Hunt v Holcombe
[2018] VSCA 248
•27 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0038
| ROLAND HUNT | First Applicant |
| and | |
| NUMURKAH DISTRICT HEALTH SERVICE | Second Applicant |
| v | |
| SHANE HOLCOMBE | Respondent |
---
| JUDGES: | BEACH, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 September 2018 |
| DATE OF JUDGMENT: | 27 September 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 248 |
| JUDGMENT APPEALED FROM: | [2017] VSC 666 (Ierodiaconou AsJ) [2018] VSC 55 (Dixon J) |
---
LIMITATION OF ACTIONS - Medical negligence - Application to appeal decision of Associate Justice - Application to appeal decision of judge - Whether it was unreasonable to not grant an extension of the limitation period due to delay in bringing proceedings – Factors to be considered in granting an extension of the limitation period – Whether Associate Justice correctly applied factors to be considered - Reasonable explanation for delay – Change in plaintiff’s circumstances and knowledge - Limitation of Actions Act 1958, ss 27K, 27L – Leave to appeal granted – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the First Applicant | Mr P H Solomon QC with Mr B Jellis | Ball & Partners |
| For the Second Applicant | Mr P H Solomon QC with Mr B Jellis | Minter Ellison |
| For the Respondent | Mr J Ruskin QC with Ms C Spitaleri | Arnold Thomas & Becker |
BEACH JA
KAYE JA
NIALL JA:
In December 2016, a generally endorsed writ was issued on behalf of the respondent seeking damages against the applicants, in respect of surgery performed by the first applicant on the respondent’s right leg, on 1 March 2001, at the Numurkah Hospital. An Associate Justice of the Court refused an application by the respondent, under s 27K of the Limitation of Actions Act 1958 (‘the Act’), to extend the period of limitation applicable to the cause of action relied on by the respondent in the proceeding.[1] The respondent successfully appealed from that decision to a trial judge of this Court.[2] The applicants now seek leave to appeal that decision.
[1]Holcombe v Hunt [2017] VSC 666 (‘Associate Justice’s Reasons’).
[2]Holcombe v Hunt [2018] VSC 55 (‘Judge’s Reasons’).
The factual circumstances
The original application, by the respondent to the Associate Justice, was based on affidavits sworn by the respondent and his solicitor. At the hearing of the application, the respondent was cross-examined by counsel for the applicants. The Associate Justice found that the respondent presented as a truthful and credible witness.[3]
[3]Associate Justice’s Reasons [3].
The respondent was born in December 1974. When he was six years of age, he was diagnosed with the congenital condition Klippel-Trénaunay-Weber Syndrome (‘KTW Syndrome’). While the exact cause of that condition is not known, it is generally considered to be the result of intra-uterine damage to the sympathetic ganglia, with the resultant development of cutaneous stains, varicose veins, arteriovenous malformation, and bony and soft tissue hypertrophy. As a result of that condition, the respondent’s right leg has grown longer than his left leg, and he has very large feet, one of which is considerably larger than the other. By the time the applicant was 22 years of age, his right leg had a large varicose vein above the right knee. By 2000, that vein was causing him considerable pain. As a consequence, his general practitioner referred him to the first applicant, who was a general surgeon conducting practice in Shepparton.
On 6 November 2000, the respondent consulted the first applicant. At that consultation, the first applicant advised the respondent that he could perform an operation by which he would strip the varicose veins, in both of the respondent’s legs. He told the respondent that the procedure would resolve his pain, that it would take three hours, and that the respondent would be walking within one week.
The first applicant arranged for the respondent to have an ultrasound investigation conducted on both of his legs. On 28 February 2001, the respondent attended a radiologist in Shepparton, where the ultrasound was undertaken. It demonstrated severe varicose veins in the right limb, with incompetent long and short saphenous vein systems, multiple thigh and calf incompetent perforators, and varicose veins on the left calf. The left long and short saphenous veins were reported as being competent.
The respondent was admitted to Numurkah Hospital on the following day, 1 March 2001, for bilateral varicose vein surgery by the first applicant. The procedure that was performed was ligation and stripping of the long saphenous vein, multiple avulsion of varicosities, and ligation of multiple incompetent perforator veins of the right thigh. Difficulties were encountered in the course of the operation on the right leg, so that surgery on the left leg was not undertaken. The surgery on the right leg took three hours, and there was considerable bleeding in the course of the surgery and also post-operatively.
After the surgery, the operation wound to the respondent’s right groin kept bleeding. The respondent was initially discharged from hospital on 4 March 2001. However, when he tried to walk, he was in severe pain. His right leg was swollen, and the operation wound was constantly bleeding. As a consequence, the respondent was readmitted to hospital on 7 March. The wound to the groin was re-opened and packed with gauze under general anaesthesia. The respondent remained in hospital until 15 March.
About one month after the surgery, the respondent was continuing to experience more pain than before the surgery, and he could barely walk. The first applicant told him that he could not guarantee that the pain would go away, and he said to the respondent, ‘I have never operated on someone with your condition’.
As a consequence of his ongoing problems, the respondent’s general practitioner referred him to Mr Anthony Penington, a plastic surgeon. The respondent saw Mr Penington on 29 May 2001. At that consultation, Mr Penington told the respondent that he thought that the pain would settle down, and that he should take one half of an aspirin each day. The respondent understood, from his discussions with Mr Penington, that the surgery performed by the first applicant had been inappropriate for him.
In December 2001, the respondent and his mother consulted the first applicant, who advised him that the wound was starting to heal. However, because the respondent was continuing to experience significant pain, he was referred to the Medical Director of the Royal Children’s Hospital for treatment.[4] In his affidavit, the respondent stated that, following that time, the pain in his right leg gradually reduced, and he learnt to live with it. However, the swelling of the right leg had been continuous since the surgery in 2001.
[4]Although the respondent was an adult, he had previously received treatment at the Royal Children’s Hospital.
At that time, the respondent was employed at the processing plant of Murray Goulburn. His work involved a lot of standing and walking on concrete floors, which exacerbated his pain. He bandaged his right leg to put pressure on it, and so alleviate some of the pain. However, by about 2006, he felt that he could not continue to work at Murray Goulburn, because of the pain levels that he was experiencing. As a result, his general practitioner referred him back to Mr Penington in June 2006.
At that consultation, Mr Penington told the respondent that the main varicose veins in his right leg should not have been stripped. He told the respondent that the swelling in his right leg was called ‘lymphodema’, which was caused by the surgery. Mr Penington advised the respondent to seek alternative employment that did not involve standing and walking on concrete all day. He also referred the respondent to the lymphoedema clinic, at the Mercy Hospital. When the respondent attended that clinic, he was given information about managing his lymphoedema.
At that time, the respondent’s relationship with his wife became very difficult, and, after they separated, there was substantial hostility between them. As a result, the respondent was not able to see his two daughters for six months. He consulted a firm of lawyers, for advice about access to his children, and subsequently about a divorce and property settlement. Those solicitors asked Mr Penington to confirm the information about the respondent’s condition of KTW Syndrome. However, the respondent did not seek legal advice from the solicitors about the surgery conducted by the first applicant. In his affidavit, he said he did not do so because he was then completely preoccupied with his family law issues. When he was cross-examined about that matter before the Associate Justice, he said that he did not ask the solicitors for advice about that matter, because it was a totally different matter to that in which he was then involved.
In his affidavit, the respondent said that, some years earlier, his parents had made a complaint about a doctor who had treated his brother, when his brother had an infected abscess on the brain. His parents’ complaint had been talked about in the town, and, as a result, the doctor arranged for a letter to be sent to the respondent’s parents, demanding a public apology, and threatening to sue them for defamation if they did not do so. As a consequence, the respondent’s parents apologised to the doctor. At that time, they were very distressed, as the respondent’s brother had nearly died, and they were apprehensive about the risk of a defamation action against them.
After the respondent saw Mr Penington in May 2001, his parents told him that they had been told that a person could never win in a claim against a doctor because of the ‘old boys’ network’, so that no doctor would give adverse evidence against another doctor. In his evidence, the respondent stated that that advice, given to him by his parents, was a further reason why he did not consult the firm of solicitors, in 2006, about the matters relating to the surgery that had been conducted on his right leg.
Subsequently, the respondent moved to Queensland with his new partner. He worked there driving trucks in a quarry. He put up with the pain in his right leg, and he did not require any treatment for it while he was in Queensland. In 2012, the respondent and his partner returned to Victoria, where he secured work, initially driving trucks interstate from Melbourne to Sydney. He then obtained his current employment, driving trucks for Suttons, in Numurkah.
In August 2015, the respondent experienced his first episode of cellulitis in his right leg. He consulted his general practitioner, who prescribed antibiotics. That medication managed the condition at that time. However, six months later, on 4 February 2016, the swelling and pain returned to his right leg, and he also experienced fever, nausea and vomiting. He attended the Wangaratta Hospital, where he was given intravenous antibiotics. Subsequently, he was discharged with a prescription for oral antibiotic medication.
On 2 May 2016, the respondent suffered a further episode of cellulitis in his right leg. He was admitted to the Numurkah District Health Service, with symptoms of nausea, rigors, a very swollen and red right leg, increased heart rate and high blood pressure. On 4 May 2016, he was transferred to the Goulburn Valley Hospital, and he was discharged from that hospital two days later.
In March 2017, the respondent again developed cellulitis. He attended the Accident and Emergency Department at Shepparton Hospital, where he received antibiotics, administered intravenously, over a three day period. The respondent was then discharged to Hospital in the Home, through the Cobram Hospital, for the continuing intravenous administration of antibiotics. In the next month, on 26 April 2017, the respondent was admitted to Cobram Hospital for a period of seven days, during which he underwent the intravenous administration of antibiotics, for a further episode of cellulitis.
In his affidavit, the respondent stated that, until he was admitted to the Wangaratta Hospital in February 2016, none of the medical practitioners, who had treated him, had explained to him that the lymphoedema in his right leg presented a longer term risk of cellulitis. He said:
Even though I had pain and swelling in the right leg after the original surgery to strip the veins, which I managed to live with between 2001 and August 2015, I never knew or understood that there could be a worse problem in the future when I got older.
The respondent’s evidence, to that effect, was not challenged in cross-examination, and, as already noted, the respondent was accepted as a truthful and credible witness by the Associate Justice.
The respondent further stated that the episodes of cellulitis, experienced by him, have been getting worse. Each time he has suffered such an episode, his leg swells to a greater degree, and it does not return to the size it was before that bout of cellulitis. The doctors have had to progressively increase the dose of antibiotics they have prescribed for him to treat cellulitis. The respondent has been told that, if he develops an immunity to the antibiotics, there is no other treatment available for his cellulitis.
The respondent’s right leg is now double the size that it was in August 2015. He attached, as an exhibit to his affidavit, current photographs of his right leg, and his left leg, which graphically demonstrated the difference in the size of the former. The respondent stated that the episodes of cellulitis, and his increasingly swollen leg, have had a significant impact on his life. He said that he could live and work with the swelling from the lymphoedema, but the onset of cellulitis has now threatened his capacity to continue to work. It has also significantly interfered with his ability to enjoy physical activities with his children, including playing sport with them. The respondent stated in his affidavit:
It was not until I had episodes of cellulitis in February 2016 that I understood the serious consequences of cellulitis on my life and my future – and my family’s future. At about the same time I heard a lawyers advertisement on the radio. It was then that I decided to contact a lawyer about my leg. I commenced a search on the internet, and obtained Arnold Thomas & Becker’s phone number.
I was never aware until 2016 when I contacted [the firm of solicitors acting for him] that there were any time limits on pursuing a claim against the Defendant.
In cross-examination, the respondent agreed that he was of the view, in 2006, that the procedure performed on him by the first applicant was wrong. He agreed that he did not seek legal advice until 2015. Counsel asked the respondent what had changed to cause him to do that, to which the respondent said:
I was starting to get a lot of problems with lymphodema, cellulitis, which caused a lot of hospital, I was quite ill at times, and I was having to take time off work.
The respondent, in cross-examination, agreed that he had turned his mind to the possibility of suing the first applicant between 2008 and 2015. When asked why he did not take any steps during that period, to issue proceedings against the first applicant, he responded:
I pretty much just thought, well, this is what I had been dealt, put up with the pain and live with it.
The respondent’s solicitor swore two affidavits, setting out the steps that were taken on behalf of the respondent, after he consulted them in February 2016. In her reasons for judgment, the Associate Justice noted that it was common ground, between the parties, that, once those solicitors were retained, the respondent had acted promptly to bring the proceeding.[5]
[5]Associate Justice’s Reasons [22].
In the statement of claim that has been filed and served in the proceeding, the respondent pleaded that, as a consequence of the operation performed by the first applicant, he has suffered chronic lymphoedema of the right leg, increasing size of the right leg, episodes of cellulitis, and depression and anxiety. He alleged that those injuries were caused by the negligence, or breach of agreement, of the first and second applicants. The particulars of negligence allege against each applicant a failure to give appropriate advice to the respondent, a failure to refer the respondent to a vascular surgeon, and performing surgery that was inappropriate in the circumstances. In addition, the particulars, in relation to the first applicant, include an allegation that he failed to arrange adequate radiological investigations of the respondent’s vascular system.
Those particulars are based on a report of Dr Peter Tomlinson, a vascular and general surgeon, obtained by the respondent’s solicitors in December 2016. Dr Tomlinson’s views can be summarised as follows. First, it was insufficient for the first applicant only to undertake an ultrasound investigation of the respondent’s legs. A patient with a diagnosis of KTW Syndrome should undergo ultrasound and MRI scanning, to look at the deep veins and soft tissue, and to evaluate the presence of malformations and arteriovenous connections. In addition, an angiogram would be advised. At times, CT scans or MRI scans may be necessary to evaluate also the abdomen and pelvis to check for malformations. Other advisable investigations would include an evaluation of the lymphatic drainage of the leg, such as by lymphoscintogram.
Secondly, Dr Tomlinson considered that the vascular deformities suffered by the respondent should be treated, primarily, by way of conservative measures, with compression therapy and the application of bandages and garments to the affected leg, to reduce swelling, cellulitis and recurrent bleeding. Surgery is complex and difficult, and more often than not is associated with extremely fragile varicosities, which bleed with very little effort. Bleeding is often exacerbated by the presence of micro-arteriovenous malformations. Therefore, surgery should only be used as a last resort. Surgery may have the effect of increasing the swelling, and it may also aggravate associated lymphatics hypoplasia. A person with KTW Syndrome will face an increased risk of complications from surgery, one of which is cellulitis.
Thirdly, Dr Tomlinson considered that it was inappropriate for the first applicant, as a general surgeon, to undertake the procedure. Rather, the respondent should have been referred to a specialist vascular surgeon, or, more preferably, to a multi-discipline unit dealing with vascular abnormalities.
Fourthly, Dr Tomlinson expressed the view that the development of lymphoedema by the respondent is probably related to the condition of KTW Syndrome. In addition, the surgery interfered with remaining lymphatic channels, and caused destruction of them. That damage, in turn, has resulted in poor lymphatic drainage, and the accumulation of lymphatic fluid in the tissues of the leg, thus providing an environment in the subcutaneous tissues that is more prone to infection.
The reasons of the Associate Justice
As mentioned, the Associate Justice commenced her reasons by finding that the respondent had presented as a truthful and credible witness. Having reviewed the evidence, and the submissions made by each side, the Associate Justice noted that the respondent’s ‘deliberate decision’ not to commence proceedings was relevant in the consideration of the synthesis of factors prescribed by s 27L of the Act. Her Honour noted that neither applicant had submitted that they will suffer any specific prejudice if the proceeding were to go to court. However, they each relied on a presumption that there would be prejudice to them because of the long delay, as discussed by McHugh J in Brisbane South Regional Health Authority v Taylor.[6] Nevertheless, her Honour stated that she did not consider that either applicant ‘will be so prejudiced by the effluxion of time that a fair trial cannot be held.’[7]
[6](1996) 186 CLR 541, 551 (‘Taylor’).
[7]Associate Justice’s Reasons [45].
The Associate Justice considered the extent to which the respondent had acted promptly and reasonably once he knew that the acts or omissions of the applicants might be capable of giving rise to cause of action for damages. Her Honour stated:
Mr Holcombe did not act promptly to obtain legal advice. He relied upon the advice of his parents rather than making his own independent enquiries. Given his ongoing pain, anger at Dr Hunt in respect of the surgery, and the advice from Dr Penington that the surgery was inappropriate, it was not reasonable for Mr Holcombe to have delayed so long in obtaining legal advice.[8]
[8]Associate Justice’s Reasons [49].
Her Honour then noted that the respondent’s medical condition was such that his wellbeing and future employability was at risk, so that his loss was ‘potentially significant’.[9] Under the subheading ‘Synthesising all relevant factors’, Her Honour concluded as follows:
Mr Holcombe’s loss is potentially significant, and this decision will have a significant and harsh consequence for him. The nature and extent of the plaintiff’s loss is a factor that must be considered in the synthesis.[10] However, his decision not to obtain legal advice until early 2016 in circumstances where he had received Dr Penington’s advice in 2001 and was experiencing ongoing pain, weighs against granting the extension of time. The consequence was that he was not informed as to the limitation of actions. The inordinate length of the delay in bringing this proceeding also weighs against granting the extension. It is not such that a fair trial cannot be held. This latter factor should not override all the other factors. All circumstances must be considered. The extension must be reasonable, as well as just. I do not think it reasonable in all the circumstances. Justice is not simply to be assessed from Mr Holcombe’s viewpoint. Justice demands all circumstances be taken into account, including what is just for Dr Hunt and the hospital. Synthesizing all the relevant factors, it is not just and reasonable to extend time in this proceeding.[11]
[9]Ibid [52].
[10]Delai v Western District Health Service [2009] VSC 151.
[11]Associate Justice’s Reasons [56].
The appeal to the primary judge
The respondent’s Amended Notice of Appeal, from the decision of the Associate Justice, specified seven grounds. The respondent abandoned the fifth ground. The first, second, third and seventh grounds were treated by the primary judge, and by the parties in the application to this Court, as not alleging any specific error by the Associate Justice, but, rather, as alleging that the decision of the Associate Justice to refuse to extend time was so unreasonable or plainly unjust as to evidence error in the exercise of the discretion.[12] The primary judge upheld each of those grounds on that basis. The fourth ground of appeal alleged a failure by the Associate Justice to provide adequate reasons for her conclusion. That ground was not upheld by the primary judge. The sixth ground, which was also upheld by the primary judge, alleged specific error as follows:
6 The Learned Associate Justice erred in holding that:
(a)it was not reasonable for the appellant to have delayed so long in obtaining legal advice [49];
(b)the length of the delay in bringing the proceeding weighed against granting the extension of time [56].
[12]Cf House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ) (‘House’).
The reasons of the primary judge
Having set out the facts, and summarised the competing submissions of the parties, the judge commenced his conclusions by stating that he was satisfied that the decision of the Associate Justice, not to extend the limitation period, was plainly wrong, unreasonable or unjust, and that the judge had failed to properly synthesise the material considerations.
The judge noted that the Associate Justice had concluded that a fair trial could be held. His Honour also considered that the presumptive prejudice, referred to by the Associate Justice, should be discounted, because the first applicant was available to give evidence, the hospital records were in existence, and the nature of the proceeding was such that the key focus of the trial was likely to be determined by expert evidence, relevant to the issues to whether reasonable medical practice was engaged in by the first applicant. In addition, the judge considered that, by describing the respondent’s loss as ‘potentially significant’, the Associate Justice had not appropriately evaluated the nature and extent of the respondent’s condition, in that the refusal to extend the period of limitation denied the respondent the opportunity to obtain compensation for a substantial and significant injury.[13]
[13]Judge’s Reasons [47]–[48].
In addition, the judge considered that the Associate Justice’s conclusion, that the respondent’s conduct was unreasonable, not only contributed to an error in the synthesis of the competing factors, but also of itself constituted a specific error. The judge noted that commonly an applicant for an extension of time has acted unreasonably in some respect. However, s 27L of the Act focuses on the length and reasons for the delay, and what must be just and reasonable is the order extending the limitation period.[14] In that respect, the judge considered that the Associate Justice had addressed the wrong question and had given inappropriate weight to the issue whether, objectively assessed, the respondent’s conduct in not issuing his proceeding within time was reasonable.[15] In that way, his Honour found, the Associate Justice had placed undue weight on the issue of delay, and had failed to take into account the respondent’s explanation for not issuing proceedings, which, the judge considered was reasonable.[16] In particular, the judge accepted the respondent’s submission that he had given a reasonable and understandable explanation for the delay and for his subsequent change of mind.[17] His Honour stated:
Once it is accepted that the appellant provided a satisfactory explanation for the delay, the emphasis to be given to that factor in the synthesis is diminished while two powerful factors that support the conclusion that an extension would be just and reasonable remained operative.[18]
[14]Ibid [50].
[15]Ibid [51].
[16]Ibid [52].
[17]Ibid [53].
[18]Ibid [54].
Accordingly, the judge upheld the ‘House’ grounds of appeal (grounds one to three and seven), and his Honour was also satisfied that ground six was made out.
Proposed grounds of appeal
In this application, the applicants rely on two grounds of appeal, namely:
1.The primary judge was in error in finding that the Associate Justice had erred in finding that:
(a)it was not reasonable for the respondent to have delayed so long in obtaining legal advice; and
(b)the length of delay in bringing the proceeding weighed against granting the extension of time.
In particular, the judge erred:
(a)by misconstruing s 27L by reasoning that that section does not focus on whether the respondent’s delay was unreasonable;
(b)by concluding that the finding that the respondent was truthful and credible conflicted with the finding that the delay was not reasonable;
(c)by considering the subjective reason for the plaintiff’s delay rather than making a finding as to its objective reasonableness;
(d)because there was no error in the finding of the Associate Justice;
2.The judge erred in concluding that the exercise of the discretion by the Associate Justice was plainly wrong, unreasonable or plainly unjust.
Counsel submissions
Senior counsel for the applicants commenced his submissions by addressing the second ground of appeal. Counsel noted that the discretion, conferred on the Associate Justice by s 27K of the Act, is broad. There were factors that militated in favour of, and against, the exercise of the discretion in favour of the respondent. Accordingly, it was submitted, this is not a case in which it could be properly maintained that it was not open to the Associate Justice to refuse the application to extend time.
In particular, counsel submitted, the delay by the respondent in issuing proceedings was lengthy, in circumstances in which, since 2001, he had understood that the operation performed on him by the first applicant was inappropriate, and in which he had continued to suffer pain for a period of 15 years. Due to the length of the delay, it might be fairly presumed that there might be some prejudice to the applicants in the conduct of the trial. In addition, the first applicant, many years after the event, will face litigation which impugns his professional competence. In those circumstances, counsel submitted, it could not be concluded that it was not open to the Associate Justice to reject the application by the respondent for an extension of time.
In addressing both ground one and ground two, senior counsel submitted that, under the rubric of considering whether it was open to the Associate Justice to refuse the respondent’s application for an extension of time, the primary judge impermissibly embarked on his own assessment of the weight to be accorded to the relevant factors. Further, it was contended, the primary judge erred in concluding that the Associate Justice’s characterisation of the respondent’s loss as ‘potentially significant’ did not constitute an appropriate evaluation of the loss. In addition, counsel contended, the primary judge erred by considering that the factors, enumerated in s 27L, do not focus on whether the respondent’s delay had been unreasonable, and in considering that the real issue was whether the length of the delay was adequately explained. Counsel submitted that the primary judge thereby failed to make an appropriate assessment of the objective reasonableness of the respondent’s conduct, contrary to the express requirements of s 27L(1)(f) of the Act.
Thus, it was submitted, the judge erred in concluding that the finding by the Associate Justice that the respondent was ‘truthful and credible’ conflicted with the finding that his delay in the institution of proceedings was not reasonable. Counsel contended that the critical question was whether it was objectively unreasonable for the respondent to rely on his parents’ advice, and not to seek professional advice, in circumstances in which the respondent had been advised, by Mr Penington, that the operation performed on him by the first applicant was inappropriate, and in circumstances in which, as early as 2005, the consequences from his injuries were of such severity that he was required to change his employment and to undertake treatment at a lymphoedema clinic.
Senior counsel for the respondent commenced his submissions by addressing ground one. He submitted that the judge was correct to find that the Associate Justice had erred in finding that it was not reasonable for the respondent to have delayed in obtaining legal advice. Counsel submitted that the primary judge’s conclusion is supported by the explanation given by the respondent for the delay, namely the advice that he received from his parents, the fact that the respondent continued to work until he suffered cellulitis in late 2015, and the fact that the respondent was not aware of the applicable time limits for bringing his claim until he obtained legal advice in 2016. Counsel further noted that the circumstances that arose in late 2015, that caused the respondent to seek legal advice, were significantly different to those that had affected him in the preceding years. The respondent’s symptoms had significantly worsened, so much so that he required repeated hospitalisation. His capacity to continue work was under threat. At the same time, he heard a radio advertisement, which, for the first time, brought to his mind the possibility that he might be able to obtain legal advice in respect of his rights at no expense to him.
Counsel for the respondent noted that the first ground of appeal, relied on by the applicants, is based on the proposition that s 27L(1)(f) of the Act requires the Court to undertake an objective assessment of the reasonableness of the respondent’s conduct. Counsel submitted that that proposition misconceives the nature of the exercise the Court must undertake in applying the various considerations enumerated in s 27L(1). In particular, it was submitted, the correct approach is to consider all the circumstances that affect the particular applicant. In support of that proposition counsel relied on the decision of J Forrest J in Davies v Nilsen,[19] in which His Honour assessed the reasonableness of the applicant’s conduct by reference to the particular subjective circumstances of that applicant. Thus, it was submitted, the primary judge correctly held that the finding by the Associate Justice, that the respondent was ‘truthful and credible’, was inconsistent with her conclusion that the respondent’s delay was not reasonable.
[19][2015] VSC 584 (‘Davies’).
In that connection counsel contended that in her reasons, the Associate Justice had failed to take into account the significantly different circumstances that confronted the respondent when, in early 2016, he first sought legal advice, and, in particular, the severe deterioration in the respondent’s condition commencing late 2015, together with his understanding from the radio advertisement that he might be able to commence proceedings against his medical practitioner without cost to himself. For those reasons, it was submitted, the primary judge was correct to conclude that the Associate Justice had erred in holding that it was not reasonable for the respondent to have delayed in obtaining legal advice until 2016.
In response to ground 2, counsel for the respondent submitted that the judge was correct to find that the Associate Justice’s exercise of the discretion in s 27K(2) of the Act in a manner that was plainly wrong, unreasonable or unjust and bespoke error in the synthesis of the various factors. The applicants did not allege any specific prejudice. The Associate Justice was satisfied that, if the limitation period was extended, the applicants would receive a fair trial. The respondent had provided a reasonable explanation for his delay and his subsequent change of mind. During the period of delay, the respondent had been stoic, and he had continued to work and live his life, notwithstanding the discomfort occasioned to him by his condition. He only resorted to litigation when his condition deteriorated significantly. Counsel submitted that all those factors had weighed in favour of the exercise by the Associate Justice of the discretion in favour of the respondent. The only factor in the synthesis, which weighed against the respondent, was the length of the delay. However, it was submitted, taking into account the respondent’s explanation for that delay, the judge was correct in concluding that the decision made by the Associate Justice was plainly incorrect.
Analysis and conclusions
Section 27K(2) of the Act provides that where a person applies for an extension of a period of limitation applicable to the cause of action sought to be relied on, the Court ‘may’, if it decides it is ‘just and reasonable to do so’, order the extension of the period of limitation applicable to that cause of action. In that way, the Act reposes in the Court a discretion, to be exercised judicially in all the circumstances of the case. Section 27L provides that, in the exercise of that discretion, the Court shall have regard to ‘all the circumstances of the case’, including (but not limited to) the factors enumerated in sub-paras (a)–(g) of that provision.
In order to disturb the exercise of the discretionary judgment by the Associate Justice, the respondent was required to establish, before the primary judge, that that judgment was either the product of a specific error by the Associate Justice, or that it was unreasonable or plainly unjust so that the Court might infer that there had in some way been a failure by the Associate Justice to properly exercise the discretion vested in her by s 27K(2) of the Act.[20]
[20]House (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
The principles that apply to the review of such an exercise of a discretion are well established.[21] First, the appellate court is not entitled to substitute its own view for the discretion entrusted to the primary adjudicator, in this case, the Associate Justice. Thus, in considering questions of weight, the appellate court should not regard itself as being in the same position as the Associate Justice.[22] Secondly, where, as in this case, the discretionary judgment, under appeal, is the product of a synthesis of a number of factors, the appellate court should not be astute to discern error, where the decision under review has not specifically mentioned, or referred to, a particular fact or circumstance. In particular, ordinarily, there is a presumption in favour of the correctness of the decision that is the subject of appeal.[23]
[21]Minister for Immigration v SZVFW [2018] HCA 30 [37], [44], [47] (Gageler J); [85]-[86] (Nettle and Gordon JJ with Kiefel CJ agreeing).
[22]Lovell v Lovell (1950) 81 CLR 513, 519 (Latham CJ).
[23]Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627 (Kitto J).
The question for this Court, then, is whether, taking into account those principles, the applicants have established that the primary judge erred in reaching the following conclusions:
(1) That the Associate Justice erred in concluding that it was not reasonable for the respondent to have delayed obtaining legal advice until February 2016.
(2) That in the circumstances the decision by the Associate Justice, not to extend the limitation period, was plainly wrong, unreasonable or unjust, and bespoke error by the Associate Justice in the synthesis of the relevant factors.
It is quite evident, both from the facts in the case, and from the reasons of the Associate Justice, that, apart from the question of the delay, all of the other factors that were relevant to the exercise of the discretion by the Associate Justice, weighed significantly in favour of the grant of an extension of the period of limitation applicable to the cause of action relied on by the respondent. Notwithstanding the lengthy delay in the commencement of the proceedings, no evidence was adduced by either applicant as to any specific prejudice occasioned to them as a consequence of that delay. Thus the Associate Justice, correctly, concluded that the delay in the case is not such that the applicants could not have a fair trial of the claim by the respondent against them.[24]
[24]Associate Justice’s Reasons [45].
The Associate Justice did accept that there would be some ‘presumptive prejudice’ to the applicants, of the nature described by McHugh J in Taylor.[25] In that case, McHugh J stated:
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 … 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. … 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.[26]
[25](1996) 186 CLR 541.
[26]Ibid 551.
In the present case, the nature of the allegations made against the applicants, in the statement of claim, are relatively confined. As mentioned, they principally focus on three propositions: first, the decision to undertake the surgery in question; secondly, the failure to carry out appropriate radiological examinations before undertaking the surgery; and, thirdly, the decision by the first applicant, as a general surgeon, to conduct surgery which should have been performed by an experienced vascular surgeon or with the involvement of a multi-disciplinary team. It is unlikely that the capacity of the applicants to address those issues will be as adversely affected by the type of presumptive prejudice, described by McHugh J, as might occur in other cases. Rather, we would expect that the principal issues in the trial would primarily be addressed by expert medical evidence as to whether the procedure, undertaken by the first applicant, was appropriate, and whether the respondent’s current condition was caused in any material way by the surgery undertaken by the first applicant. Accordingly, the Associate Justice was clearly correct to conclude that the applicants would not be so prejudiced by the effluxion of time that a fair trial could not be held.
As the Associate Justice correctly noted, the respondent’s loss, as a result of the injury sustained by him, is potentially significant, if not most substantial. Since the onset of cellulitis at the end of 2015, the respondent’s condition has become particularly serious. It has interfered with his ability to work, and, as such, it constitutes an imminent threat to his capacity to continue in gainful employment. In addition, it has significantly interfered with his capacity to participate in, and enjoy, the ordinary activities of his daily life. At 44 years of age, the respondent faces a most uncertain future in respect of his working life and more generally. If he develops an immunity to the regime of antibiotic medication that is used to treat his episodes of cellulitis, his future health is in real doubt.
Those factors, taken together, weighed heavily in favour of the grant of the application by the respondent for an extension of time. However, the Associate Justice considered that, notwithstanding those factors, the lengthy delay by the respondent, in issuing the proceedings, was such that it was not just and reasonable to grant an extension of time to the respondent. Central to that conclusion was the finding by the Associate Justice that it was not reasonable for the respondent to have delayed for so long in obtaining legal advice in relation to his rights against the applicants. The Associate Justice was of that view because the respondent, during the period of delay, had experienced ongoing pain, he was angry at the first applicant in respect of the surgery, and he had received advice from Mr Penington in 2001 that the surgery was not appropriate.
As mentioned, on this application, counsel for the applicants contended that the question, under s 27L(1)(f) of the Act, whether the respondent gave a reasonable explanation for the delay, involves the application of a wholly objective test. We do not consider that submission to be correct. In any case, 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 the reasonableness of an explanation for a 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.
The correct approach to that issue is the approach adopted by J Forrest J in Davies.[27] In that case, the plaintiff was injured in a motor vehicle collision in 1995. She consulted a solicitor in relation to a Workcover claim against her then employer. However, she did not take any steps to prosecute her case against the other driver for common law damages until 2007. J Forrest J granted the plaintiff an extension of time, notwithstanding that his Honour considered that, in light of the plaintiff’s disability, her conduct in leaving her claim for damages unexplored for so long ‘was unsatisfactory’.[28] In reaching that conclusion, his Honour stated, in terms that are relevant for the present application:
However, it is often easy for lawyers (and judges) to fall into the trap of evaluating a lay persons actions through an adversarial legal prism. Ms Davies was a young woman with no legal training and, in particular, no knowledge of the intricacies of tort law and the statutory modifications in this state. On her account, she had not been told anything about limitation provisions or common law claims. Whilst a more prudent person may have sought a second opinion, I do not regard her lack of action in this period as fatal. I take a similar view of the delay in consulting Clark and Toop after receiving the advice of Dr Pastore.[29]
[27][2015] VSC 584.
[28]Ibid [105].
[29]Ibid [106].
In the present case, there were two important factors, personal to the position of the respondent, that were of central relevance to the resolution of the question whether it was reasonable for the respondent to have delayed until 2016 to obtain legal advice in respect of his rights against the applicants.
The first factor concerned the nature of the advice given to the respondent by his parents. That advice was not the product of some uninformed speculation by his parents, or the product of idle gossip to which they had been a party. Rather, it was based on a traumatic and difficult experience suffered by the respondent’s parents. Having nearly lost their son to a serious medical condition, the respondent’s parents had been confronted with a threat of legal proceedings against them for defamation by the medical practitioner who had been responsible for treating their son. It is unsurprising, and understandable, that, in those circumstances, the respondent, as a member of a family which had undergone such a difficult experience, gave weight to and accepted the views of his parents as to the inadvisability of seeking to claim legal redress against his surgeon in respect of the operation conducted on his leg.
The second factor, relevant to the reasonableness of the delay by the respondent, concerned the circumstances of the respondent between 2001 and 2016. It is particularly relevant that, notwithstanding his persistent pain levels, the respondent remained in employment during the whole of that period. In 2006, his condition had deteriorated to the extent that he was forced to change the nature of his employment, and to seek treatment for the onset of lymphoedema. However, despite that difficulty, the respondent secured alternative employment as a truck driver, and continued to work in that capacity for the following ten years. At the same time, he established a new family with his new partner and participated in the raising of their children. It was not until the end of 2015 that his circumstances radically changed, with the onset of the first bout of cellulitis. From that time, the respondent suffered a series of recurrences of that condition, and each episode was worse than its predecessor. As a consequence he has suffered an increasing degree of pain and disability. His working life and his future earning capacity were placed in jeopardy.
It was at that time, and in particular in February 2016, that the respondent first learnt that the lymphoedema in his right leg presented a longer term risk of cellulitis to him, with all the consequences that that entailed. In addition, at that time, the respondent was advised by the medical practitioners who attended him that if he developed an immunity to the antibiotics that were being administered to him, then his condition would become untreatable. At the same time, he heard an advertisement on the radio on behalf of lawyers offering that a person could speak to them for legal advice, and if the matter was to proceed, it would be on the basis of that if he did not succeed in the litigation, he would not have to pay for it.
In that way, the position of the respondent altered significantly at the end of 2015 and in early 2016. Those circumstances were of central importance in determining the question of the reasonableness of the respondent in delaying the issue of proceedings until 2016. In short, they provided the answer to the question why he chose to commence proceedings in 2016, instead of in 2001. The new factors, that had emerged in 2015 and 2016, shed important light on, and give perspective to, the factors that affected the respondent between 2001 and 2015, and on the basis of which the respondent had chosen not to seek legal advice concerning his rights against the applicants. The respondent’s evidence, that was accepted by the Associate Justice, was that during that time he adopted a stoic attitude to his pain levels, and regarded his condition as part of the lot that fate had dealt to him. He did not know ― nor was there any reason for him to know ― that the adverse effects of the surgery, conducted by the first applicant, might include the onset of debilitating episodes of cellulitis, which in turn could become incapable of being treated by anti-biotic medication. Nor was he to know, during that period, that, by reason of his injury, his working life would be in real jeopardy.
In her reasons, the Associate Justice concluded that it was not reasonable for the respondent to have delayed for so long in obtaining legal advice, because the respondent had experienced ongoing pain, he was angry at the first applicant in respect of the surgery, and he had received advice from Mr Penington, in 2001, that that surgery was not appropriate for him. That conclusion, by the Associate Justice, necessarily involved a judgment on which different minds might ordinarily differ. Accordingly, an appellate court ought not to set that conclusion aside, unless there is good reason to do so.
However, and giving full weight to that principle, it is inescapable that the analysis undertaken by the Associate Justice did not resolve, or take into account, the two factors to which we have just referred, and which were, necessarily, central to the question whether the respondent had acted reasonably in not seeking legal advice concerning his rights against the applicants until early 2016. That question must involve a consideration of the circumstances in which the respondent’s parents had originally formed their view as to the inadvisability of making a claim against a medical practitioner, of the circumstances in which the respondent continued to work and participate in his daily life until the end of 2015, and of the significant change that his life had undergone with the onset of cellulitis. None of those factors, it would seem, were taken into account or formed part of the analysis by the Associate Justice of the central question whether the delay by the respondent in seeking legal redress for his injuries was reasonable.
On any view, the onset of repetitive bouts of cellulitis suffered by the respondent were a new, and significantly important, factor. Before the onset of that condition, and its debilitating effects, it is understandable that the respondent had chosen not to seek redress for the injuries that he had sustained as a consequence of the surgery undertaken by the first applicant back in 2001. However, his condition became radically different since that complication set in. The respondent’s evidence, accepted by the Associate Justice, was that it was not until February 2016 that he was advised that the lymphoedema in his right leg, which was a result of the surgery undertaken by the first applicant, had created a longer term risk of cellulitis, which came to pass in late 2015.
For those reasons, we consider that the primary judge was correct to hold that the Associate Justice erred in concluding that it was not reasonable for the respondent to have delayed for so long in obtaining legal advice in respect of his rights against the applicants. The primary judge was correct to conclude that, if the matters to which we have referred were taken into account, it could not reasonably be concluded that the respondent had acted unreasonably in delaying obtaining advice until that date.
That conclusion disposes of the first ground of appeal. In addition, the matters that we have just discussed were particularly relevant to the synthesis that is required to be undertaken by the Associate Justice in determining whether, in the circumstances, it was just and reasonable to order the extension of the period of limitations sought by the respondent. As we have mentioned, the only factor that weighed against the exercise of the discretion in favour of the respondent was the delay. The weight to be given to that factor necessarily involved a proper consideration of the respondent’s reasons for the delay.
In the concluding paragraph of her decision, the Associate Justice did not refer to, or examine, the matters that we have referred to, which significantly differentiated the position of the respondent in 2015 to his circumstances and position during the preceding 15 years. If those factors were taken into account and given proper weight, it would follow that the conclusion by the Associate Justice, that it was not just and reasonable to extend the period of limitation applicable to the respondent’s cause of action, was plainly unjust and unreasonable. In a case in which the respondent had suffered serious injury, where there was no specific prejudice to the applicants by reason of the delay, where the respondent had been credible and truthful in explaining the reason why he had not commenced proceedings earlier, and where those reasons were, on their face, reasonable, a conclusion that it was not just and reasonable to extend the period of time was not, in our view, reasonably open to the Associate Justice.
It follows that the primary judge was correct in upholding the grounds of appeal before him based on the proposition that the Associate Justice’s decision was unreasonable or plainly unjust. Accordingly, the second proposed ground of appeal before us must fail.
For the foregoing reasons, we will grant leave to appeal, but dismiss the appeal.
---
11
8
0