Jones v Royal Hospital for Women

[2001] NSWCA 410

CITATION:	Jones v Royal Hospital for Women [2001] NSWCA 410
FILE NUMBER(S):	CA DC 4172 of 1993; CA 40498 of 1999
HEARING DATE(S):	29/10/01
JUDGMENT DATE:	21 November 2001
PARTIES :	Julie Jones (Appellant) Royal Hospital for Women (First Respondent) Dr Zipser (Second Respondent)
JUDGMENT OF:	Sheller JA at 1; Giles JA at 2; Mathews AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	4172/93
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL:	M Williams QC (Appellant) J Machonachie QC (Respondent)
SOLICITORS:	J Biady & Associates (Appellant) GIO Law Department (Respondents)
CATCHWORDS:	LIMITATIONS - appellant paraplegic since birth 38 years ago - claim against hospital where she was born and doctor who conducted delivery - 8 years since proceedings commenced - some medical records and potential witnesses apparently not available - limitation period not extended.
LEGISLATION CITED:	Limitation Act 1969, s 60
CASES CITED:	Barker v Wingo (1972) 407 US 514 at 532 Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 at 551
DECISION:	Appeal dismissed with costs.

- 22 -THE SUPREME COURT

CA 40498/99
SHELLER JA
GILES JA
MATHEWS AJA

21 November 2001

Julie Jones v Royal Hospital for Women

1    SHELLER JA: I agree with Mathews AJA.

2    GILES JA: I agree with Mathews AJA.

3    MATHEWS AJA: This is an appeal against a District Court judge’s refusal to extend the limitation period in which the appellant can bring proceedings for personal injuries sustained when she was born, 38 years ago. It is the second such appeal to this Court. Another District Court judge’s refusal was the subject of an earlier appeal. That appeal was allowed on the basis that fresh evidence was available, and the matter was remitted for further determination by the District Court. On 4 June 1999 the application for an extension of time was again refused. The appellant appeals, by leave, from that decision. The sole issue on appeal is whether the discretion under s 60G of the Limitation Act 1969 (the Act) was correctly exercised.

Statutory Framework

4 It is common ground that, as the appellant was injured at birth, the running of the limitation period was suspended until she turned 18, on 16 October 1981. The 6 year limitation period therefore expired on 16 October 1987. In seeking an extension of this period she has relied entirely upon s 60G(2) and s 60I. Those sections provide as follows:-

60G Ordinary action (including surviving action )
…
(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.
60I Matters to be considered by court
(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii).

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

5    The plaintiff was born on 16 October 1963 at the Royal Hospital for Women (“the Hospital”). Doctor Zipser was, according to the records, the doctor who attended her birth. The birth was not an easy one. Since the 30th week of pregnancy the presentation had been persistently breech. The medical records made at the time of birth contained the following note: -

“Moderate difficulty with shoulders requiring three turns of Lovsett technique each way.”

6    Shortly after birth the appellant was recorded as having “poor agpar”. She required resuscitation which was performed successfully by a Dr O’Sullivan. However, neurological abnormalities were subsequently observed, and not long afterwards she was diagnosed with paraplegia. It was recognised at the time that the paraplegia was traumatic in origin, and was almost certainly sustained during the course of the appellant’s birth extraction.

7    In 1983, and again in 1986, the appellant was injured in two separate motor vehicle accidents. She commenced proceedings seeking damages for personal injuries in relation to both incidents, initially through the Legal Aid Commission, and later through her present solicitors, J. Biady and Associates. The appellant conceded in cross-examination that at about that time she knew that she had a potential case against the Hospital and/or against her treating obstetrician in relation to her paraplegia.

8    In October 1991 the appellant first instructed Mr Biady to act for her in relation to her birth injury. On 31 August 1993 a statement of claim was issued on her behalf in the Sydney District Court, claiming damages for negligence arising out of the circumstances surrounding her birth. There were four defendants at that time. In addition to the Hospital and Doctor Zipser, two other doctors was named as defendants, one of them being Dr O’Sullivan. Neither of these two doctors was served with the statement of claim, and the proceedings were subsequently discontinued against them.

9 On the same date, 31 August 1993, the appellant filed a notice of motion seeking an extension of time under S 60G and 60I of the Act. The hearing of this application was delayed for over four years, until October 1997. In the meantime, on 16 February 1995, the appellant’s solicitors received a report from Dr E. L. G. Beavis (now deceased) who expressed the view that during the birth of the appellant “the foetus experienced undue physical stress during the delivery of the shoulders”, and that “this caused the spinal cord injury”. Dr Beavis considered that, “being a breech delivery, it should have been conducted by a senior and experienced member of the Hospital staff.” He noted that Dr Zipser was a junior resident, who was so inexperienced that he was unable to perform a pudendal nerve block on the appellant’s mother at the beginning of the delivery. He expressed the view that Dr Zipser conducted the confinement with undue vigour, and that it was the responsibility of the Hospital to have provided an obstetrician “with sufficient skills to have been able to conduct what should have been a straight forward operative procedure without irreparably injuring the infant to a severe degree.”

10 The hearing of the application took place on 7 October 1997 before Balla ADCJ. The appellant was cross-examined and numerous medical records were tendered. It was contended on the appellant’s behalf that until receiving Dr Beavis’ report, the appellant was unaware of the connection between her injury and the defendants’ acts or omissions, thus bringing her within the terms of s 60I(a)(iii). In a judgment delivered on 5 November 1997, Balla ADCJ accepted this submission. However, she found that it would not be just and reasonable for the limitation period to be extended, and accordingly refused the application.

11    The appellant challenged this finding on appeal. The first appeal was heard in March 1998. During argument, the importance of the availability of Dr O’Sullivan to give evidence became apparent. At that time it was believed that Dr O’Sullivan was probably deceased. However, further enquiries after the hearing and before judgment led to later affidavits being filed which established that Dr O’Sullivan had been located, that he had worked at the Hospital during 1963 and that he recalled that Dr Zipser was also there at that time. In the opinion of Mason P, with whom Handley JA and Beazley JA agreed, this was determinative of the appeal. His Honour considered that the matter should be remitted “for a fresh determination in the light of Dr O’Sullivan’s evidence touching the ultimate issue as well as the immediate issue of the fairness of a trial at this late stage.”

12 On remittal of the matter, the application was heard by Freeman DCJ. Both parties accepted that Balla ADCJ’s findings relating to s 601(a)(iii) should stand. The issue before his Honour related solely to the exercise of the discretion under s 60G. No additional evidence was placed before the court on that issue. In particular, no evidence was adduced by either side to indicate whether Dr O’Sullivan was in a position to give any meaningful evidence in the case, given that it was then 36 years since the events in question.

13    The appellant’s counsel sought to argue before Freeman DCJ that the appellant should not be expected to adduce evidence from Dr O’Sullivan because, having himself originally been a defendant, he was effectively in the camp of the remaining defendants. His Honour did not accept this submission. He considered that the issue was not whether Dr O’Sullivan’s evidence would be favourable to one side or the other, but whether he was in a position to contribute to the evidence in any meaningful way.

14    One issue his Honour considered that Dr O’Sullivan might have been able to clarify was Dr Zipser’s status within the Hospital hierarchy. Dr Zipser was variously described as a junior resident and a senior resident medical officer in the Hospital records. Dr Beavis had assumed that he was inexperienced because he had, as Dr Beavis believed, been unable to perform a pudendal block, this being a relatively simple procedure. However, the parties now concede that Dr Zipser did in fact perform this procedure, thus undermining the basis of Dr Beavis’ assumptions as to his lack of experience.

15    Freeman DCJ also commented upon the fact that Dr Beavis relied on a report written in 1970, rather than on contemporaneous records. For these reasons his Honour considered Dr Beavis’ evidence to be vulnerable, and his opinion subject to doubt. Taking all this into account, his Honour did not believe that the appellant presented a strong prima facie case.

16    Freeman DCJ also referred to the extent of the appellant’s knowledge and understanding of her position before 1991 or 1992. This, as he observed, was considerable, notwithstanding that it fell short of knowing the precise acts or omissions upon which reliance is now placed. Having regard to this, to the lack of strength in the appellant’s case, to the length of time that had expired, and the appellant’s failure to indicate what, if any, contribution could be made by Dr O’Sullivan, his Honour was not persuaded that it would be just and reasonable for the extension of time to be granted. The application was therefore refused.

17    On 13 March 2000, the appellant was given leave to appeal against Freeman DCJ’s decision. For some unexplained reason, a further 18 months ensued before the matter came for hearing. By the time we heard the matter it was almost exactly 38 years since the appellant’s birth.

The Appeal

18    At the outset of the appeal, Mr M. Williams, who had recently taken over the carriage of the matter for the appellant, sought to present further evidence in the form of an affidavit of James Biardy, sworn on 16 May 2001. This related to a telephone conversation with Dr O’Sullivan some time previously. No affidavit was available, as required by the Supreme Court Rules (Part 51, Division 2, Rule 19), to indicate the grounds upon which the evidence should be admitted, or the reason for the lateness of the application. Mr Maconachie QC, who appeared for the respondents, opposed the tender. He pointed out that the respondents, who had known of the affidavit for some time, had indicated in their submissions, over two months earlier, that any application to adduce fresh evidence would be resisted.

19    Mr Maconachie submitted that the appellant’s failure to call evidence before Freeman DCJ as to the contribution, if any, that Dr O’Sullivan might make to the proceedings, was the result of a tactical decision on the part of her then lawyers. This may well be correct, but there is no way we are to know with certainty. In the absence of any evidence on the matter, we are unable to determine whether the belated presentation of this material was the result of deliberate choice or of some oversight on the part of the appellant’s representatives.

20    According to Mr Williams, it was a comment made from the bench during the application for leave to appeal which brought home to the appellant’s representatives the importance of ascertaining whether Dr O’Sullivan could contribute to the evidence in the case. However, this was over 18 months ago. The appellant’s representatives had more than ample time to make their enquiries and present their evidence in accordance with the rules. Mr Williams was unable to offer any explanation for their failure to do so.

21    For all these reasons we declined Mr Williams’ application for an adjournment so that affidavits could be filed in compliance with the Rules. We similarly declined his application that we take evidence viva voce on the matter. Accordingly the appeal continued on the basis of the material that was before Freeman DCJ.

22    I turn to the substance of the appeal. The notice of appeal specified 12 grounds, a number of which raised essentially identical matters. They were reduced, in the appellant’s written submissions, to 5 propositions. However, there was some repetition even in the written submissions. In essence, the appellant’s submissions can be encapsulated into the following propositions.

1. That his Honour erred in his consideration of the evidence relating to prejudice (grounds 4, 6, 7 and 10);
2. That his Honour erroneously dealt with the evidence regarding Dr O’Sullivan (ground 2, 3 and 5);
3. That his Honour erred in his assessment as to the lack of strength of the appellant’s case (ground 9).

A fourth proposition, namely, that his Honour erred by not taking into account the extent of the appellant’s injuries or disabilities (ground 8) was, for good reason, not seriously pressed by Mr Williams. There is no doubt that the appellant suffers serious and permanent disabilities. This makes her case all the sadder. But the seriousness of her injuries is not be a relevant factor in determining whether the limitation period should be extended in her case.

23    I shall discuss the remaining grounds of appeal in the above sequence, although this was not the order in which they were advanced by Mr Williams.

His Honour’s Consideration of Prejudice

24    The respondent had previously filed an affidavit of Stanley Goldstein, sworn on 30 June 1995, as to the availability of relevant evidence. Dr Goldstein was at that time the Director of Medical Services of the Hospital. He had made enquiries as to the identity of hospital staff who might have been involved with the plaintiff’s birth in 1963. Five staff members were able to be identified by signature. In addition to Dr Zipser and Dr O’Sullivan, there was a trainee midwife, Ms MacDougall, and a Sister Pearce and Sister Davies. None of these was still employed by the Hospital, and Dr Goldstein’s enquiries had failed to reveal any record of their whereabouts. His enquiries as to the whereabouts of the staff rosters of October 1963 had similarly proved fruitless. Finally, Dr Goldstein referred to the Hospital clinical records in the following terms:

“My enquiries in relation to the clinical records regarding the Plaintiff’s birth in 1963 have revealed that all of the original records, except for some out-patient records, were, at some time in the past that I have been unable to determine, placed into microfiche form before being destroyed. The records therefore now only exist in microfiche form however the whereabouts of the microfiche form is unknown. Photocopies of the microfiche records have been kept however they are difficult to read and some pages are completely illegible. A copy of the photocopy record is annexed hereto and marked with the letter ‘C’.”

25    Dr Goldstein’s description of the records is accurate. Most pages are decipherable, albeit with difficulty in some cases. However, a few pages are entirely illegible.

26    Mr Maconachie also relied upon the following portion of Dr Beavis’ report dated 16 February 1995: -

“I am unable to identify any record of the delivery made by the resident (Dr. Zipser) who conducted it. The labour record summary (6) states that a Dr. MacDougall attended as an anaesthetist, and that the anaesthetic was a pudendal nerve block supplemented by the inhalation of a mixture of nitrous oxide and oxygen. The after coming head was delivered with forceps. The infant chart (8) describes delivery as a ‘Breech. Forceps to a/c head. Smooth well controlled delivery’.
These observations are not consistent with a detailed summary of 29 June 1970 (22, 23). This contains information not included in the other records, such as the pelvic measurements obtained at the time of assessment regarding the optimal mode of delivery, and information that the presentation had been persistently breech since the 30th week of pregnancy. It was dictated by another resident, and forwarded to the Medical Superintendent of the Cleaveland Hospital & Clinic over the name of E. Bosch, M.R.C.O.G., Actg Medical Superintendent.
I consider that this report is the most accurate and informative document concerning the delivery which is available.”

27    It is now known that Dr Beavis was mistaken in his assumption that it was Dr MacDougall who performed pudendal block. In fact this was performed by Dr Zipser himself. This is relevant to another issue and will be discussed later. The use which Mr Maconachie seeks to make of this material for present purposes is to show that even back in 1995 the appellant’s own doctor was reduced to relying upon a report made in 1970, seven years after the event, because it contained more information than could be discerned from other available records.

28    As I understand it, the appellant concedes that there might be deficiencies in the available records, but says that the respondents have failed to show that this would be productive of prejudice, a matter on which the respondents bear the evidential onus of proof. Moreover, Freeman DCJ failed to mention the fact that Dr Zipser was still available, this being a highly relevant factor, the appellant says, in assessing the possible prejudice to the respondent.

29    The following passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 at 551 is relevant here:-

“Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”

30    With this background I return to Freeman DCJ’s judgment, so far as it relates to the issue of prejudice. His Honour made the following observations:-

“The defendants through counsel Maconachie QC pointed to the extreme delay. T is now 36 years since the plaintiff’s birth. It is not to the point to say that the defendants would have been disadvantaged even if the plaintiff had taken her action before the limitation date, that is as late as 1997.
The only onus on the defendant (which is otherwise entitled to rely on the provisions and purpose of the Limitation Act) is to raise evidence of actual prejudice lest ‘it then not be heard to complain if the Court concludes that no particular prejudice over and beyond the generalities to have been established by it’. (Kirby J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
The defendant accepts that its efforts at ascertaining the availability of witnesses was not, perhaps, enough to satisfy Mason P but nonetheless relies on the fact that some witnesses are not available and that parts of the records are illegible. It is not clear whether the records extant are themselves complete. This is said to be, possibly, an example of that hidden prejudice to which reference is made by McHugh J in Taylor (supra). It is certainly likely that this case will be decided on less evidence than would have been available to the parties at the time of the occurrence.”

31    His Honour’s comments, in my view, are both apposite and accurate. If anything, they understate the respondent’s position. Given the delay of 36 (now 38) years, the gap in the written records, and the apparent unavailability of a number of potential witnesses, it would be very difficult indeed to conclude that no prejudice would be suffered if the matter were to proceed to hearing at this stage.

32    It was suggested in the appellant’s written submissions that his Honour fundamentally misstated the test in saying that “once actual prejudice has been shown, the general rule that actions should be commenced within time should prevail.” However, I am unable to find the source of this quotation. It is not to be found in his Honour’s reasons for judgment.

33    In my view his Honour did not err in the way in which he dealt with the evidence of prejudice.

The Position of Doctor O’Sullivan

34    Three of the grounds of appeal relate to the manner in which his Honour dealt with the evidence, or lack of it, relating to Dr O’Sullivan. It was known that the appellant was resuscitated by Dr O’Sullivan approximately 20 minutes after her birth. Whether or not he was present during the birth process was not known. Even if he was not, there were a number of matters, including the status of Dr Zipser within the Hospital system, upon which he might have been able to throw further light. It was for this reason that the previous Court of Appeal remitted the matter for further hearing when it became apparent that Dr O’Sullivan was not, as previously thought, deceased, but was living in Sydney and therefore available to the parties. However, as indicated earlier, at the hearing before Freeman DCJ, neither party sought to adduce any further evidence from Dr O’Sullivan. The appellant’s representatives argued that any evidence from Dr O’Sullivan should be adduced by the respondents, as he was effectively in their camp. Freeman DCJ, in rejecting this submission, observed that the issue was not whether Dr O’Sullivan’s evidence would assist one side or the other, but whether he would be able to contribute to the evidence in the case.

35    In my view his Honour’s approach was entirely correct. Given that 36 years had then elapsed since the plaintiff’s birth, the mere fact that Dr O’Sullivan had been located was of itself a neutral matter. It opened up the possibility that he might be able to contribute to the proceedings in a meaningful way, hence the remittal to the District Court. But in the absence of any further evidence as to the contribution, if any, that Dr O’Sullivan might be able to make to the proceedings, the fact that he was alive and potentially available remained a neutral fact. Ultimately it was for the appellant to show that a fair trial was possible, notwithstanding the time that had elapsed. In the circumstances, she was unable to call on Dr O’Sullivan’s availability as in any way furthering that proposition.

36    In my view his Honour made no errors in the manner in which he dealt with this issue.

Strength of the Appellant’s Case

37    The appellant submits that the exercise of the discretion miscarried in this case as it was based, at least in part, upon his Honour’s erroneous conclusion that the appellant’s case was lacking in strength.

38    His Honour, in his judgment, referred to the appellant’s assertion, that it was, inter alia, because of Dr Zipser’s inexperience that she sustained injury at birth. He went on to refer to the equivocal status of Dr Zipser, being described in the Hospital Year Book as both a Junior Resident and a Senior Resident. He also referred to Dr Beavis’ mistaken assumption that Dr Zipser was too inexperienced to perform a pudendal block. His Honour continued in the following terms: -

“Dr Beavis also relies on a report written in 1970 rather than on the contemporaneous records. His evidence is vulnerable and his opinion, accordingly, subject to some doubt, just on the face of the known facts concerning the procedure undertaken by Dr Zipser. I do not agree then, that the plaintiff presents a strong prima facie case. The viability of her cause of action is a relevant factor as is, of course, her extensive (although incomplete) knowledge prior to the expiration of the limitation period in 1987. (Drayton Coal Pty Limited v Drain (Court of Appeal, 22 August 1995)).”

39    Mr Williams referred us to Dr Beavis’ report, dated 16 February 1995. It is to be noted that this is the sole report relied upon by the appellant at this stage in order to establish a prima facie case of negligence on the part of the respondents. Dr Beavis concluded that the appellant sustained injury due to unphysiological forces being imposed during the process of her delivery. These forces were imposed when Dr Zipser, according to the Hospital records, executed “three turns in the Lovsett technique each way”. Dr Beavis commented that this manoeuvre, whilst being necessary to achieve the descent of the shoulders in a difficult birth, imposes unphysiological forces upon the foetus. Dr Beavis made the following comment: -

“The need for 3 turns before the shoulders were delivered, by a junior resident, without supervision, followed by an injury to the spinal cord, in my opinion clearly indicates that the fetus (sic) experienced undue physical stress during the delivery of the shoulders, and that this caused the spinal cord injury.”

40    Dr Beavis went on to state that a senior and experienced member of the Hospital medical staff should conduct breech deliveries. He went on to note that Dr Zipser was a junior resident medical officer, who was apparently lacking in relevant experience. (As we now know, Dr Beavis was relying on an incorrect assumption on these matters). He concluded in the following terms: -

“I therefore consider that Dr Zipser conducted the confinement with undue vigour, to a degree which resulted in a permanent severe injury.
In my opinion it was clearly the responsibility of the Hospital to have provided an obstetrician with sufficient skills to have been able to conduct what should have been a straightforward operative procedure without irreparably injuring the infant to a severe degree.”

41    Mr Williams pointed out that there were two heads of negligence available to the appellant according to Dr Beavis’ report. The first related to Dr Zipser’s lack of training and experience. The second was that Dr Zipser conducted the delivery “with undue vigour”. He conceded that material had been adduced which reduced the force of Dr Beavis’ opinions relating to Dr Zipser’s qualifications. However, he said that the second ground, namely that Dr Zipser exerted undue vigour during the birth, was an independent and strong ground. It was not adverted to at all by Freeman DCJ. The existence of this ground, it was submitted, undermined his Honour’s conclusion that the appellant’s case lacked strength.

42    Had Dr Beavis’ mistaken assumptions as to the level of Dr Zipser’s experience been the only basis upon which his opinions were subject to question, there would have been some force in this submission. But there was a further basis upon which Dr Beavis’ opinions were open to question. This related to the material upon which his report was based. It is trite to say that an expert opinion is only as good as the material upon which it is based. Dr Beavis’ opinion was based upon a report made in 1970 rather than on contemporaneous records. He regarded the report as providing the most accurate information then available. His Honour commented upon this and went on to say that Dr Beavis’ evidence was vulnerable, and his opinion therefore subject to “some doubt”. It was on this basis that his Honour found that the appellant did not present a strong prima facie case.

43    In my view his Honour’s reservations as to Dr Beavis’ opinions were legitimate. It was entirely open to him to conclude, as he did, that the appellant’s case lacked strength.

Conclusion

44    It follows that in my view none of the grounds of appeal have been made out. Freeman DCJ’s discretion did not miscarry and his findings should stand.

45    This case is an extremely sad one. No one likes seeing a person suffering from serious disabilities being deprived by the passage of time from the opportunity of seeking compensation for them. On the other hand, it is very difficult to see how his Honour could have found differently from the way he did, given the time that had elapsed since the appellant’s birth. In one sense, the appellant had already had the benefit of an extension of the normal limitation period, in that it did not commence to run until she reached 18 years. Certainly she could not have commenced proceedings in her own right before then, but proceedings could have been taken on her behalf. The end result was that a great deal of time (24 years) had already elapsed by the time the limitation period expired.

46    It was, according to the evidence, not until the early 1990’s that the appellant learnt all the facts upon which her claim was sought to be based when the present proceedings were commenced in August 1993. The delay of 8 years since that date is, to a very considerable extent, unexplained. We know that there was a 4 year delay before the hearing before Balla ADCJ. There is nothing to indicate that the respondent was responsible for this delay. Indeed, the correspondence between the parties’ legal representatives suggests the contrary. Similarly, there was an unexplained delay of well over 2 years between Freeman DCJ’s decision and the hearing before us. Leave to appeal was granted over 18 months ago. It was the appellant through her representatives, who ultimately bore the responsibility of ensuring that the matter proceeded without undue delay. This has clearly not occurred.

47    The accumulation of all this means that if there were to be a hearing of this matter it would take place close to 40 years after the events in issue in the litigation. Such a delay in a case like this is almost unthinkable.

48    McHugh J in Brisbane South had this to say about limitation periods (at p 551): -

“Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out: -
‘The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.’
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”

49    All the rationales referred to by McHugh J are particularly apposite to the circumstances of this case, given the extreme delay which has occurred. It is almost impossible to conceive of a fair trial being held in the present circumstances, nearly 40 years after the event. I would therefore dismiss the appeal with costs.

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