Kaye, Peter v Department of Human Services

[2010] VCC 120

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES/COMPENSATION

MEDICAL DIVISION

Case No. CI-04-02346

PETER KAYE	Plaintiff
v
DEPARTMENT OF HUMAN SERVICES	First Defendant
ANTHONY BOWEN	Second Defendant
and
THE ROYAL CHILDREN’S HOSPITAL	Third Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	14, 15 and 16 October and 4 December 2009
DATE OF JUDGMENT:	27 January 2010
CASE MAY BE CITED AS:	Kaye, Peter v Department of Human Services & Ors
MEDIUM NEUTRAL CITATION:	[2010] VCC 0120

REASONS FOR JUDGMENT

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Catchwords: LIMITATION OF ACTIONS – Limitation of Actions Act 1958, Part 2A – act or omission occurring before 1 October 2003 in proceedings commenced after 1 October 2003 – date of discoverability – relevance of specific and general prejudice occasioned by delay

– whether just and reasonable to grant extension of time.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Gray	Stynes Dixon
For the Defendants	Ms M A Hartley	Middletons
HIS HONOUR:

1          The plaintiff, who was born on 15 June 1970, has commenced proceedings against the defendants seeking damages for injuries which he alleges were suffered by him by reason of the negligence of the defendants. In the proceedings the plaintiff alleges that the defendants were in breach of the duty of care which they owed to him;

(a)	in providing medical treatment between 1983 and 1986 whilst he was an inpatient at the Parkville Adolescent Unit in the course of managing an anorexic-type disorder which it is alleged by the plaintiff was wrongly diagnosed and inappropriately treated (“the first cause of action”)
(b)	in misdiagnosing and mismanaging the treatment of an injury suffered to the plaintiff’s right knee in or about March 1984 (“the second cause of action”).

2          The defendants deny negligence in the proceeding and plead that the plaintiff is barred from pursuing the proceedings pursuant to the provisions of Part 2A of the Limitation of Actions Act 1958 (“the Act”) and/or s.5 of the Act.

3          The present proceedings were instituted by a Statement of Claim dated 21 May 2004, in which the plaintiff sought relief with respect to the first cause of action. On 23 April 2008, the proceedings were amended so as to introduce a claim with respect to the second cause of action.

4 Having regard to the date upon which the proceedings were instituted, the provisions of s.27E of the Act prescribe the period in which the proceedings against the defendants may be brought[1] as being limited by the expiration of whichever of the following periods is first to expire:

[1] S.27E of the Act prescribes the applicable period as the plaintiff was a minor at the time at which the acts or omissions by the defendants which are relied upon by the plaintiff in each of his causes of action occurred.

“(a)	the period of 6 years from the date on which the cause of action is discoverable by the plaintiff;
(b)	the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.” (the long stop period)

5 By reason of the fact that the plaintiff’s cause of action arose before 21 May 2003, these provisions must be read subject to s.27N(4) of the Act which provides that the provisions of the Act do not operate to extend the limitation period applicable to an act or omission which occurred before May 2003 to a period longer than the period of limitation that would have applied to the cause of action if Part 2 of the Act had not been enacted.

6          It is conceded on behalf of the plaintiff that the provisions of the Act operate to bar the proceedings in respect of both causes of action. In these circumstances an application is made by the plaintiff pursuant to the provisions of s.27K of the Act for an order extending the time for the issuing of the proceedings so as to validate the plaintiff’s Statement of Claim.

The Approach to be Adopted Pursuant to the Provisions of the Act

7 Section 27K of the Act provides that upon an application to extend a period of limitation applicable to a cause of action, the Court may, if it decides that it is just and reasonable to do so, order an extension of the period of limitation applicable to the cause of action for such period as the Court determines.

8 The matters to be considered in exercising the discretion provided to the Court pursuant to s.27K are set out in s.27L, which provides that:

“(1)

… 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.”

9          The relevant legal principles which govern the approach which I should take in considering the present application are as follows:

(i)	the delay contemplated by the Act in s.27L(1)(a) means the period from the accrual of the cause of action to the making of the application for an extension of time;[2]
(ii)	the question posed by s.23K, in conjunction with s.27L of the Act, is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paragraphs (a) to (g) of subsection (1) of s.27L and (a) to (c) of subsection (2) of s.27L, it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them;
(iii)	the plaintiff has the onus of satisfying the Court that it is just and reasonable to extend the limitation period;[3]
(iv)	the plaintiff’s prospect of success in the proposed proceedings is not a relevant factor subject to the Court being satisfied that the plaintiff has a cause of action which does amount to an abuse of process.[4]

[2]             Repco Corporation Ltd v Scardamaglia (1996) 1 VR 7

[3]             Bell v SPC Ltd [1989] VR 170

[4]             Taylor v Western General Hospital [1986] VR 250. I am satisfied that the plaintiff’s allegations against the defendants are such that, if they are accepted without qualification, they would present the defendants with a case to answer and accordingly that the causes of action pleaded against each of the defendants do not amount to an abuse of process.

10        In Brisbane South Regional Health Authority v Taylor,[5] the High Court, in considering an application made under s.31(2) of the Limitations of Actions Act (Qld) 1974, set out the following propositions which were germane to the application made by the plaintiff in that proceeding as follows:

[5] (1996) 186 CLR 541

(i)	When an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension;
(ii)	That as time goes by, relevant evidence is likely to be lost;
(iii)	That 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;
(iv)	That people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them;
(v)	That insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period;
(vi)	That the final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible;
(vii)	that prejudice may be occasioned merely by the effluxion of time;
(viii)	that time may well diminish the significance of a known fact or circumstance and that the longer the delay in commencing a proceeding, the more likely it is that a case will be decided on less evidence than was available to the parties at the time in which the cause of action arose.[6]

[6]             per McHugh J, at page 551, with whom Dawson J agreed

11        In Tsiadis v Patterson,[7] the Court of Appeal distinguished the decision of the High Court in Taylor,[8] on the basis that the Queensland legislation which was applicable to that case did not require the Court to concentrate upon all the circumstances in the case, one of a number being the extent to which, having regard to the delay, there is likely to be prejudice to the proposed defendant.[9] Indeed in Tsiadis, Buchanan JA observed:

“… the Court must synthesize 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. …

[7] (2001) 4 VR 114

[8]             (supra)

[9]             See the judgment of Buchanan JA, at paragraph 31, with whom Ormiston JA agreed

12 In the course of considering generally the circumstances of the case, I find it convenient to deal, firstly, with the relevant matters raised by the provisions of s.27L(1) of the Act.

The Length of and Reasons for the Delay on the Part of the Plaintiff

13        Notwithstanding the concession made by the plaintiff that the limitation period has expired in respect of each of the causes of action, I consider it appropriate, when considering the length of and the reasons for the delay which has occurred in this instance, firstly, to fix the precise time at which the plaintiff’s causes of action became statute barred

14 The plaintiff was born on 15 June 1970. As a minor at the time at which each of the acts or omissions relied upon by him in his proceedings against the defendants occurred, the effect of both of s.27E and s27J of the Act is to prescribe, as the limitation period for the plaintiff’s two causes of action, the period of:

(a)	6 years from the date on which the cause of action is discoverable by the plaintiff through his capable parent or guardian;[10]
(b)	the period of 12 years from the date of the Act or omission alleged to have resulted in the personal injury with which the action is concerned ( the long stop date);

[10] s.27J (3)

whichever is first to expire; with the proviso that the period cannot be
extended beyond the date of the plaintiff’s twenty-fourth birthday.[11]

[11] The operation of the provisions of s.27N(4) of the Act sets the plaintiffs twenty-fourth birthday as the outer limit of the limitation period as this is the limitation date applicable to each of the plaintiffs causes of action but for the operation of Part 2 of the Act.

15        The issue to be determined in these circumstances is whether the relevant limitation period in respect of either of the plaintiff’s causes of action accrued prior to his 24th birthday, namely 15 June 1994.

16 In the course of submissions on behalf of the plaintiff, I was not taken to any evidence which supports the proposition that at any relevant time since he attained the age of eighteen years, the plaintiff was suffering from a legal incapacity as defined by s.27J of the Act which would have operated to suspend the running of the period of limitation. Further, it was not submitted on behalf of the plaintiff that there is any medical evidence to support the proposition that between 15 June 1988[12] and the date upon which each of the causes of action was commenced, the plaintiff’s mental state was such that he was not competent to commence proceedings with respect to either of his causes of action.

[12]           The date of the plaintiff’s 18th birthday.

17 But for the operation of s.27N of the Act, it is arguable that:

(i)	the plaintiff’s first cause of action became statute barred at the latest in 1998;[13]
(ii)	the plaintiff’s second cause of action became statute barred at the latest in 1996.[14]

[13]           Twelve years from the date the treatment the subject of the first cause of action ceased by reason of the expiration of the long stop period.

[14]           Twelve years from the date the treatment the subject of the second cause of action ceased by reason of the expiration of the long stop period.

18        Given the distinction created by the provisions of the Act between the expiry of a limitation period determined on the one hand by the date calculated from the date upon which a cause of action is discoverable, and on the other by reason of the passage of twelve years from any act or omission alleged to have resulted in the injury, with the imposition of an outer limit for the limitation period being set by the date of the plaintiff’s twenty fourth birthday, I am required to make findings as to when the plaintiff’s cause of action with respect to the first and second proceedings was discoverable in order to determine whether the date upon which the plaintiff’s cause of action with respect to each cause of action expired fell on a date prior to his twenty fourth birthday on 15 June 1996.

19        In dealing with this issue, the approach which I am required to take is to determine the time at which the plaintiff, through a capable parent or guardian, knew or ought to have known that he had suffered an injury sufficiently serious to justify the bringing of a proceeding which was caused by:

[15]           Spandideas v Vellar [2008] VSC 198 (6 June 2008), per Kaye J, at paragraph 41.

(i)	an action which the defendants ought not to have performed, or should have performed differently; or
(ii)	by an omission by the defendants to perform an act which they ought to have performed.[15]

20        In fixing this date, I consider it appropriate to employ the date upon which I am satisfied that the plaintiff acquired the requisite knowledge as being the date upon which a competent parent or guardian should have acquired that knowledge.

The Time of Discoverability of the First Cause of Action

21        The plaintiff gave evidence that he was always aware that he was being psychologically traumatised by reason of his treatment by the defendants between 1983 and 1986.[16] That is not to say, however, that the plaintiff immediately appreciated that the trauma to which he was being exposed arose by reason of any act or omission of the defendants and, given his relatively young age at this time, I consider it unlikely that the plaintiff possessed the requisite knowledge in this regard until some time after 1983.

[16]           T 47-T 48

22        The treatment provided to the plaintiff during this period was the subject of a complaint made by him on 23 July 1986. In the course of that complaint, the plaintiff raised issues similar in nature to those the subject of the first cause of action, namely that whilst an inpatient at the Parkville Adolescent Unit:

• he had been kept in solitary confinement;

• he had been denied exercise, showers and contact with other people;

• he had no choice over his food intake and had been required unreasonably to take part in a program designed to increase his weight without appropriate grounds;

• the conduct of the staff at the Unit had been such that it was acting as an impediment to his gaining weight rather than facilitating that process.

23        Whilst it is the plaintiff’s evidence that it was not until the year 2000 that he felt that any long-term injury associated with the medical treatment the subject of the first cause of action was fully discoverable or apparent to him, I am satisfied, having regard to the complaint made by the plaintiff on 23 July 1986, that he had, from that time, a sufficient appreciation of consequences of the activities involved in the breaches which he alleges in his first cause of action against the defendants, to understand that the injury occasioned to him was sufficiently serious to justify the bringing of proceedings against the defendants.

24        I am satisfied that by 23 July 1986, the plaintiff possessed the requisite knowledge that he had suffered injury sufficiently serious to justify the institution of proceedings and in these circumstances, I fix the date of discoverability with respect to the first cause of action as being six years after the date of the plaintiff’s letter of 23 July 1986.

25        Accordingly, I fix the date of discoverability with respect to the plaintiff’s first cause of action as being 23 July 1992.[17] As this date falls prior to the plaintiff attaining the age of twenty four, I fix 23 July 1992 as the limitation date in respect of the first cause of action.

[17] As at 23 July 1986, the plaintiff was sixteen years’ old. Pursuant to s.27E of the Act, the relevant limitation period in these circumstances is six years from the date upon which the cause of action was discoverable.

The Time of Discoverability of the Second Cause of Action

26 Whilst it was the plaintiff’s evidence that he was aware in 1983 that he had suffered an injury to his knee whilst playing football,[18] and that from his very first orthopaedic appointment he was aware that the doctors at The Royal Children’s Hospital had misdiagnosed the condition with which he was presenting,[19] it was his evidence that:

[18]           T 124

[19]           T 124

(i)	it was in the early 1990s that he first became aware of the existence of the condition of osteochondritis dissecans; and
(ii)	that it was in December 1996 that he first obtained medical advice from a doctor that he suffered from that condition.

27         The plaintiff’s evidence that he has never received medical advice that his condition was misdiagnosed is unchallenged.[20] It was his evidence however that in 1996 he was advised by a Dr Bruce Mitchell and Mr Robert Howes that he suffered from the condition of osteochondritis dissecans, and that he tried to tell both Dr Mitchell and Mr Howes at that time, that his condition had been misdiagnosed in 1984.[21]

[20]           T 126

[21]           T 126

28        With respect to the second cause of action, the plaintiff said that it was not until the surgery which he underwent upon his right leg in 1999 failed, that he realized that his condition was permanent in that it could not be improved. I am satisfied however that by 1996, having previously completed his first year medicine and with knowledge of the existence of the condition of osteochondritis dissecans, the plaintiff possessed sufficient knowledge to understand that the injury occasioned to him was sufficiently serious to justify the bringing of proceedings against the defendants.

29        In these circumstances I find that it was in December 1996 that the plaintiff possessed the requisite knowledge that he had suffered injury sufficiently serious to justify the institution of proceedings in respect to his second cause of action.

30 The application of this date as the date upon which the limitation period with respect to the second cause of action expired would result in the limitation date in respect of the second cause of action accruing after the plaintiff’s twenty fourth birthday. As this would be in contravention of s.27N of the Act, I fix the limitation date in respect of the second cause of action as the date of the plaintiff’s twenty-fourth birthday, namely 15 June 1994.[22]

[22] The operation of the provisions of s27N(4) of the Act set the plaintiffs twenty-fourth birthday as the outer limit of the limitation period as this is the limitation date applicable to each of the plaintiffs causes of action but for the operation of Part 2 of the Act.

The Reasons for Delay

31        The plaintiff’s evidence as to the activities in which he engaged in the years immediately following the occurrence of events upon which his two causes of action are based is as follows:

•  he obtained his VCE in 1988 with marks sufficient to qualify for admission for the Medical Faculty at the University of Melbourne;

•  during 1989 he successfully completed the first year of his medical degree, at which time he deferred his further study by reason of his inability to cope on emotional grounds;

•  between 1990 and 1994 the plaintiff described his life as virtually at a standstill. He said that he expected he would take his own life and for that reason was not in a state of mind which allowed him to commence proceedings against the defendants.[23]

•  the plaintiff further explained his failure to commence proceedings between 1990 and 2000 in the following terms:

[23]           T 49

“I - well, between the period 1990 and 1999, well, for most of that time, you know, I was feeling so psychologically or personally traumatised that, no, I don't know who to complain to or how to approach people or you don't - you're so psychologically - under so much psychological duress or disempowerment, disenfranchisement that you don't know who to complain to, how to complain to and you're not - I don't - I never felt sort of in a healthy or assertive or confident enough position to sort of complain to anyone. I was also - well, between 1990 and 1994 I fully expected, you know, to commit suicide or end my life and then the focus between 1995 and 1999 was simply to see how much of the short-term trauma or damage I could get myself out of because I didn't feel like any long-term injury was fully discoverable or fully apparent to me”.[24]

[24]           T 49

32        The plaintiff further relied upon his unstable lifestyle, living and economic position during this period as presenting further obstacles to his commencing proceedings.

33        Essentially these were the reasons which the plaintiff gave for taking no action to commence proceedings in respect of each of his causes of action.[25]

[25]           I have previously considered the position put by the plaintiff that an inability on his part to recognize the nature and extent of his injuries was a cause for the delay in commencing proceedings in respect of each cause of action and made findings that these circumstances did not justify the delay involved,.

34        The plaintiff’s activities by the turn of the century namely:

(i)	in 2000, he was actively pursuing his rights against the defendants by making enquiries to the Medical Practitioners Board of its complaints process;[26]
(ii)	in 2001, he made his first complaint to the Board. At around the same time the plaintiff made contact with the Medical Health Legal Service and the Health Services Commissioner;[27]

clearly establish the plaintiff’s competence to investigate and pursue his rights against the defendants at that time. I have been provided with no medical evidence which supports the claim made by the plaintiff that, at any time relevant to the issues I am required to consider in this application prior 2000, his mental state was such that it presented a legitimate reason for the plaintiff’s inaction in commencing proceedings against the defendants and I am not satisfied, the plaintiff having the onus in this regard, that this was in fact the case.

[26]           T 50

[27]           T 51

35        For these reasons I am not satisfied that the reasons relied upon by the plaintiff as justifying the delay which has occurred in commencing proceedings with respect to both the first and the second causes of action are made out on the balance of probabilities.

The extent to which, having regard to delay, there is likely to be prejudice to the defendants

36        The defendants assert that they are exposed to the general prejudice which is attendant with the effluxion of time, together with specific prejudice which arises in respect of the causes of action by reason of:

(i)	the death of Dr Rickards and the loss of his notes;
(ii)	the death of Dr Menelaus;
(iii)	the decommissioning of the Parkville Adolescent Centre in 1996 and an associated loss of witnesses;
(iv)	the absence of medical records relating to the plaintiff’s attendance at The Royal Melbourne Hospital between 1990 and 1994;
(v)	the fact that any material relied upon by the Magistrates’ Court at Ballarat in making the order which resulted in the plaintiff being made an inpatient at the Parkville Unit is not available to the defendants;
(vi)	the fact that the medical records of The Royal Children’s Hospital relevant to the plaintiff’s management are said to be incomplete;
(vii)	the absence of an x-ray of the plaintiff’s right knee taken in July 1984 which it is asserted was pivotal to the defendants’ diagnosis and management of the plaintiff’s knee injury.

37        The prejudice to the defendants associated with the death of Dr Rickards and the loss of his notes and the death of Dr Menelaus. as attested to in paragraphs 7 through to 12 in the affidavit of Peter Stuart McGrath sworn 15 December 2008 has not been challenged by the plaintiff.

38         Whilst it was the plaintiff’s evidence that it was his belief that Dr Rickards did not play a major role in his treatment, this does not necessarily lead to the position that Dr Rickards would not have been a crucial witness on behalf of the defendants. In this regard, I accept the submission on behalf of the defendants that this would have been the case.

39        I accept the defendants’ submission that:

• the death of Dr Rickards and the loss of his notes

• the absence of material relied upon by the Magistrate in making the order which resulted in the plaintiff being made an inpatient at the Parkville Unit is not available to the defendants

• the present inability to locate the plaintiff’s treating psychologist at the Parkville unit, Mr Verberne, and the psychiatric superintendant at the Parkville unit, Dr Peter Eisen

• the absence of medical records relating to the plaintiff’s treatment at The Royal Melbourne Hospital

are all relevant aspects of specific prejudice which adversely affect its ability to defend the first cause of action to varying degrees, the most significant being in my opinion the death of Dr Rickards and the loss of his notes.

40        The defendants assert that they are exposed to specific prejudice with respect to the second cause of action by reason of the death of Dr Malcolm Menelaus, the orthopaedic surgeon involved in the management of the plaintiff’s presentation with respect to his knee. Further it is contended that an x-ray of the plaintiff’s right knee taken in July 1984 which is likely to be a document of critical importance in the plaintiff’s second cause of action and that this has been lost.

41        The prejudice associated with the death of Dr Menelaus and the loss of the X-ray is obvious and significant, having regard to the allegations made by the plaintiff in paragraph 8(c) of his Statement of Claim.

The extent, if any, to which the defendants 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 defendants

42        In submissions made on behalf of the plaintiff, it is not suggested that any failure by the defendants to make available to the plaintiff relevant facts is germane to the issues I am required to consider in this application. Having regard to the plaintiff’s evidence as to his knowledge of the alleged failures by the defendants to provide appropriate medical management and my findings as to the date upon which the limitation period expired, I am satisfied that the provisions of s.27L(c) are of no real relevance to this application.

The duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability

43        It is not submitted on behalf of the plaintiff that any disability or level of incapacity arising on or after the date of discoverability is relevant to the present application.

The time within which the cause of action was discoverable

44        I have already made findings as to this issue.

The extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendants, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages

45        The plaintiff gave evidence that between 1991 and 1994 his mental health was such that:

“I fully expected to probably, you know, commit suicide or end my life.”[28]

[28]           T 57

46        He said that between 1995 and 1997 he was trying to deal with his eating disorder breakdown and then trying to move on, and that during the ten years between 1990 and 2000 he was never in –

“productive, comfortable or living circumstances. Often, you know, often – most of the time [I] didn’t have access to a phone, [I] didn’t have living circumstances where I could protect or prepare, sort of, written documents.”[29]

[29]           T 57

47        He said that between 1990 and 1999 he was, for most of the time, feeling so psychologically or personally traumatised he did not know –

“who to complain to or how to approach people or you don’t – you’re so psychologically – under so much psychological duress or disempowerment, disenfranchisement that you don’t know who to complain to, how to complain to and you’re not – I don’t know, I never felt sort of in a healthy or assertive or confident enough position to sort of complain to anyone.”[30]

[30]           T 49

48        I have previously commented that I am not satisfied that the plaintiff’s mental state was such that it presented a legitimate reason for his inaction in commencing proceedings against the defendants. I accept however the plaintiff’s evidence that he faced considerable emotional difficulties during the decade between 1990 and 2000. In the circumstances, although I am not satisfied that these difficulties justified the plaintiff’s delay in issuing proceedings, I am satisfied that I should not be unduly critical of the plaintiff’s failure to commence proceedings against the defendants between the date which I have fixed as the limitation date with respect to each of his causes of action and the beginning of the year 2000.

49        The evidence satisfies me, however, that from about January 2000, the plaintiff took a number of steps in the process of pursuing his causes of action against the defendants.

• In January 2000, the plaintiff consulted the Mental Health Legal Centre[31] for the purpose of ascertaining what processes may be available to him, and at about the same time he approached the Medical Practitioners Board.[32]

• By August 2001, the plaintiff had made enquiries of Maurice Blackburn and Slater & Gordon.[33] And by January 2000, he was aware that limitation issues may be relevant to any proceedings which he commenced.[34]

[31]           T 145

[32]           T 146

[33]           T 149

[34]           T 150. Whilst the plaintiff asserts that the activities of various statutory institutions in failing to adequately investigate his complaints against the defendants contributed to his delay in commencing proceedings. I do not accept that such delays, if they in fact occurred, excuse the delay which has occurred in this instance.

50        When account is taken of the fact that the proceedings

[35]           eighteen years after the conclusion of the treatment period relied on by the plaintiff with respect to that cause of action.

[36]           twenty two years after the treatment relied on by the plaintiff with respect to that cause of action.

(i)	with respect to the first cause of action were filed on 21 May 2004;[35]
(ii)	with respect to the second cause of action were filed on 31 March 2006;[36]

I am of the opinion that there is some substance in the defendants’ position that the plaintiff’s delay in commencing proceedings is deserving of criticism.

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

51        For the reasons discussed earlier, I do not consider it appropriate to be unduly critical of the plaintiff for his failure to obtain either medical, legal or expert advice during the decade between 1990 and 2000. In the four years which elapsed between 2000 and the commencement of the first proceeding, the plaintiff contacted both Maurice Blackburn and Slater & Gordon[37], both of whom declined to act on his behalf.

[37]           solicitors with recognised expertise in the conduct of medical negligence proceedings.

52         The allegations made by the plaintiff in each of his causes of action are complex and their investigation would require access to, and the consideration of, a considerable volume of medical records. It is not surprising to me that the process of assessing the viability of the plaintiff’s potential causes of action was a task which may have been approached with some reluctance by the legal fraternity. I do not consider any failure by the plaintiff to seek medical opinion is of particular relevance in the circumstances of this proceeding.

53        For these reasons I am not satisfied that it is appropriate to be unduly critical of the plaintiff’s failure to obtain medical, legal or expert advice.

The Factors to be Considered Pursuant to Section 27L(2)

54        Section 27L(2) requires me to take into account three further factors, namely whether the passage of time has prejudiced a fair trial of the claim and the nature and extent of the plaintiff’s loss and the nature of the defendants’ conduct. The drafting of this subsection suggests that I should consider these three factors together, and this is the approach which I intend to adopt.

Has the passage of time prejudiced a fair trial in the proceeding?

55        It is submitted on behalf of the defendants that the combination of delay, the absence of witnesses and the loss of relevant documentation, including medical and court records, results in a position that the defendants will inevitably be denied a fair trial should the matters proceed.

56         I accept the defendants’ position that both Dr Rickards and Dr Menelaus, who are now deceased, were likely to be important witnesses in the proceedings having regard to the plaintiff’s evidence in the course of the application.[38]

[38]           see in particular T 124 with respect to Dr Menelaus; T 131 with respect to Dr Verberne.

57        I further accept the evidence, which was not challenged,

• that Dr Rickards’ notes are not available to the defendants;

• that any material relied upon by the Magistrate in making the order which resulted in the plaintiff being made an inpatient at the Parkville Unit is not available to the defendants;

• that questions arise as to the integrity of the medical records of both The Royal Children’s Hospital and The Royal Melbourne Hospital relevant to the plaintiff’s management during the period the subject of the first proceeding and following that period, and that these records may well be relevant to the defendants’ defence of the proceedings;

• that the x-ray of the plaintiff’s right knee taken in July 1984 is likely to be a document of critical importance in the plaintiff’s second cause of action and that this has been lost;

• that the defendants have been unable to locate the plaintiff’s treating psychologist at the Parkville unit, Mr Verberne, and the psychiatric superintendant at the Parkville unit, Dr Peter Eisen, and that the absence of these witnesses would impede the ability of the defendants to conduct their defence.

58        In addition, I accept the defendants’ position that the plaintiff’s case invariably involves issues of medical judgment made on the basis of the plaintiff’s presenting symptoms at given times together with any histories available at given time, and that the passage of time involved in this instance is extremely long and that this, in itself, would impede the ability of the defendants to conduct their defence.

The nature and extent of the plaintiff’s loss

59        No material has been provided by the plaintiff which allows me to assess the nature and extent of his loss. It is clear, however, from the plaintiff’s pleadings that the plaintiff regards the defendants’ alleged medical mismanagement as being crucial to the position in which he finds himself, namely that of a young man who, notwithstanding having successfully completed the first year of a medical degree, has never worked and derives his income from a disability pension.

60        The defendants contend that the plaintiff’s position in this regard needs to be balanced by the fact that real causation issues arise with respect to every injury and loss relied upon by the plaintiff in the proceeding, and that I should not be satisfied that the claimed loss by the plaintiff is anything other than an allegation which at the present time is unsubstantiated.

61         I accept that the loss of the right to pursue his causes of action against the defendants gives rise to a potentially significant loss to the plaintiff. Given the absence of any independent evidence as to the merit of the plaintiff’s cases against the defendants, both in relation to liability and causation however, I am unable to quantify that loss other than to recognize its potential. In these circumstances I do not consider that the nature and extent of the plaintiff’s potential loss can be ascribed weight which would in any way balance the findings I have made as to the prejudice to which the defendants are exposed with respect to the gaining of a fair trial.

The nature of the defendants’ conduct

62        It is not asserted by the plaintiff that the nature of the defendants’ conduct is such that it is relevant one way or the other to the matters I am required to consider in this application and I accept that position.

Other Relevant Matters

63        It is submitted on behalf of the defendants that:

•  the failure by the plaintiff to obtain legal representation may have arisen by reason of the assessment by the solicitors approached by the plaintiff that the case was not meritorious,

•  The failure of the plaintiff to disclose the evidence of at least six medical experts[39] from whom opinions have been obtained on his behalf is a factor which weighs against the granting of an extension of time as:

[39]           T 10

“it raises doubt about whether the opportunity to prosecute his

claims can have any legal purpose.”

64        I do not accept either of these submissions. Notwithstanding the significant changes to the Act which had been introduced since the decision in Taylor v Western General Hospital,[40] I am satisfied that the approach which I am required to take in an application of this nature is that, if I am satisfied that the plaintiff’s cause of action does not amount to an abuse of process, the likelihood of succeeding the claim is of no relevance.

[40]           (supra)

65        Whilst if medical evidence supporting the cause of action had been adduced by the plaintiff it would have been easier to be satisfied that allegations which are made as to medical mismanagement do not constitute an abuse of process, I am nonetheless satisfied that the allegations made by the plaintiff as to the deficiencies in his medical treatment with respect to each of his causes of action, if accepted without qualification, would not amount to an abuse of process.

Conclusion

66        In deciding whether it is just and reasonable in the circumstances to order that the period of limitation applicable to the plaintiff’s causes of action should be extended, I am required to balance all of the relevant factors to which I have referred and to accord them appropriate weight. The delay which has occurred is very significant. The reasons for this delay as explained by the plaintiff, are to some extent understandable but I have found that they do not totally excuse the delay. I am satisfied that the claim, if established by the plaintiff, would not be insubstantial. I am satisfied that the defendants have demonstrated that they are likely to suffer substantial prejudice in preparing their defences to each of the causes of action and that the combination of both the general prejudice associated with the passage of time and the specific prejudice to which I have previously referred, is such that the ability of the defendants to mount a defence to the proceeding has been adversely affected to a very significant degree. I do not consider that the nature and extent of the potential loss to the plaintiff in being denied the right to pursue the claims made against the defendants in this proceeding, can be ascribed weight which would in any way balance the findings I have made as to the prejudice to which the defendants are exposed with respect to the gaining of a fair trial.

67        In undertaking the balancing exercise which I am required to perform, and taking into account that the onus is upon the plaintiff to persuade me that it is just and reasonable in the circumstances to order that the period of limitation applicable to his causes of action be extended, I am not satisfied that it is just and reasonable to do so.

68        In the circumstances, I will make an order dismissing the plaintiff’s application and I will hear submissions from counsel as to the orders which should be made with respect to the proceeding and as to costs.

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