Jones v Jackson
[2013] VCC 2
•7 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
MEDICAL DIVISION
Case No. CI-09-05445
| DELLA JONES | Plaintiff |
| v | |
| RODNEY JACKSON | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2012 | |
DATE OF JUDGMENT: | 7 February 2013 | |
CASE MAY BE CITED AS: | Jones v Jackson | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2 | |
REASONS FOR JUDGMENT
Subject: LIMITATION OF ACTIONS
Catchwords: Application for an extension of time pursuant to s27 – negligence – optometrist – personal injury – when cause of action discoverable under s27F of the Limitation of Actions Act 1958 – whether limitation period should be extended under s27K
Legislation Cited: Limitation of Actions Act 1958, s5(1)(a), 5(1AA), 27D, 27F, 27K and 27L.
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Cowie v State Electricity Commission of Victoria (1964) VR 788; Bell v SPC Ltd [1989] VR 170; Richards v State of Victoria & Ors [2001] VSC 52; Tsiadis v Patterson [2001] 4 VR 114; Delai v Western District Health Service & Anor [2009] VSC 151; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Donmez v Neissa [2012] VSC 73; Callan v Healthscope Ltd [2008] VSC 88; Spandideas v Vellar [2008] VSC 198; Vellar v Spandideas [2008] VSCA 139; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Myer Melbourne Ltd v Hammond [1984] VR 40; Ford Motor Company Australia Ltd v Kulic [1988] VR 152; Burk v Commonwealth (No 2) [2002] VSC 464; Tavsanli v Phillip Morris (Australia) Ltd (unreported, VSC, 286 of 1989, BC8900545).
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton SC and Ms B Y Knoester | Maurice Blackburn Lawyers |
| For the Defendant | Mr N Murdoch | Avant Law Pty Ltd |
HER HONOUR:
1 This is an application, without summons and by consent orders, by the plaintiff to extend time pursuant to s27K and 27L of the Limitation of Actions Act 1958 (“the Act”).
2 It is alleged that the defendant, an optometrist, in the course of his treatment of the plaintiff prior to April 1999, failed to perform a visual field test assessment (“the test”) and failed to diagnose open angle glaucoma (“the condition”). The condition was ultimately diagnosed in 2005 when another optometrist performed the test.
3 The writ was filed in this matter on 17 November 2009 and served a year later. Counsel for the plaintiff conceded the cause of action was discoverable at least by December 2005, when the plaintiff saw a specialist, Professor Rait. Thus, it became statute-barred at least by December 2008.
4 In such circumstances, an extension of time is sought pursuant to s27F of the Act. The Court, subject to s27L, may, if it decides it is just and reasonable to do so, extend the period of limitation applicable to the cause of action for such period as the Court determines.
5 Section 27L sets out the matters to be considered in determining such applications:
“(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2)To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b)the nature and extent of the plaintiff's loss; and
(c)the nature of the defendant's conduct.”
The Plaintiff’s Evidence
6 The plaintiff is a fifty-nine year old retired secondary school teacher who lives in Morwell. The defendant was her optometrist between 1987 and 1999. The plaintiff wore contact lenses.
7 In about 1995, the plaintiff’s father was diagnosed with the condition, and it is not in dispute that the plaintiff gave this family history to the defendant. In the course of his treatment of the plaintiff, the defendant performed some tests, but did not perform the test.
8 In 2003, the plaintiff changed optometrists and commenced seeing Mr Thomson, who lived nearer to her Moe home. In March and April 2005, he performed the test that led to the diagnosis of the condition.
9 Mr Thomson referred the plaintiff to a specialist, Dr Nagle, whom she saw with her husband in May 2005. Dr Nagle confirmed the plaintiff was suffering from the condition.
10 The plaintiff deposed that when she saw Dr Nagle, her husband asked him what had caused the damage and why it had gone unchecked. The plaintiff did not believe Dr Nagle suggested a definite cause but did not rule out the possibility of negligence by previous optometrists. The discussion was short and did not go into any detail as to which optometrist might be responsible.
11 The main focus of the consultation from the plaintiff’s point of view was to understand the diagnosis, explore treatment options and understand what the future held for her vision.
12 Soon thereafter, the plaintiff’s husband raised the possibility of investigating a legal claim. The plaintiff flatly rejected this suggestion because she and her husband had been involved in a lengthy dispute with the Council about tree clearing on their farm. Although that case finished in 2003, the plaintiff still felt very anxious about becoming involved in any legal proceeding. That earlier case was very costly and stressful and the plaintiff did not want that experience repeated, particularly at a time when she was shocked and devastated by the irreversible loss of her vision.
13 In cross examination, the plaintiff agreed Dr Nagle told her she was definitely suffering from the condition and that the loss of vision was permanent. She knew what that meant to some extent and that Mr Thomson’s test had led to the diagnosis, and that she had not had the test previously.
14 The plaintiff agreed that the defendant had let her down in not diagnosing the condition. She explained that in May 2005, she was not thinking very systematically about this issue when her husband raised it – she just did not want to think about it, and she did not think about it.
15 The plaintiff understood that in certain circumstances a person could seek compensation against someone at fault but she was not then aware of any time limits for bringing such proceedings.
16 The plaintiff did not discuss the issue with her husband between May and December 2005.
17 Professor Rait took over the plaintiff’s care in December 2005.
18 The plaintiff deposed that when she saw Professor Rait, her husband asked him whether he thought the plaintiff should look into a claim against previous optometrists and was told it would be reasonable to do so. They did not go into any detail as the plaintiff was more interested in seeing what could be done about her eyes. She had no interest at that time in taking legal action due to previous bad experiences with litigation.
19 The plaintiff believed she did not encourage the discussion of legal action as she was concerned to attend to medical treatment issues. There was no specific discussion about what legal action might involve or who might be responsible for any mismanagement or whether there was any time limit for making a claim.
20 In December 2008, in general conversation with Professor Rait, he asked the plaintiff and her husband if they had ever consulted a solicitor over the issue. The plaintiff told Professor Rait that she had not.
21 Professor Rait indicated, from a medical viewpoint, he thought the optometrists had not done the appropriate tests and if they had, she would not have suffered the vision loss that occurred. Professor Rait did not suggest the matter needed urgent attention, nor was the plaintiff aware of time limits from her general knowledge.
22 After that consultation, the plaintiff decided to explore the possibility of making a claim against any optometrist who was responsible for the delayed diagnosis of the condition and her loss of vision.
23 At the end of January 2009, the plaintiff made an appointment with Tailored Eyewear to see if she could get her history from Jackson & Lawry.
24 Ms Mildenhall of Tailored Eyewear put together a complete summary of the plaintiff’s situation and sent it to Professor Rait on 5 February 2009, as the plaintiff wanted him to be aware of the background so she could discuss the details with him before she sought legal advice.
25 The plaintiff then did not think there were any time issues so she waited until her scheduled June 2009 consultation.
26 The plaintiff then discussed her previous treatment with Professor Rait and he recommended she seek legal advice. He indicated a review of the material suggested to him that the previous optometrical management was not appropriate.
27 Until after that consultation, the plaintiff did not make any enquiries with a solicitor about making a claim. She did not consider it. She was focussing on getting better and on managing her disability and was also very reluctant to get into legal proceedings in light of her previous bad experience.
28 As the plaintiff had no reason to believe there were any time limits, she took another two months to decide to seek legal advice. She was also occupied caring for her husband, who had a back injury.
29 The plaintiff telephoned Ms Bede at Maurice Blackburn (“the firm”) on 16 September 2009. The plaintiff sent the firm the records that she had sent to Professor Rait so those could be reviewed prior to a meeting, which ultimately took place on 9 October 2009.
30 At that meeting with the firm, the plaintiff first became aware she was out of time for bringing a claim unless given an extension. Since instructing the firm, she has been responsive to any request that has been made in relation to her legal claim.
The Plaintiff’s Explanation for Delay
31 The plaintiff deposed she was feeling very anxious after the condition was diagnosed in 2005 and came to realise her classroom management problems had stemmed from a decline in her peripheral vision which she first experienced just before the diagnosis. She believed the problem became noticeable in about 2003 but could not assign a specific date as it evolved slowly over a period of time.
32 As the leading teacher with the responsibility for overseeing classroom discipline of other teachers, the plaintiff found herself in a painfully embarrassing position of trying unsuccessfully to stay on top of discipline in her own classroom, which previously had been a point of pride, while offering advice to other teachers. This situation caused the plaintiff increasing stress.
33 The plaintiff started to get palpitations and shortness of breath while approaching the school on her way to work. She had trouble sleeping, experiencing nightmares about the classroom.
34 The plaintiff sought medical advice from her doctor, who advised counselling and prescribed Lovan, an antidepressant medication, from September 2007 to August 2009. During the same period, the plaintiff was being counselled by her general practitioner. The plaintiff found it hard to concentrate.
35 The plaintiff took sick leave and long service leave from about mid 2007 and gave up work completely in November 2008 as she was not coping. Before leaving work she was struggling to cope in the classroom and experiencing debilitating anxiety symptoms. She was not considering making a compensation claim.
36 Due to the plaintiff’s retirement from work, she and her husband also had significant financial pressures that were causing her worry.
37 The plaintiff deposed that she believed those anxieties and worries weighed heavily on her mind and affected her ability to think about legal proceedings in a systematic way. She deposed perhaps she should have thought that this sort of case might be different to the dispute with the Council but she was so anxious that she focussed on her inability to cope with any more stress.
38 In her supplementary affidavit sworn in October 2012, the plaintiff deposed that she now believes her early vision problems from 2002 were not just due to ageing but also because of her loss of range of vision.
39 The plaintiff gave further details as to the Council dispute and the fact the Council supported her neighbours who opposed to the plaintiff and her husband farming on the property they had purchased.
40 Further, the plaintiff’s husband was charged with assault after a fight with a neighbour. The matter went to the County Court. He was given a bond and lost his firearms licence and the matter went before the Firearms Tribunal.
41 The plaintiff deposed those legal disputes were stressful and protracted.
42 Although the plaintiff had lawyers helping from time to time, but not consistently, especially with the assault charge, most of the time she and her husband acted for themselves because lawyers were too expensive. The plaintiff estimated they spent about $30,000 in total on lawyers and associated costs over the years, which was a lot of money for them.
43 The plaintiff found those disputes intensely stressful, and hated them. She was worried she and her husband would be ruined. They resolved the dispute in 2003 by agreeing to assign some of the property for wildlife and then selling the property.
44 In her second affidavit, the plaintiff gave further details of her problems struggling with the stress at school even before the diagnosis, losing control of the classroom and not knowing why. She did not at that time seek much help from Dr Buras because he was also the principal’s doctor and she did not want anyone to know how difficult she was finding things. She confirmed this situation in her viva voce evidence.
45 After the diagnosis, the plaintiff’s stress worsened and she was told she had lost fifty per cent of her field of vision and it might progress. She was aware she might have a claim but was not aware there were any time limits that applied. She had never sued anyone before.
46 The plaintiff was frightened she might become blind. She felt threatened and struggled on at school and started to get help from Dr Buras but ultimately could not cope.
47 The plaintiff took leave throughout 2008 before resigning in November 2008 as she did not have the emotional strength to return to teaching. She felt a lot of relief when she resigned and a large part of the stress was removed.
48 Throughout that time, due to a combination of the stress due to her damaged eyesight and associated difficulties with teaching, and the fact she felt she was unable to go back to work and that her experience with legal matters had been so stressful, the plaintiff was unable emotionally to bring herself even to consider whether to investigate whether or not she should commence legal proceedings. She felt she could not cope with the stress of even speaking to lawyers about it, let alone bringing a proceeding. She felt she was at her coping limits just getting through each day and doing what she could to prevent her eyesight deteriorating and trying to deal with that problem as best she could.
49 The plaintiff confirmed that in December 2008, Professor Rait had asked if the plaintiff and her husband had consulted solicitors over the case. The plaintiff was only able to take the steps referred to in her earlier affidavit at that time because of the improvement in her mental state following her resignation.
50 In cross examination, the plaintiff described seeing Dr Buras in relation to anxiety in 2002. She possibly spoke to him about stress at school in the middle of 2004 and in 2005. In August 2007, the plaintiff started to see him almost monthly for matters including work stress.
51 Whilst still at work, the plaintiff found her classroom discipline and control was declining. She started to feel distressed and upset and did not want to tell anyone what was happening to her as she was embarrassed. She found that students were getting away with things that she was not noticing. She was also having sleeping problems and nightmares about school issues and found herself crying and unable to go into class. She felt devastated to think that she may go blind very early.
52 In the months after the plaintiff ceased work at the end of June 2007, taking her leave entitlements, she was prescribed the antidepressant, Lovan, “pretty continuously” by Dr Buras. During that time, the plaintiff agreed she was doing much better. She helped her husband to a limited extent on the farm but was not doing a lot that was productive – “really just bumbling about the house”.[1]
[1]Transcript (“T”) 23
53 The plaintiff believed she was precluded from seeing a solicitor because of her depression and anxiety. The plaintiff agreed she felt more settled away from school but that was as long as there was nothing to upset the equilibrium of her life, and it did not take much to upset it, “anything that was slightly out of left field would just throw [her] into panic”.[2]
[2]T24
54 The plaintiff’s husband did not raise the issue of legal proceedings with her in this time because she had been quite vehement in her refusal to consider doing anything.
55 Following her resignation in November 2008 taking her superannuation, the plaintiff felt better, although she had not intended to retire but for her eyesight problems.
56 Whilst counsel for the defendant conceded there were good reasons for the delay between 2000 and May 2005 because the condition was not diagnosed, it was submitted that between May 2005 and 2010, there was no good reason proffered for the period of delay.
57 Counsel for the defendant submitted that the plaintiff “not coping with work” by the end of 2007 did not arise all of a sudden. There is no real explanation for the inactivity between May 2005 and 2007 when the plaintiff stopped work. She was then at home on the farm for eighteen months. She was being treated with antidepressants by her general practitioner and not having any specialist treatment. She did not have the stress of having to go to work.
58 It was submitted the plaintiff would have been as capable then of seeing a solicitor as she was in January 2009. The only thing that had changed was that she had retired from work. Saying she was “just getting by” was not a sufficient reason to say she was incapable of seeing a solicitor.
59 It was submitted the plaintiff had been on the receiving end of the earlier legal proceedings and that was very different to being the instigator. She knew she could go and see a solicitor and she decided not to do that.
60 Further, no explanation was given for the time delay between January and September 2009, save that the plaintiff said “I didn’t know there were time limits”. Finally, between instructing the firm and a year later, the plaintiff apparently took no steps and made no enquiries as to the progress of her claim in that period.
The Plaintiff’s Solicitor
61 The plaintiff’s solicitor, Ms Bede, swore an affidavit on 27 April 2012. She deposed that she first spoke to the plaintiff by phone on or about 16 September 2009 when the plaintiff rang to enquire about an appointment to discuss a possible negligence action, advising about the failure to diagnose the condition over a number of years.
62 Ms Bede asked if the plaintiff could obtain her optometry records. The plaintiff advised she could, and Ms Bede asked that they be sent to her for review before they met. Those records were forwarded on 24 September 2009.
63 On 6 October 2009, Ms Bede’s assistant called the plaintiff to arrange a conference to discuss making a negligence claim.
64 Prior to that meeting, Ms Bede reviewed The Royal College of Ophthalmologists; Guidelines for the Management of Open Angle Glaucoma.
65 Ms Bede met with the plaintiff and her husband for the first time on 9 October 2009 and took the plaintiff’s instructions regarding the events that occurred that concerned the late diagnosis and consequent delay in treatment of her glaucoma. The plaintiff then informed Ms Bede that she had no knowledge about any time limits for the bringing of a claim.
66 On 11 October 2009, Ms Bede made enquiries of the plaintiff’s treating ophthalmologist, Professor Rait, via email and was advised by him on 20 October 2009 that the plaintiff would have a greater than five per cent whole person injury for the purpose of satisfying the Wrongs Act.
67 Thereafter, Ms Bede advised the plaintiff she thought there was sufficient support for the claim to proceed with an investigation, and recommended a generally endorsed writ be filed.
68 On 21 October 2009, Ms Bede drafted a generally endorsed writ and prepared a chronology for the plaintiff to check, and the plaintiff responded on 25 October 2009.
69 On 29 October 2009, Ms Bede instructed her legal assistant to undertake a company search and check the legal entity name for Thrifty’s Regional Eyewear. On 9 November 2009, Ms Bede requested a report from Professor Rait relating to his treatment of the plaintiff.
70 On 16 November 2009, Ms Bede redrafted the generally endorsed writ and sent it to the Court for filing.
71 Ms Bede deposed, in the period from first obtaining instructions until November 2010, she searched for an expert who would provide a view on liability. On 14 February 2011, she requested a report from Professor Vingrys and was told he was too busy to write a report.
72 On 3 November 2010, Ms Bede wrote letters to each of the first and third defendants identified on the writ, advising them she wanted to serve the writ, and asking if they could put the matter in the hands of their insurer or solicitor.
73 Ms Bede served the second defendant by post on 3 November 2010, and the first defendant was served on 10 November 2010.
74 On 15 November 2010, Ms Bede made an ex parte application to extend the time for service on the third defendant. This application was granted, and service was effected on 23 November 2010.
75 On 4 February 2011, Ms Bede received a report from Professor Rait dated 25 January 2011. She reviewed that report on 4 February 2011 and made a request for further information on 8 February 2011.
76 On 21 February 2011, Ms Bede received a further letter from Professor Rait. On 20 April 2011, Ms Bede requested a report from Professor Lorraine Dennerstein, psychiatrist, which she received on 29 November 2011.
The Law
77 In explaining the rationale for limitation periods, McHugh J said, in Brisbane South Regional Health Authority v Taylor:[3]
“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 ‘where 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 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 … 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 while 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.”
[3](1996) 186 CLR 541
78 As Beach J noted in Delai v Western District Health Service & Anor,[4] whilst the Court, in Tsiadis v Patterson[5] distinguished Brisbane South Regional Health Authority v Taylor,[6] it did not, “either in terms or by implication, distinguish the statements made in that case as to the rationale for the existence of limitation periods and the interaction between statutory time bars and the question of prejudice to a defendant when a court makes an order which effectively overrides them” – see Burk v Commonwealth (No 2).3
[4][2009] VSC 151 at 25
[5](2001) VR 114
[6]supra
79 The Court of Appeal in Vellar v Spandideas[7] referred to the joint judgment of Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor 5 where they agreed that “the ultimate onus of satisfying the Court that time should be extended remains on the applicant”[8] but reiterated the recognition of Gowans J in Cowie v State Electricity Commission of Victoria[9] that when prejudice is alleged due to the effluxion of time:
“… [i]t is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.”[10] - 21#21
[7][2008] VSCA 139 at 56
[8](supra) at 547
[9](1964) VR 788 at 793
[10](supra) at 547
80 Further in Vellar,[11] the Court noted it did not follow from the reasoning in Brisbane South Regional Health Authority v Taylor:[12]
“… that substantial injustice will necessarily flow from the loss of a defence that a cause of action is statute-barred. While such a loss established prima facie prejudice where no specific prejudice was demonstrated and a fair trial remains possible, in the context of an application for leave to appeal, substantial injustice may not be made out.”
[11]Vellar v Spandideas (supra) at 56
[12]supra
81 To succeed in her application the plaintiff must persuade the Court it is just and reasonable to make the order extending time – see Bell v SPC Ltd.[13] The onus is “fairly heavy” – see Richards v State of Victoria & Ors[14] per Gillard J.
[13](1989) VR 170 at 174
[14][2001] VSC 52 at 7 and 11
82 In Tsiadis v Patterson,[15] Buchanan JA described the approach which should be taken by the Court in determining an application for an extension of time under s23A of the former Act (a provision similar to the present section) in the following terms:
“The matters which the Court is required by s 23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the court that it is just and reasonable to extend the limitation period. … .”
[15](supra) at 33
83 Considering then the relevant factors under s27L:
(a) The Length and Reasons for the Delay
The Starting Date
84 Counsel for the defendant submitted that the length of delay in accordance with the established authority started with the accrual of the cause of action, and that the plaintiff’s knowledge of the date of accrual was not relevant.
85 In this regard, reliance was placed on the decisions of Koumorou v State of Victoria[16] and Repco Corporation Ltd v Scardamaglia[17] where the Court held that the delay referred in s23A(3) of the former Act was the delay between the accrual of the cause of action and the making of an application for an extension of time.
[16][1991] 2 VR 265
[17][1996] 1 VR 7
86 In Donmez v Neissa,[18] Kaye J adopted this approach.
[18][2012] VSC 73 at 66
87 Counsel for the defendant submitted, in this case, Professor Rait’s view was that the cause of action accrued prior to 2000, as, had treatment for the condition been instituted prior to that date, it probably would have led to a better outcome. The defendant last examined the plaintiff in April 1999 and that was the latest date on which it was said against the defendant that he was negligent.
88 It was submitted it matters not at all that the plaintiff was unaware of it for these purposes – see Koumorou v State of Victoria,[19] per Brooking J.
[19]supra
89 In that case, his Honour said expressly, delay within the meaning of s23A (as it was) is not to do with people not taking steps when they should do, it is to do with nothing more than the effluxion of time. Thus, if time starts against the cause of action when it accrues, and in this case that is 2000 according to Professor Rait, the time frame ends in 2010 when the proceedings are ultimately served.
90 Counsel for the plaintiff submitted time ran from the discoverable date, relying on Williams J’s comments in Callan v Healthscope Ltd[20] that it was common ground that the total period of delay between the date the cause of action was discoverable and the date of the application for extension should be taken into account.
[20][2008] VSC 88 at 68
91 In Delai v Western District Health Service & Anor,[21] Beach J considered this issue but found it unnecessary in that case to resolve it definitively, commenting that there were some grounds for contending the delay was from the date of discoverability, noting that factor was not contained in the former section but favouring the conclusion that the delay was from the date of accrual, noting that there were powerful arguments in Koumorou,[22] to this effect.
[21]supra
[22]Koumorou v State of Victoria (supra)
92 Further, Beach J noted, performing the synthesis required in Delai[23] yielded the same answer irrespective of whether the delay from the accrual of the cause of action was considered on the one hand or merely the discoverability issue.
[23]supra
93 The issue is one which Beach J noted one day someone would have to resolve, and the matter was not argued in any detail in that case. The issue is therefore open.
94 Counsel for the plaintiff submitted if the accrual date is relevant, the explanation for the delay between 1999 and 2005 was because the cause of action was not discoverable and that explanation was so powerful as to render of no significance the distinction between the accrual and discoverability dates.
95 Counsel for the defendant, noting no diagnosis was made in the period 1999-2005, conceded that it might be thought there were good reasons for the delay in that period and no further submissions were made on this point.
96 In any event, the discoverable date itself is in issue – whether it is May or December 2005.
97 Whilst in opening, counsel for the plaintiff conceded the discoverable date may be May, in closing, he submitted December was the appropriate date.
98 Although there had been some discussion in May with Dr Nagle about whether proceedings should be brought, it was submitted that discussion “was shut down pretty quickly”.
99 It was submitted the question was when the plaintiff knew or ought to have become aware there was fault on the part of the defendant, rather than just a failure to do something. More than a causal connection was required.
100 Whilst the plaintiff conceded in her viva voce evidence that in May 2005 she knew she had been let down by the defendant, it was submitted that did not equate with her being aware the situation was the defendant’s fault in the common sense use of the word.
101 It was conceded that following the December 2005 conversation with Professor Rait, the plaintiff knew or ought to have known there was fault on the part of the defendant for failing to carry out the test. It was also conceded the other relevant factors under s27F were present in May – namely that personal injury had occurred and that injury was sufficiently serious to justify the bringing of an action on the cause of action.
102 Counsel for the defendant submitted the discoverable date was 9 May 2005. Reference was made to examinations by Mr Thompson in Moe in March and April 2005. He undertook the test that led to the diagnosis of the condition. He referred the plaintiff to Dr Nagle, who confirmed the diagnosis on 9 May 2005.
103 It was submitted it was evident there was a discussion shortly thereafter between the plaintiff and her husband as to the possible commencement of legal proceedings.
104 It was submitted that by 9 May 2005, or shortly thereafter, the plaintiff knew her injury could have been detected earlier had testing been undertaken by the defendant. By that date, the plaintiff had attributed blame for her situation to the defendant, a concept associated with fault, being part of the definition of discoverability under ss(1)(b). Her subjective belief was made out in May 2005. Imputed knowledge is enough.
105 Counsel for the defendant pointed out that the plaintiff’s counsel correctly referred to Spandideas v Vellar[24] in which Kaye J concluded that fault meant a defendant doing something which he should not have done or which he should have done differently, or failing to do something which he or she should have done.
[24](2008) VSC 198
106 The “reasonable step,” had it been required, was simply to ask Dr Nagle about the test, but that was not required because the plaintiff knew about it.
107 Taking into account the evidence of the plaintiff’s discussion with Dr Nagle in May 2005, in my view, that was the time at which the cause of action was discoverable and the plaintiff knew or ought to have known the condition was the fault of the defendant. However, whether that is the correct date or the cause of action became discoverable at the end of 2005 matters little, as the plaintiff still requires an extension of time to bring these proceedings.
108 As counsel for the defendant conceded, the notion of discoverability is not as crucial in this case as in some cases, because it is conceded the date is such that the plaintiff needs an extension of time, as on either date, the proceeding is not within time.
109 Both counsel relied upon Kaye J’s comments in Donmez[25] as to the time when the delay ends.
[25]Donmez v Neissa (supra)
110 Whilst there was some argument historically that the period of delay did not end with the commencement of proceedings but the application to extend time, counsel for the defendant submitted really the commencement of proceedings is the relevant date. Counsel submitted in this case, that was in reality the date of the service of the writ in November 2010 – ten years after the accrual of the cause of action in 2000. It was submitted that was a long period of time, particularly in a personal injuries case.
111 Counsel for the plaintiff submitted the delay under consideration is the delay prior to issue in November 2009, with the qualification that the Court is entitled to take into account subsequent delays. It was conceded the delay between filing and service of the writ a year later was unexplained and something I could have regard to.
112 In terms of this later delay, counsel for the defendant submitted it was not a complete answer during that time that the matters were in the hands of the solicitors – see Tavsanli v Philip Morris (Australia) Ltd[26] and Repco.[27]
[26](unreported, VSC, 286 of 1989) (BC8900545) per Young CJ, delivered 18 September 1989, at page 4
[27]Repco Corporation Ltd v Scardamaglia (supra)
113 Counsel for the plaintiff submitted in this case, the delay was from the discoverable date at the end of 2005 through to when proceedings were issued in 2009. It was conceded the length of delay is not insignificant but it was not “years and years and years”. It exceeded, just, in a sense, the limitation period.
114 In my view, the length of the delay extends from the discoverable date of May 2005 until the issue of the writ in November 2009 – a significant delay, as counsel for the plaintiff ultimately conceded. If the correct “end date” is service of the writ a year later, carrying out the synthesising approach I am required to undertake, this additional delay is not sufficient to alter my ultimate determination of this application.
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant
115 The defendant has not filed an affidavit deposing to any particular prejudice to him in the conduct of his defence in the action.
116 Counsel for the defendant relied upon a number of authorities in terms of the question of prejudice.
117 Prejudice under the section need not be caused by the delay complained of but need only come about by reason of the lapse of time involved in the period of delay – see Lord v Australian Safeway Stores Pty Ltd.[28]
[28][1996] 1 VR 614 at 622
118 The section requires the Court to have regard not only to the established prejudice but also the extent to which there is likely to be prejudice – see Tsiadis v Patterson.[29] Further, Buchanan J’s comments in that case were relied upon as to the synthesising approach to be taken of the competing considerations so as to arrive at a conclusion that takes account of them all, bearing in mind that the applicant bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.
[29]supra
119 Mere delay itself, when it is inordinate, may be taken as evidence of prejudice – see Myer Melbourne Ltd v Hammond;[30] Ford Motor Company Australia Ltd v Kulic;[31] Brisbane South Regional Health Authority v Taylor[32] and Tavsanli v Philip Morris (Australia) Ltd.[33]
[30][1984] VR 40 at 49
[31][1988] VR 152 at 157
[32]supra
[33]supra
120 A delay in excess of nine years, between 2000 and 2010, in the prosecution of a personal injury claim is inordinate – see Ford Motor Company Australia Ltd v Kulic.[34] This situation gives rise to presumptive prejudice.
[34]supra
121 In the present case, it is not asserted that there is specific prejudice. It is presumed to be prejudicial to the defendant if the delay is inordinate.
122 It was submitted that it is not just a question of the availability of evidence and factors relating to this particular case and whether expert evidence is still obtainable. The prejudice lies, at least in part, in a defendant having hanging over his head for a period of excess of nine years, the existence of a potential legal claim, and is entitled to get on with his life with some certainty – see Brisbane South Regional Health Authority v Taylor[35] per Dawson J at 544, per Toohey and Gummow JJ at 546 and 547, and per McHugh J at pages 551-555, especially 551.
[35]supra
123 Counsel for the plaintiff submitted, in the present application, there was no specific prejudice where the defendant said he had no recollection of relevant events. The notes are available[36] and they are not indecipherable to someone who is looking at them. The existence of the notes is a relevant factor that can be relied on to reduce the scope of the prejudice.[37]
[36]See Exhibit AB14
[37]See Callan v Healthscope (supra) at 96
124 Further, there was no suggestion that witnesses were unavailable.
125 The case is not one where the plaintiff relies on an oral history allegedly given but not recorded, or relies on an alleged failure to warn or alleges negligent oral advice.
126 I accept it is unlikely that there will be any factual dispute as to what happened at the plaintiff’s attendances with the defendant. The defendant has his clinical file and detailed those attendances in his Answers to Interrogatories, and also noted in his file the tests he performed and the results thereof.
127 I accept the narrow question at trial is whether an optometrist acting reasonably would have ordered the test, as Professor Rait says, in light of the plaintiff’s age and family history, or whether the defendant is correct, as he alleges in paragraph 6B of his Amended Defence, that he was not required to do so.
128 It was further submitted the scope of the proceeding was almost designed to reduce prejudice because it was such a confined issue about whether it was reasonable or not for the defendant to perform the test in the circumstances. It was submitted by the parties everyone is at least as well able to grapple with that issue now as they had been at any other time.
129 It was submitted, as s27K(2) makes it clear, it is a matter of synthesising all the different factors to decide whether it is just and reasonable to do so. The lack of any significant prejudice was hugely significant in deciding whether it was just and reasonable.
130 Although McHugh J set out in Brisbane South Regional Health Authority v Taylor[38] there was a good reason for the existence of limitation periods, his Honour also described it was a balancing notion from case to case, and it was submitted, in the particular circumstances of this case, it is more in the interests of justice to allow someone to reinstate a lost action and create some difficulty for the defendant than to shut out someone who seems to have a good cause of action.
[38](supra)
131 It was submitted there was still some obligation on the defendant to identify the general prejudice that is said to have been done.
132 Counsel for the plaintiff also referred to Tsiadis v Patterson[39] where his Honour stated prejudice to the potential defendant is to be considered together with all the circumstances of the case, although in a particular case it may be very significant if it is so severe as to prejudice a fair trial of the applicant’s claim.
[39](supra) at 31
133 I accept the submission of counsel for the plaintiff that it was hard to think of another case where there was less prejudice to a defendant. There was conceded there was perhaps just the presumed prejudice because of the effluxion of time which, it was conceded, was significant.
Other Factors
134 Paragraphs (c) and (d) are not relevant to the present application.
135 Paragraph (e) – the time within which the cause of action was discoverable – has already been addressed.
136 Putting paragraphs (f) and (g) together, the question really is, what has the plaintiff done; has she acted promptly and reasonably once the cause of action was effectively discoverable?
137 In deciding this issue, I must take into account the plaintiff’s particular circumstances, problems and her explanation for the delay.
138 I accept counsel for the plaintiff’s submission that the plaintiff’s explanation for delay is a good one. I found her to be an honest, credible witness who made the appropriate concessions.
139 I accept, as the plaintiff deposed, that she could not bring herself to deal with potential litigation because of her emotional state, her understandable concerns abut her loss of vision and her previous unpleasant and expensive experiences with the legal system. She was not functioning at work, having to stop for a year and a half, and the stress did not go away until she was able to put work behind her.
140 Counsel for the defendant did not address the factors set out in ss(2)(b) – the nature and extent of the plaintiff’s loss; and (c), the nature of the defendant’s conduct, save to say that there was nothing particular about this case that required special consideration being given to those matters.
141 In reply, counsel for the plaintiff however submitted that the plaintiff in this case had a real problem and it is more likely to be just and reasonable to extend time than in circumstances where a person had only a trivial problem.
142 In terms of the merits of the case, the plaintiff deposed she continues to suffer from the effects of loss of vision including loss of capacity to work and mobility problems, causing her to walk into things and fall over and hurt herself. She has problems driving other than in the local area.
143 Further, the plaintiff is still troubled by sleep disturbance. She gets flustered and anxious and has trouble with thinking clearly and finds it hard to solve practical problems. She has problems with memory and concentration and has trouble finding things which may be due to her reduced vision or concentration.
144 There is also expert evidence available from Professor Rait supporting the plaintiff’s potential claim. In substance, his three reports set out that he considered the plaintiff has normal tension glaucoma; she has lost fifty per cent of her visual field; that normal tension glaucoma is the “sneak thief”, the detection of which depends on a preparedness to perform the test; glaucoma probably was present by 1993 or at least 1997 (eight years before diagnosis), and that, had it been picked up and treated from then, the plaintiff would probably be better off now.
Conclusion
145 Balancing the considerations under s27L, in my view, it is just and reasonable to make an order in favour of the plaintiff extending the period of limitation applicable to the cause of action pleaded in the plaintiff’s Statement of Claim to 17 November 2009.
146 The reason for delay was based on the plaintiff’s emotional state, her failing vision and her previous difficulties coping with other litigation. Whilst the delay is significant, there is not likely to be prejudice to the defendant other than the presumed prejudice because of the effluxion of time.
147 In those circumstances, it is just and reasonable to extend the period of limitation applicable to the plaintiff’s cause of action.
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