were not known earlier).
Thus, the plaintiff's contention was that he was unaware of the extent of his personal injury until the receipt of Dr Whitaker's report this year, shortly before this application was made. It was submitted that the extent of the injury at the date of the application, included his depressive disorder and of this he was unaware at the expiration of the limitation period. In my opinion that submission is factually correct. It is also put on the correct legal basis under section 60I. It is fully supported in my view by the decision and reasoning in Harris v. Commercial Minerals Limited 186 CLR 1 especially at 11, 12,14 and 16. See too Commonwealth of Australia v. Dinnison 56 FCR 389, at 402-3.
I do not accept the defendants' contention that the references in the statement of claim to "nervousness, anxiety and psychological upset" or the reference to "a terrible mental effect" in Mr Pease's report as to the plaintiff's complaints, evinces an awareness of the extent of the injury, even broadly as encompassing a chronic depressive disorder with the features listed by Dr Whitaker. I consider that the requirements of section 60I are satisfied.
The plaintiff accepted that the onus lay upon him to satisfy the court that the defendants would not suffer significant prejudice if the limitation period were extended or that the justice of the case required that the discretion to extend the limitation period be exercised. The plaintiff accepted that the principles laid down in Brisbane South Regional Health Authority v. Taylor 186 CLR 541 as applicable to the discretion under the Queensland Act were equally applicable to the New South Wales Act and to section 60G thereof. I would respectfully add that I find the reasoning of McHugh J, with whom Dawson J agreed, to contain a powerful and illuminating analysis of the rationale for limitation periods and of the nature of the prejudice to a defendant with which courts must be concerned.
Of course, every application must be decided on its own facts and the discretion must be exercised in relation to those facts. This was recognised by Hedigan J in Hickey v. Women & Children's Health Care Network (Supreme Court of Victoria, 11 June 1998, unreported) who nevertheless said in that case:
"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."
In this case, the plaintiff submitted that the facts were known. There was a nerve lesion, however caused; it was not detected at once; it was not treated at once. The issues would be determined by expert evidence relating to a number of issues, principally: what was the appropriate standard of care in relation to those facts? What was the effect of delay in treatment? And what was the state of medical knowledge as to that at the time?
The defendants submitted that there would be significant prejudice to them if the limitation period were extended. Heavy reliance was placed upon the fact that Dr Symonds was dead, and to a lesser extent on the fact that Dr Wakefield was dead.
It was submitted that the fact that these doctors had died long before the limitation period had expired was irrelevant because it was not appropriate to take into account that there would have been such prejudice in any event had a proceeding been commenced within time. I think that the defendants are correct in this regard and it is supported by what was said in Brisbane South Regional Health Authority by Toohey and Gummow JJ at 548-9 and by McHugh J at 554-555.
In my view, the determination of the question of whether Dr Symonds was negligent on the basis primarily of expert evidence and the medical records and inferences therefrom, in circumstances where his death has precluded the defence from calling any evidence as to what occurred whilst the plaintiff was an inpatient, what occurred in his post-surgical treatment, what that doctor knew and observed or did not know or observe at the relevant times, and what clinical judgments that doctor made or did not make at relevant times presents a serious risk of real prejudice to each of the defendants and a serious risk that a fair trial may not be had. It is a hazardous and artificial exercise to determine negligence in the vacuum created by the absence of such evidence in this case.
The lapse of time and the death of Dr Symonds has created other problems. There is a real issue as to whether the plaintiff was a private patient and whether the hospital has any liability at all for the acts, or omissions of Dr Symonds. The hospital faces the risk of serious prejudice in attempting to deal with that issue after so long. A number of additional matters of substance are set out in an affidavit of John Hodge. In particular I refer to paragraph 3 (d), (f) and (h) of his affidavit. Finally, there is a general risk of prejudice after such a long time. 'What has been forgotten can rarely be shown" (see per McHugh J at page 551 in Brisbane South Regional Health Authority).
In my opinion, it is not just and reasonable in the circumstances to which I have referred that the application be granted. In my opinion, there is at the least a real risk that significant prejudice would be suffered by each of the defendants and that a fair trial would not be had if the application were granted. I am certainly not satisfied that either of the defendants would not suffer significant prejudice if the application were granted, and this action proceeded with.
For those reasons the application is dismissed.
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