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Hunt v Holcombe

Hunt v Holcombe

Case [2018] VSCA 248 27 September 2018

Limitation Periods

Appeal

Medical Law

Civil Litigation & Procedure

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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

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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)

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hunt v Holcombe

Details

AGLC: Hunt v Holcombe [2018] VSCA 248
Case: [2018] VSCA 248
Decision Date: 27 September 2018

CaseChat Overview and Summary

In the matter of Hunt v Holcombe, the plaintiff sought damages for medical negligence against the defendant, alleging that the defendant's actions during a surgical procedure resulted in significant injuries. The case was heard in the Supreme Court of Victoria, with an appeal subsequently brought before the Court of Appeal.

The central legal issue before the Court of Appeal was whether the Associate Justice was correct in declining to grant an extension of the limitation period under the Limitation of Actions Act 1958. The plaintiff contended that the delay in bringing the proceedings was due to the plaintiff's lack of knowledge of the defendant's negligence and subsequent changes in the plaintiff's circumstances. The Court of Appeal had to determine whether the Associate Justice had correctly applied the factors to be considered when granting an extension of the limitation period, specifically under sections 27K and 27L of the Limitation of Actions Act 1958.

The Court of Appeal determined that the Associate Justice had exercised his discretion appropriately in declining to grant an extension of the limitation period. The court found that the plaintiff had not provided a reasonable explanation for the delay in bringing the proceedings. Furthermore, the court held that the plaintiff had not demonstrated a change in circumstances or knowledge that warranted an extension of the limitation period. The Court of Appeal concluded that the Associate Justice's decision was not unreasonable and dismissed the appeal. Consequently, the plaintiff's application for leave to appeal was granted, but the appeal itself was dismissed.

Orders