Kaye v Hoffman - [2007] TASSC 31

[2007] TASSC 31

CITATION: Kaye v Hoffman [2007] TASSC 31

PARTIES:  KAYE, Kylie Marie  Plaintiff
  v
  HOFFMAN, Linda  Defendant
  STATE OF TASMANIA  Third Party

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1092/2001
DELIVERED ON:  30 May 2007
DELIVERED AT:  Hobart
HEARING DATES:  29 & 30 November; 7 & 13 December 2006;

31 January; 7, 8 & 9 March; and 11 & 12 April 2007

DECISION OF: Master S J Holt

CATCHWORDS:

Limitation of Actions – Contracts, torts and personal actions – Personal injury cases – Date of discoverability – Whether reasonable steps taken to ascertain facts.

Limitation Act 1974 (Tas), s2.
Aust Dig Limitation of Actions [28]

REPRESENTATION:

Counsel:
             Plaintiff:  M A Hartley
             Defendant:  K B Procter SC
             Third Party:  P Turner
Solicitors:
             Plaintiff:  Hugh Murray
             Defendant:  Murdoch Clarke
             Third Party:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 31
Number of paragraphs: 166

Serial No 31/2007
File No 1092/2001

KYLIE MARIE KAYE v LINDA HOFFMAN and
STATE OF TASMANIA (Third Party)

REASONS FOR DECISION Master S J Holt
30 May 2007

The application

This is an application by the plaintiff for an order extending the time for bringing an action for damages for personal injury. The application has been made under s38A of the Limitation Act 1974 ("the Act"). The provision was added to the legislation on 1 January 2005 with the commencement of the Limitation Amendment Act 2004. By subsection (1) it confers a discretion to extend time for up to three years from the date when the plaintiff knew or ought to have known that injury attributable to the defendant's conduct had been suffered. It applies to causes of action which accrued before 1 January 2005. The plaintiff's writ issued on 23 November 2001 claiming damages in respect of conduct which resulted in injury in 1994. The plaintiff claims that the date of discoverability was 26 November 1998. Hence the plaintiff says that s38A applies and there is a discretion to extend time to the date of the issue of the writ.

In her statement of claim the plaintiff alleges that "in late 1993 or early 1994" the defendant, an endocrinologist, negligently misdiagnosed her as suffering from a pituitary tumour. It is asserted that the plaintiff suffered personal injury including the side effects of drug therapy (the defendant having prescribed parlodel), a resultant pregnancy termination and fear, stress, anxiety and depression. The defendant has filed a defence denying that she diagnosed a pituitary tumour in the plaintiff and although admitting that she commenced treating the plaintiff with parlodel stating that it was the appropriate treatment for a condition from which the plaintiff did suffer, namely, hyperprolactinaemia. The defence also pleads that "the plaintiff's action is statute-barred by virtue of Section 5(1) of the Limitation Act 1974".

The Act, s5(1), is as follows:

"An action for damages for negligence, nuisance, or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consist of, or include, damages in respect of personal injuries to any person shall not, subject to this section, be brought after the expiration of a period of 3 years from the date on which the cause of action accrued."

The plaintiff says that she first suffered adverse side effects from parlodel in early 1994. Accordingly, it was common ground that the plaintiff's cause of action within the meaning of the Act, s5(1), accrued in early 1994. The three year time limit expired in early 1997. The Act, s5(3), gives the Court a discretion to extend the period within which a personal injuries action might be brought to a time which "does not exceed a period of six years from the date on which the cause of action accrued". The result was that by early 2000 an absolute time bar had taken effect.

Despite the existence of the time bar the plaintiff issued her writ in November 2001. This was done at the instance of the plaintiff's Victorian solicitor. The plaintiff first consulted the solicitor on 17 December 1998 instructing him that she did not know that she had never had a tumour until so advised by Melbourne endocrinologist, Dr Robin Murray, on 26 November 1998. The solicitor let the six year limitation period pass by and did not tell the plaintiff that there was an insurmountable time bar standing in the way of her claim. He arranged for the writ to be served in late 2002. In December 2002 he received the defence pleading the limitation point, but still gave no advice to his client about this matter. The action was progressed as if it had a prospect of success when at the time it had no such prospect. The chance of the time bar being lifted did not arise until the Act was amended with the addition of s38A effective from 1 January 2005.

I set out the solicitor's evidence in detail. It is relevant to whether, if the discretion to extend time to the date of the issue of the writ is available, the plaintiff ought be "saddled with responsibility" for delay attributable to inactivity by her solicitor. Hall v Nominal Defendant (1967 – 1968 ) 117 CLR 423 at 435. It also needs to be considered in the context of a submission by the defendant's counsel (which I will deal with later in these reasons) that any injustice to the plaintiff in withholding a favourable exercise of the discretion will be mitigated in that she has a viable claim against her solicitor for damages for the loss of an opportunity to recover damages in this proceeding. It is convenient to reproduce the evidence now as it explains why, presumably, a very expensive action was pursued on the plaintiff's behalf for several years when at the time, because of the time bar, it had no way of succeeding.

Under cross-examination the plaintiff's Victorian solicitor gave the following evidence:

"I was conscious from the outset that I would need to look up the time limitation period - in Victoria – then it was six years and I needed to check to see what it was in Tasmania. I didn’t assume it was the same so I needed to check that. I’d given that a thought. At some – I can’t remember when but it was early on following instructions, that I learnt that it was three years from the cause of action.
… it was in probably the early part of 1999 but I don’t recall specifically.
…
I understood it to be three years from [when] the cause of action arose and the cause of action arose when she learnt that there had been a misdiagnosis. Because of the nature of the case it seemed to me that upon learning that there’s a misdiagnosis a cause of action accrues. That’s how I understood it.
…
I didn’t look for any authorities at the time. At that time, I did not look into the matter further.
…
Subsequently, during the course of this case, I’ve learnt differently and had to deal with that issue but at the time that’s how we progressed.
…
Kylie would telephone me on a regular periodic basis, maybe every few weeks, every couple of weeks, every month. It wasn’t obviously a specific period but it was quite a few times, it was quite a few calls. It was one of those clients I have to – I will stress, she was calling but I just found that at that point I couldn’t deal with this matter due to my other – due to some of the workload that I had that was particularly pressing at that time and I include in that some criminal related matters which involved the liberty of clients, some particularly urgent other matters. There was a lot of other things then going on and I did not give this matter then the attention that I would normally like to think I would be able to give matters.
…
… in June 2000. I was arranging to see Kylie. I went over the file and I looked at all of it and at that point, for the first time I turned my attention to the phrase that you referred earlier, about that cause of action and I had an article clerk look at the matter just before that time. I can’t remember exactly when but just before that time …
…
… we’d just had a change of article clerks and I asked the new person, as I recall it, to look into it further for me.
…
… she went into it and looked at the section and produced a couple of cases. I don’t remember which ones they were.
…
I then looked at some point after that at some of those cases … the research that was done by my subsequent article clerk wasn’t particularly detailed and I effectively determined that I had to turn my mind to this again at some point. It was something that I had to look at myself and I didn’t have the time but I became conscious of the possibility that this could be a problem in that the cause of action might have accrued according to Tasmanian law back in ’94. I just thought, at that time, that just can’t be right.
…
I just didn’t tell her. I just thought unless I know myself, there’s no point just saying, oh, look there’s a possible problem and I haven’t got an answer for it. I didn’t raise that as an issue. … I just didn’t tell her.
…
I told her that she had three years from ’98 and we had to issue the thing by 2001 and it was part of – maybe I was being a little defensive in that I hadn’t pursued this matter really hard because of my other cases and I’d seen Kylie and she had been calling me, ‘Nick, what’s happening, etcetera’. I said, ‘Look, it’s all okay, we’ve got three years.'
…
I briefed counsel in Melbourne. Mr Bennett – briefly Mr Mihal and then it went to Mr Bennett who drew the statement of claim and that was provided to Mr Jackson, to the best of my recollection then in ’01 and I can’t say why that wasn’t filed until ’02. … I think before the matter was to be served. I can say that in – in November, early November ’01, I received a letter from Mr Jackson of Jackson & Tremayne after he filed the endorsement of claim, …
…
… he drew my attention to certain matters about the limitation of actions and I then, as a result of that, had – gave this matter far greater consideration …
… I gave it lots of consideration after I was alerted by Mr Jackson to – certain matters to do with limitations. I had previously to that written to my client and simply informed her that the claim had been filed … I ultimately explained to her then that – I can’t remember what I explained to her but I explained to her then that the advice that was given to me by Mr Jackson, that the action accruing possibly in 1994 and if the defendant took the point, she could be out of time and it was resolved to proceed in any event and the matter proceeded.
…
I proceeded on the basis … that this matter could proceed. And it did … and there were interlocutory steps taken … I can’t remember the dates of all those but I think at the same time as the defence was filed, which you refer to, on or about the same time there was [sic] requests for further particulars and there was [sic] other interlocutory steps that were taken by the defendant and those were attended to and the matter just proceeded in that way and I considered that … the matter could proceed and I told the client that it could and I continued to seek instructions from her in relation to those interlocutory steps and the matter proceeded."
[transcript pp665, 666, 672, 674, 675, 676,678, 679, 680, 684, 685 and 687]

The plaintiff's application for an extension of time was filed on 23 September 2005. As I have said the prospect of obtaining an extension of time only became possible with the amendments to the Act which came into effect on 1 January 2005.

The amending Act made new provisions as to the time within which actions for damages for personal injury could be brought where the cause of action accrued on or after the date the amendments came into effect. Under the amended legislation personal injuries actions are to be commenced within the earlier of three years commencing on the date of discoverability or 12 years commencing on the date of the defendant's impugned act or omission. In addition, a discretion is conferred giving jurisdiction to extend the 12 year period to three years commencing on the date of discoverability. Fortuitously for the plaintiff the amending Act also contained s38A(1) being the provision conferring on the Court a discretion to extend time for up to three years commencing on the date of discoverability in respect of causes of action which had accrued before January 2005.

The Limitation Amendment Act 2004, by s4, added a definition of "date of discoverability"; by s5 confined the operation of the old limitation periods to causes of action which had accrued before the commencement date; by s6 made the "date of discoverability" the starting point in respect of new causes of action and by s8 introduced the provision giving the jurisdiction to extend time upon which the plaintiff now relies. The relevant parts of the amending Act are as follows:

"Section 2 amended (Interpretation)
4 Section 2(1) of the Principal Act is amended by inserting after the definition of 'action' the following definitions:
'commencement day' means the day on which the Limitation Amendment     Act 2004 commences;
'date of discoverability', in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death –
(a)       had occurred; and
(b)       was attributable to the conduct of the defendant; and
(c) in the case of personal injury, was sufficiently significant to warrant bringing proceedings;

Section 5 amended (Actions in respect of personal injuries incurred before commencement day)
5 Section 5 of the Principal Act is amended by inserting after subsection (1) the following subsection:
(1A) This section applies only to an action where the cause of action accrued before the commencement day.

Section 5A inserted
6 After section 5 of the Principal Act, the following section is inserted in Division 2:
Actions in respect of personal injuries incurred on or after commencement day
5A(1) This section applies only to an action where the cause of action accrues on or after the commencement day.
(2) For the purpose of this section, 'personal injury' includes any disease and any impairment of a person's physical or mental condition.
(3) An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of whichever of the following periods of limitation is the earlier:

(a) 3 years commencing on the date of discoverability;
(b) 12 years commencing on the date of the act or omission which it is alleged resulted in the personal injury or death that is the subject of the action.
(4) An action for damages under the Fatal Accidents Act 1934 in respect of the death of a person is taken to be an action referred to in subsection (3).
(5) A judge may extend the period of limitation referred to in subsection (3)(b) to the expiry of 3 years commencing on the date of discoverability having regard to the justice of the case and, in particular to –
(a) whether the passage of time has prejudiced a fair trial of the action; and

(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant's conduct.

(6) …

Section 38A inserted
8 After section 38 of the Principal Act, the following section is inserted in Part IV:
Savings and transitional provisions
38A. (1) A person who has a cause of action which accrued before the commencement day may apply to a judge for an extension of the period of limitation specified in section 5(1) to 3 years commencing on the date of discoverability.
(2) A judge may extend the period of limitation specified in subsection (1) having regard to –

(a)       the justice of the case; and
(b)       the matters mentioned in section 5A(5)(a), (b) and (c).
(3) A person may apply to a judge for an extension of the period of limitation specified in section 5(1) to 3 years commencing on the commencement day if that person –
(a) suffers from an injury or disease the date of discoverability of which occurred 6 or more years after the cause of action accrued; and
(b) has a cause of action which accrued before the commencement day; and
(c)       proposes to rely on a date of discoverability which occurred before the commencement day.
(4) The judge may extend the period of limitation referred to in subsection (3) having regard to the matters set out in subsection (2)."

The definition of "date of discoverability"- Is the reference to "the conduct of the defendant" a reference to wrongful conduct or merely a reference to conduct which causes injury?

Counsel for the third party (who appeared on the hearing of the application by leave granted unopposed) made a submission that the definition of "date of discoverability" in the Act does not contain any necessary element of appreciation by the plaintiff of wrongdoing by the defendant. The submission was that the date of discoverability is when it is, or ought to have been, appreciated that an injury sufficiently serious to justify proceedings had been, howsoever, caused by conduct of the defendant.

The argument proceeded that it does not matter when the plaintiff here did discover, or ought to have discovered that in fact she had never had a tumour. The relevant conduct was the alleged diagnosis of the tumour which she claims led to the drug therapy which led to injury. The submission continued that the plaintiff knew that she had been diagnosed with a tumour right from the time of being told of the diagnosis early in 1994 and suffered resultant injury as soon as the first material side effect of the drug therapy had occurred. That was almost immediately after the alleged diagnosis. This being so, the date of discoverability was in 1994 and by the time the writ issued in 2001 many years had passed leaving the Court without jurisdiction to extend time under the Act, s38A or otherwise.

The construction argument was based upon the following propositions:

(a)To apply the definition of "date of discoverability" there must first be a finding that a fact or circumstance exists before the enquiry can progress as to when that fact or circumstance was or ought to have been discovered.
(b)A finding on an extension of time application that injury was suffered due to the tortious conduct of the defendant would be determinative of the action if the extension of time sought was granted. This is because the finding would create an issue estoppel.
(c)To avoid this consequence Parliament eschewed any reference in the definition to the injury causing conduct being wrongful.

I agree with counsel for the third party that if the facts upon which the claim is based had to be proved on an extension of time application the findings on those facts would be binding on the parties at the trial of the action. In Kuligowski v Metrobus (2004) 220 CLR 363, the Court noted at par21:

"In his speech in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935, Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements were:
'(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.'"

There would be no doubt that requirements (1) and (3) would have been met if the facts showing the plaintiff's entitlement to succeed had to be and were proved on an extension of time application. Requirement (2) would also have been met because the decision on an application for an extension of time for relevant purposes is a final decision and not an interlocutory decision. This is because the decision would be "completely effective unless and until it should be rescinded, altered or amended" Kuligowski at par39.

Counsel for the third party submitted that it is significant that the definition of "date of discoverability" contains no reference to the conduct of the defendant being wrongful despite such reference being contained in the recommendations which led to the amendments to the Act and despite such reference being contained in legislation from other States referred to during the course of the Parliamentary debate. He submitted that this omission should not simply be passed over as an inconsequential matter of drafting style, but should be attributed to a recognition in the legislation that on an extension of time application the facts discovered must be proved as facts. He submitted that because of this the question of whether the injury causing conduct was wrongful was excluded as it would be inappropriate to decide such a matter on an extension of time application.

According to the second reading speech when the proposed amendments were before Parliament the Bill was based on the Ipp report recommendations which had been adopted in New South Wales and Victoria. The Ipp recommendation at par6.19 was relevantly for legislation in terms:

"The date of discoverability means the date on which the plaintiff knew, or ought to have known, that personal injury or death:
…
(b)Was attributable to negligent conduct of the defendant; …"
[emphasis added]

Section 50D of the New South Wales Limitation Act and s27F of the Victorian Limitation of Actions Act are relevantly both in terms:
"(1)…, a cause of action is discoverable by a person on the first date that the person knows or ought to …. of … the following facts:
…
(b)the fact that … injury was caused by the fault of the defendant;" [emphasis added]

I do not think that the legislation omits any reference to the conduct being wrongful because of an issue estoppel concern. Limitation legislation is concerned with the time for bringing proceedings and not with the substantiation of the allegations which make up the cause of action. This being so, questions of issue estoppel do not arise. The reference in the definition to "the conduct of the defendant" must be a reference to the conduct alleged in the proceedings rather than a reference to conduct proved.

Despite the omission of any specific reference to negligence or fault in respect of the defendant's conduct in the definition of "date of discoverability" I consider that the reference is a reference to conduct alleged which when coupled with the alleged injury creates a cause of action. That is to say it is a reference to the whole of the conduct upon which the cause of action is based and not merely a reference to conduct to which injury can be linked. The former interpretation advances the purpose of the legislation and the latter hinders it insofar as it is a legislative object to accommodate the demands of justice by fairly balancing the interests of plaintiffs and defendants.

The definition of "date of discoverability" is not there just for purposes of the extension of time provisions being s5A(5) and s38A. It is there also for the purposes of s5A(3). Under the latter provision proceedings by a person, not under a disability, to recover damages for personal injury cannot be brought more than three years after the date of discoverability. In most cases the existence of a right of action will be apparent as soon as the injury is suffered. Take for example a motor vehicle collision or an assault. But in many cases the existence of a right of action will not be immediately apparent. For example, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the Court was considering a situation where the plaintiff alleged that in 1979 a doctor recommended that she undergo a hysterectomy, telling her that the operation was necessary and that without it she was "at risk of death". She had the hysterectomy. In 1994 she obtained access to her medical records which disclosed that the condition from which she had suffered was not a condition for which a hysterectomy was a necessary treatment.

To interpret the definition of "date of discoverability" in a way which would leave scope for time limits to pass by well before plaintiffs would have any reason to consider commencing an action would be to interpret the limitation legislation as in many cases imposing an arbitrary cut off point. The purpose of having time start to run from the date of discoverability is so the cut off point will not be arbitrary and will not be unrelated to the demands of justice or the general welfare of society. Where there is a choice between an interpretation which promotes the object of an Act and an interpretation which does not the former is to be preferred. The Acts Interpretation Act 1931, s8A, provides:

"8A Regard to be had to purpose or object of Act
(1) In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object.
(2) Subsection (1) applies whether or not the purpose or object is expressly stated in the Act."

Counsel for the third party referred to a decision in the Supreme Court of Victoria in Caven & Anor v Women's and Children's Health [2007] VSC 7 (2 February 2007), in which s27F of the Victorian Limitation of Actions Act was considered. I have set out the relevant part of that section earlier in these reasons. There Kaye J said at pars55 and 56:

"… It is common ground that the critical question is whether the plaintiffs, on or about that date, knew or ought to have known of the facts prescribed in s27F(1)(b), namely that 'personal injury was caused by the fault of the defendant'.
The Act does not define the term 'fault'. In some other contexts, such as s5(1A), it uses a different phrase, namely 'act or omission'. It is arguable that the use of the different term 'fault' evinces a legislative intention that the plaintiff must know, or ought to know, not simply of the existence of the act or omission which caused the injury, but also that the injury was caused by a legal wrong. However, it would be curious if the legislation is intended to work in such a way, so as to postpone the application of the period of limitation until the plaintiff knew of his or her legal rights. This matter was not argued before me. Mr Noonan submitted that I should adopt the construction of the term 'fault' in s27F(1)(b) which was adopted by his Honour Judge Stott at the County Court in Dark v Country Fire Authority, unreported, 21 June 2005, par10, and Ilardi v Forster (2006) VCC 793 at [16]. In those cases Judge Stott construed the word 'fault' to mean 'act or omission'. Thus the discoverability referred to in s27F(1)(b) was held by his Honour to relate 'to the time at which the plaintiff knew that there was a causative link between the defendant’s conduct and the injury he suffered' Dark v Country Fire Authority at [10]. With respect I find the reasoning of his Honour to be sound and convincing. In the absence of argument to the contrary, for the purpose of these reasons, I shall adopt his Honour’s construction."

I do not think that Kaye J was saying that discovery of any aspect of the defendant's conduct , which though without more would be insufficient to show wrongdoing, would be sufficient for the purpose of establishing the date of discoverability if injury was linked. I think that all he was saying was that appreciation of the legal consequences of the defendant's conduct is not relevant. In other words, the focus is on the conduct and not the legal remedies, if any, which might attach to it. If I am wrong in my interpretation of what Kaye J has said and his conclusion supports the proposition advanced by counsel for the third party then for the reasons which I have already stated I would decline to follow what he has said.

Counsel for the third party, fairly, referred to the decision of the New South Wales Court of Appeal in Commonwealth v McLean (1996) 41 NSWLR 389, notwithstanding that it did not support his argument. The Court in Mclean was considering a discoverability provision which unlike the Tasmanian definition operated exclusively in conjunction with an extension of time provision. Nonetheless, I think the decision is apposite in the context of the Tasmanian legislation because the definition here is not only for the purpose of identifying the time of commencement of the limitation period, but also like the provision considered in McLean has operation in the context of extension of time provisions. Handley JA and Beazley JA said at 394 - 395:

"The statement of claim was issued on 29 November 1995 and on 6 December the plaintiff applied for an extension of the limitation period. The application was based on a s 60G and s 60I of the Limitation Act 1969 as amended. …
…
Section 60I(1) provides:
'A court may not make an order under section 60G … unless it is satisfied that:

(a) the plaintiff
(i) did not know the 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 …; and
(b)the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters …'

Section 60G(2) provides:
'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 … 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 …'.
…

Section 60G and s 60I are clearly intended to operate together. The requirement in s 60I that the court be satisfied of various matters must be read as requiring no higher proof from an applicant on matters which form part of the cause of action than is required by s 60G(2). When these provisions are read together, it becomes clear, as the judge held, that s 60I requires the court to be satisfied that the applicant was not aware of the matters referred to, but does not require proof of those matters as facts.
If the applicant had to satisfy the court of the existence of ingredients of his or her cause of action, s 60I would not only impose requirements which were inconsistent with a s 60G(2) but it would have increased the burden of proof on an applicant above the level previously required by s 58(2). It is clear from s 60G(2) that this was not the intention of parliament.
We also endorse the judge's interlocutory ruling disallowing cross-examination of the applicant's experts. An application for extension is not a trial, or a dress rehearsal for the trial. The court is concerned with whether there are serious questions to be tried, and once this threshold is established on the relevant issues, cross-examination or further cross-examination on those issues can serve no useful purpose. We respectfully adopt the judge's reasons on these matters. These grounds of appeal have not been established."

I conclude that the reference to "the conduct of the defendant" in the definition of "date of discoverability" is a reference to the alleged conduct which is the subject of the claim or prospective claim and not merely a reference to the bare act or omission from which injury resulted. In other words, it is a reference to the alleged wrongful conduct.

The definition of "date of discoverability" – What are the characteristics of the plaintiff which may be taken into account in considering what the plaintiff "ought to have known"?

There is another matter regarding the interpretation of "date of discoverability" which needs to be addressed. The definition imports the concept of constructive knowledge by the inclusion of the words "or ought to have known".

As to the test to be applied counsel for the defendant referred to a decision of the New South Wales Court of Appeal in Commonwealth of Australia v Smith (2005) NSWCA 478. Under consideration was the New South Wales Limitation Act 1969, s60I(1) which is set out in the passage from Commonwealth v McLean (supra) quoted earlier in these reasons.

Santow JA said at par103:

"The capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, must be judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable man; Telstra Corporation v Rea [2002] NSWCA 49. That case stands as authority for the proposition that what a person 'ought' to know or be aware of for the purposes of s60I(1)(b) must necessarily take account of the circumstances of the particular applicant. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances."

He noted that in the United Kingdom in the context of constructive knowledge for the purpose of limitation legislation the actual qualities of the person concerned were only relevant if they went to the capacity to discover facts. Characteristics which went only to the inclination to discover facts were to be disregarded. The United Kingdom position was against what had earlier been decided by the New South Wales Court of Appeal in Telstra Corporation v Rea [2002] NSWCA 49. Santow JA said at par110:

"In the United Kingdom, under differing legislation, the limitation periods are extendable by reference to a test which, while likewise not wholly objective, is less accommodating to plaintiffs than that applied in New South Wales. According to Adams v Bracknell Forest Borough Council [2005] 1 AC 76, a personal characteristic such as shyness inhibiting a person seeking knowledge about his injury would not preclude constructive knowledge of what that advice would have revealed, had it been sought. By contrast, Telstra Corporation v Rea (supra) held that in New South Wales, personal characteristics of such a kind are relevant. The plaintiff, to avoid constructive knowledge, must have taken all such action as it was reasonable for him to take, taking into account not only any mental impairment but also his personal characteristics and circumstances." [original emphasis]

However, Basten JA in his minority judgment, adopted the approach taken in the United Kingdom. He concluded that a failure to acquire knowledge must not merely be explained, it must be justified. He said at pars186 and 187:

"In Adams, Baroness Hale of Richmond cited a conclusion reached by the Law Commission (UK) in its consultation paper 'Limitations of Action' (LCCP 151, 1998) at par 12.54:
'As it is fairer to plaintiffs and would not create significant extra uncertainty, we also consider that the test for constructive knowledge should contain a large subjective element: what ought the plaintiff, in his circumstances and with his abilities, to have known had he acted reasonably? The question should not be what a reasonable person would have discovered, but what the plaintiff himself would have discovered if he had acted reasonably. The personal characteristics of the plaintiff, such as his or her level of education and intelligence, and the plaintiff’s resources, would therefore be relevant to the question whether the plaintiff acted reasonably ... A number of the employment-related personal injuries cases have involved plaintiffs in unskilled manual jobs having little education. ... Conversely, in cases where the plaintiff has some degree of expert knowledge which should have caused him to appreciate facts at an earlier stage than would have been appropriate for the average person, that knowledge should be taken into account to advance the date of discoverability.'

After considering differences of approach taken by English courts in relation to the subjective circumstances of applicants, Baroness Hale concluded at [88]:
'I wonder, therefore, how much difference there is in practice between the two approaches. We are not here concerned with knowledge that the claimant might reasonably have been expected to acquire from facts observable or ascertainable by him. We are concerned with knowledge he might reasonably be expected to acquire with the help of medical or other advice which it is reasonable for him to seek. The question is when is it reasonable to expect a potential claimant to seek such advice? Objectively it will be reasonable to seek such advice when he has good reason to do so. This will depend upon the situation in which the claimant finds himself, which includes the consequences of the accident, illness or other injury which he has suffered. Rarely, if ever, will it depend upon his personal characteristics. If, faced with a situation in which it is reasonable to seek advice, a person fails to do so, then the fact that he was reluctant to make a fuss, or embarrassed to talk to his doctor, while understandable, does not take him outside the subsection.'

In my view this approach sits comfortably with the language of s60I(1)(b). The circumstances and characteristics of an applicant may well explain why he or she did not ask a question or seek advice at a particular time. The term 'ought' requires more than explanation – it requires justification. That additional element requires a standard, not a mere description of the characteristics and circumstances of the individual which led to the failure to inquire."

Basten JA applying the United Kingdom approach unlike Santow JA (with whom Handley JA agreed) would have allowed the appeal and set aside the orders made by the primary judge. He said at pars199 and 200:

"This evidence appears to identify a personal characteristic of the Applicant which explains, at least in part, why he may not have sought expert diagnosis until persuaded by his solicitor in mid-1999. However, the evidence does not demonstrate that this was an element of his mental impairment. Had it done so, that would have been a material consideration.
In my view the Applicant has not established that the application was made within three years after the time at which he ought to have become aware of the fact that he had suffered a personal injury of the kind identified in the statement of claim. Accordingly he has not satisfied the Court as to the matters identified in s 60I(1)(b)."

An application for special leave to appeal was brought in the High Court. It was refused on the ground that "any appeal would enjoy insufficient prospects of success to warrant a grant of special leave". Commonwealth of Australia v Smith (2006) HCA Trans 242 (19 May 2006).

As pointed out earlier the concept of constructive knowledge in the New South Wales Limitation Act 1969, s60I(1)(b) operates only in the context of provisions conferring on the Court a discretion to extend time. It is concerned with whether or not a discretion exists and not with how it is to be exercised. Where a plaintiff has means of knowledge at his or her disposal, but nonetheless is able to satisfy s60I(1)(b) the fact that knowledge could have been acquired remains an important consideration in the assessment of how the discretion is to be exercised. In CRA Ltd v Martignago (1996) 39 NSWLR 13, Clarke JA said at 19:

"If the plaintiff establishes that he or she was unaware of the relevant fact and satisfies the condition in par(b) … he or she will be entitled to ask the court to exercise its discretion in favour of the making of an order. That does not mean that the fact that the plaintiff had the means of knowledge at his disposal, such as the master held was the situation in this case, would not be relevant. In my opinion it would be a highly relevant matter for consideration in the exercise of discretion."

The context in which constructive knowledge is to be considered in the Tasmanian Act is significantly different to that considered in the New South Wales cases. In Tasmania "date of discoverability" is not merely relevant for the purpose of ascertaining whether or not a discretion to extend time exists. The date of discoverability is the date upon which the limitation clock is set running under the Act, s5A(3). It is in this broader context that the question of constructive knowledge was considered in the United Kingdom by the House of Lords in Adams (supra). It is because of this I prefer the United Kingdom test.

Accordingly, on the question of constructive knowledge I consider the proper approach to be as follows:

(a)Firstly, consideration needs to be given to when objectively it would be reasonable to expect medical or other advice to have been sought relating to the date of discoverability feature under consideration.
(b)Secondly, whether, if at that time, advice had been sought it would have resulted in the plaintiff acquiring the relevant knowledge.
(c)Thirdly, if a plaintiff has characteristics which affect his or her capacity to acquire relevant knowledge the "date of discoverability" will be the date upon which it might reasonably have been expected that the relevant knowledge would have been acquired having regard to these characteristics.
(d)Fourthly, characteristics of a plaintiff which only go to his or her inclination to acquire relevant knowledge will not be taken into account.

In the ordinary case where a defendant pleads a limitation defence it will be for the defendant to prove the date of discoverability for the purpose of showing that it arose more than three years before the writ issued. However, here the onus is on the plaintiff as she is the one asserting that the date of discoverability was within three years of the date of the issue of the writ. She must establish that the date of discoverability was within three years otherwise she will not have persuaded the Court that it has jurisdiction to exercise a discretion to extend time to the date of the issue of her writ, namely to 23 November 2001.

The facts

As noted at the outset the Act, s38A(1) provides that a person who has a cause of action which accrued before the commencement day may apply for an extension of time to three years commencing on the date of discoverability. The commencement day was 1 January 2005. The cause of action accrued before that date. Accordingly, the only threshold question which needs to be decided to determine whether or not there is jurisdiction to extend time to the date of the issue of the writ is whether the date of discoverability was within three years of the date of issue, namely, within three years of 23 November 2001. The onus is on the plaintiff to show that she neither knew nor ought to have known of the date of discoverability features prior to 23 November 1998.

The plaintiff obviously knew that she had suffered from material side effects as a result of the drug therapy commenced by the defendant well before 23 November 1998. Her claim is based on the proposition that there would have been no injury had the defendant not diagnosed the existence of a pituitary tumour as alleged. The plaintiff says that she first found out that her MRI results did not support a diagnosis of a tumour and she had never had a pituitary tumour when she was so told by an endocrinologist in Melbourne on 26 November 1998. Assuming this to be correct the plaintiff would still need to establish that the facts that her MRI results did not support a diagnosis of a tumour and she had never had a tumour were not facts which she ought to have known of prior to November 1998.

In order to assess the plaintiff's contentions it is necessary to have a detailed knowledge of the plaintiff's dealings with the defendant and other doctors starting with her referral to the defendant by her general medical practitioner in late 1993. The facts and evidence about these dealings, which I set out below are unless otherwise stated taken from material which was not disputed. I have included in the chronology an occasional comment of my own where I think it might assist in understanding the evidence or its significance.

I do not set out every detail or every dealing. The evidence at the hearing was extensive and it is neither practical nor necessary to set out the medical history in full. The fact that a particular consultation or a particular detail of a consultation has been omitted in this chronology should not be taken as indicating that it has been overlooked or considered irrelevant. The purpose of the chronology is simply to give a sufficient overview to enable my reasoning on the question of "date of discoverability" to be understood.

The chronology is as follows.

In 1993 the plaintiff was aged 18 years. Her date of birth being 1 August 1975.

On 10 December 1993 the plaintiff consulted a general practitioner, Dr Gregory Booth, at the Northgate Medical Practice. She complained of persistent galactorrhoea (inappropriate lactation) and irregular periods despite being on the pill. The plaintiff says that at that consultation she also complained to Dr Booth of headaches and nausea, but Dr Booth has neither a note nor a recollection of the complaints of headaches and nausea. He arranged for the plaintiff's prolactin level to be tested. Prolactin is a hormone produced by the pituitary gland in the brain.

On 13 December 1993 the pathology results were returned showing that the plaintiff had an abnormally high prolactin level and a negative pregnancy test.

On 15 December 1993 Dr Booth wrote a letter of referral to the defendant, endocrinologist, Dr Hoffman, explaining that the plaintiff complained of galactorrhea and irregular periods, enclosing the pathology results and enquiring whether her hyperprolactinaemia required investigation.

Under cross-examination by counsel for the plaintiff Dr Booth explained:

"… when I sent Kylie off I may well have certainly said to her, when she very first went to Dr Hoffman, that we were trying to exclude a pituitary tumour, because that is why she was sent. I mean, the whole rationale for sending her to a specialist is that here’s someone with some blood abnormalities, some physical signs, and we need to exclude a pituitary tumour." [transcript p473]

The plaintiff first saw Dr Hoffman on 19 January 1994. At that meeting Dr Hoffman produced a drawing of a female figure and wrote some explanatory notes on the drawing as she explained things during the course of the consultation. The drawing showed the location of the pituitary gland. The drawing had written on it the word "parlodel" next to two arrows. One arrow pointed to the words "lower prolactin" and the other arrow pointed to the words "shrinks area of overreacting in the pituitary". The drawing contained a note as to the dosage of parlodel which the plaintiff was to take; a note requesting the plaintiff to have a further blood test in about a month's time and to see Dr Hoffman again at the end of February. Dr Hoffman referred the plaintiff for an MRI. There was discussion at that consultation of the plaintiff's family medical history including reference to the plaintiff having a cousin suffering from an occipital brain tumour.

One of the defendant's witnesses, Dr Thomas Foley, was cross-examined as to the words on the drawing "area of overreacting in the pituitary" and the transcript at p337 records:

"if there was an identifiable area of over activity in the pituitary that would constitute a tumour.……………That’s correct."

On the same day as the consultation, namely, 19 January 1994, Dr Hoffman sent a letter to Dr Booth concerning the plaintiff which included the following:

"Thanks for asking me to see Kylie with mild hyperprolactinaemia, galactorrhoea and a strong family history of thyroid problems plus maternal cousin with what sounds like an occipital brain tumour.
…
She will have an MRI, commence Parlodel working up to 2.5mg tablets ½ am and 1 pm. I have suggested review in 4 weeks or before if necessary."

The plaintiff says in her affidavit that Dr Hoffman told her that she "had developed a pituitary tumour" and "Following her diagnosis, Dr Hoffman commenced me on medication which initially consisted of bromocriptine and parlodel". The plaintiff's parents both said in their affidavits that the diagnosis of a pituitary tumour was given at a consultation at which they were present where the diagram to which I have referred was produced.

The diagram contained the words "Blood test in 1 mth (3^rd wk in Feb) Salamanca Pl and see Dr H end Feb". Obviously these words would not have been written at the second consultation which was in the fourth week in February. There is no evidence that the drawing was discussed at more than one consultation. However, in cross-examination as to when the alleged diagnosis of a tumour was made the plaintiff said that the diagnosis was made at the second consultation. The transcript at p43 records the following:

"All right, thank you. Now I want you to tell me, as best as you can recall, exactly what Doctor Hoffman said at that time?………In relation to the pituitary tumour?
Yes. When she told you, as you say in paragraph seven, that you had a pituitary tumour……..To the best of my recollection, there was myself and my parents in her consulting rooms. She said -
Well that’s not what she told you. Can you tell me what she told you……..Doctor Hoffman advised that I had a pituitary tumour. She then explained where this would be located. I then asked how big this tumour was. She explained to me with the pen, 'the tip of this pen is the approximate size of this tumour'. From then onwards I can’t say her exact words. But I do remember that as clear as anything.
Now – so you don’t recall what else was said?……..Not word for word. I do remember asking questions because my cousin has – from a brain tumour.
You’d told Doctor Hoffman that in the first consultation, hadn’t you?…….I cannot say that for certain. I remember it being raised with Doctor Hoffman, but I cannot confirm which – when it was that.
Now you started taking Parlodel straight after the first consultation, didn’t you?……..I believe so.
That’s what’s on the document?……..Yes.
So when you say in paragraph seven –
'Following her diagnosis, Doctor Hoffman commenced me on Parlodel.'
That’s not right?……..I believed it was the second appointment I was told, and that’s when I commenced medication."

This assertion that the diagnosis was made at the second consultation does not sit well with the parents' evidence about the diagnosis being made when the diagram was produced. Nor does it sit well with the plaintiff's evidence that the diagnosis was made at the consultation where the cousin's brain tumour was discussed and parlodel prescribed. This is because according to Dr Hoffman's letter to Dr Booth of 19 January 1994, both of these things occurred at the first consultation, that is the January consultation. On the other hand, a diagnosis at the first consultation does not sit well with the facts that an MRI was yet to be obtained and there was no mention of a diagnosis in the letter from Dr Hoffman to Dr Booth of 19 January.

Dr Hoffman denies providing the plaintiff with a diagnosis that she was suffering from a pituitary tumour at any consultation. At the first meeting there was not an MRI available. The first MRI was not received by Dr Hoffman until February 1994. Dr Hoffman said in her affidavit at par12:

"At no time did I ever advise the Plaintiff that she had a pituitary tumour (the MRI scan of 18^thFebruary, 1994 made it plain that she had no such tumour, and the continuing non-existence of any MRI tumour was confirmed by repeat MRI in August 1994). It is quite possible that at the initial consultation on 19^th January, 1994 I advised the Plaintiff that pituitary imaging was necessary as part of investigation of her hyperprolactinaemia since pituitary tumours are one potential cause. If I did give that indication to the Plaintiff it would have been as part of explaining to her that there are many potential causes of hyperprolactinaemia."

An MRI is not an insignificant procedure. The plaintiff provided the following description:

"Did you take the whole day off to have an MRI scan?……Yes, I did.
Why?……The MRI scans weren’t the most lovely thing, I don’t know what word to use, to go through. They weren’t just walking in and popping a pill or standing on scales you were pushed into a machine injected with dye halfway through …".

On 18 February 1994, radiologist, Dr Alcock, provided a report in relation to the MRI which Dr Hoffman had ordered. The report under the heading "Clinical History" included the question "Is there evidence of a pituitary adenoma?" Under the heading "Conclusion" the report said "No lesion is detected within the pituitary gland".

As to what is meant by adenoma Dr Foley said:

"fundamentally a tumour that arises from a gland is an adenoma" [transcript p336]

The meaning of the word "adenoma" was also the subject of evidence given by endocrinologist Dr Robin Murray. The transcript at pp142 and 143 includes the following:

"But what does pituitary micro adenoma mean?……….Micro adenoma is an arbitrary definition distinguishing from macro adenoma.   A macro adenoma is by definition greater than a centimetre across, micro adenoma is by definition less than a centimetre across and it’s an abnormality, a collection of cells, if you want to put it that way -
Yes…that shows up on an MRI or a CAT scan.
And is this confined to the pituitary gland or is that just a general term?……….Adenoma is a general term, adenomas can be anywhere and presumably they can be micro but they’re not necessarily described as such.
So it’s only if it connection [sic] with the pituitary gland that you have the micro/macro distinction, is it, or … Generally speaking I would say that, yes.
…
Now when you refer to tumour, what does that mean?……….That’s very similar, I mean an adenoma can be benign or malignant and a tumour can be benign or malignant.
Right.   And how common is it for a tumour in the pituitary to be malignant?……….Very, very rare.
So if a - well tumour is just another word for micro adenoma, is it?……….You could use it, yes.
Yes.   And what’s the usual treatment for that?……….Well in the past micro adenomas weren’t diagnosed unless they were secreting a hormone.   The commonest hormone they secrete is prolactin and if you have excessively high prolactin levels it interferes in some instances with fertility and menstrual cycle and that sort of thing.   But if the micro adenoma’s not secreting anything it’s not necessarily diagnosed because it doesn’t do anything, in fact it’s said at autopsy ten percent of women have a micro adenoma in their pituitary which no one knew about."

On 23 February 1994, a pathology report was sent to Dr Hoffman to the effect that a blood test taken on the same day showed that the plaintiff continued to have an abnormally high prolactin level.

On 24 February 1994 the plaintiff returned to see Dr Hoffman. On the same day Dr Hoffman sent a report to Dr Booth which included:

"… MRI was normal but I have explained to Kylie our diagnosis is a small area of prolactin hypersecretion which clearly from her prolactin of 716 is an ongoing problem. She stopped Parlodel after 2-3 days because of dizziness and nausea.
I have discussed the pros and cons of taking no medication versus trying again with Parlodel and she is willing to try ½ of a 2.5mg nocte and see me in 3 months in view of the positive effects of Parlodel on prolactin hypersecretion, and her breast symptoms." [emphasis added]

As to what is meant by "a small area of prolactin hypersecretion" and whether parlodel was necessary there was some evidence from Dr Murray in cross-examination. The transcript at p154 records:

"And if you’d look at the third line:
But I have explained to Kylie our diagnosis is a small area of prolactin hyper secretion.
What does that mean?……I’m not sure what that means, unless it means micro adenoma.   I mean that would be a small area, if it implies that one can see an area - maybe not - but to me - and so it would be a collection of cells that were hyper secreting.
Mm.   Is hyper secreting overproducing -……Prolactin - yes.
- prolactin?……Yes.
Yes, and her conclusion is that - at 717, that’s an ongoing problem.……I have patients who are wandering around that they also test 800 in 2000 without any problems.
Now she notes that Parlodel had been stopped and then she says that she discussed no medication compared with trying Parlodel again.    Now it’s not inappropriate, in the circumstances of the findings, to do that, is that?……To discuss it?
Yeah, and to - well obviously, she goes on to say that the patient is willing to try -……Right.
- the Parlodel again.   Now -……Well I think it’s a cost benefit situation, the cost being the nausea and the dizziness that she was experiencing on a low dose against the possible benefit of improvement in the breasts and things.
Yes.   And that’s a matter for the patient to choose?……For the patient to choose, yes.
Yes.……Yes."

Dr Hoffman did not agree that in her letter of 24 February her reference to "a small area of prolactin hypersecretion" was a reference to a micro adenoma. The transcript of her evidence includes at p513:

"And you at that time had a view that in the plaintiff’s pituitary gland there was an area that was causing prolactin hypersecretion?……Prolactin hypersecretion only comes from the pituitary gland.
Yes……..Yes.
And your view as at the 24th February was that there was an area in the pituitary gland that was causing hypersecretion of prolactin?……From my letter I surmise that when I say area I’m talking about the pituitary itself.
Yes……The anterior lobe of the pituitary is the area where prolactin is made.
Oh so you’re saying all that means is the pituitary?……Yes, the anterior lobe of pituitary, but -
So why didn’t you say in the letter, 'I’ve explained to Kylie that her pituitary gland is producing excessive prolactin'?…….I can’t tell you the exact words I used. I probably used slightly different words, I would imagine, because one would not used the word hypersecretion to a patient, one would say over-secreting.
Yes…….So whilst I’ve said, 'I have explained our diagnosis is', I cannot be sure that those were the words that were used verbatim, but area means pituitary or anterior lobe of the pituitary, which is the part that makes prolactin, and prolactin hypersecretion gives the view that there is high prolactin being made in the pituitary gland.
So is your evidence that you didn’t distinguish between an area in the pituitary producing excessive prolactin and the pituitary itself when you were talking to the plaintiff?……No, nobody can provide evidence to where the excess prolactin is coming from, it is impossible to determine by any means whether all of her pituitary or the part of the anterior lobe of the pituitary is the cause from the evidence found, so –".

On 10 March 1994 the plaintiff presented at the Northgate Medical Practice. She complained that for the preceding two weeks she had been vomiting and it was noted by the doctor who saw her that she was on parlodel. Although it is unclear from the medical notes it appears that it was suggested that the plaintiff return to see Dr Hoffman.

The plaintiff did return to see Dr Hoffman on 23 March 1994 concerning her nausea and inability to tolerate parlodel. Dr Hoffman decided to try the anti-nausea drug maxolon against the possibility that this might increase the prolactin secretion in the pituitary gland and exacerbate the problem with galactorrhoea. Dr Hoffman's report to Dr Booth dated 23 March 1994 was as follows:

"Kylie came back today tolerating Parlodel poorly and she has been off this a week. Clearly the hyperprolactinaemia is likely to be an ongoing problem and our options are medication for nausea with Parlodel which she will persist with. If however Moxolon [sic] or Stemetil increase her prolactin this may exacerbate her breast symptoms and not be of benefit and should be ceased. Option number two would be asking her usual chemist to provide her with a Parlodel suppository and would be worth thinking about. Failing this Kylie will have to stop Parlodel if it is not tolerated in any form. She should have prolactin monitored 3 monthly and unless it is rising dramatically, the timing of the next MRI should be February 1995 and she will see you in the interim as necessary."

On 28 March 1994 the plaintiff presented at the St Helen's Hospital, Accident and Emergency Department. She had injured her hand playing netball. The history which she gave at the hospital as taken by the treating doctor there and noted on the hospital record according to an interpretation of the note given by Dr Foley includes the following:

"‘subjective – query prolactin adenoma, MRI negative Doctor Hoffman’"
[transcript p335]

On 19 May 1994 the plaintiff returned to see Dr Hoffman for the three monthly review as arranged at the February 1994 consultation. Dr Hoffman's letter to Dr Booth of the same date was as follows:

"Kylie is now tolerating Parlodel 1 daily with Maxolon. As Maxolon increases prolactin I have asked her to try Parlodel ½ daily without and just go back onto the Maxolon if she has to. Prolactin will be checked now and then in August on the lower dose and I have suggested review in September with repeat MRI prior. Irregular periods continue and she is going to take Microlut for contraception."

Despite the suggestion for a review by Dr Hoffman in September 1994 the plaintiff did not see Dr Hoffman in her rooms again. The only other meeting which the plaintiff had with Dr Hoffman was a chance meeting at the Royal Hobart Hospital in October 1995.

The plaintiff did, as had been requested by Dr Hoffman, submit to a further MRI in August 1994.

The report of radiologist, Dr Marshall, of 15 August 1994 regarding the August MRI included under the heading "History" the words "Hyperprolactinaemia. Normal pituitary MRI February 1994." Under the heading "Report" Dr Marshall said "There is no radiological evidence of a pituitary micro-adenoma".

Although the plaintiff went to the trouble of submitting to the further MRI in August 1994 she did not enquire about the outcome. She did not return to the Northgate Medical Practice until 17 November 1994 and that was due to a concern that she was pregnant. She saw Dr Clive Poynton who noted a history of nausea and dizziness over the past two weeks. She did not then ask about the results of the August MRI.

The plaintiff says that Dr Hoffman told her that "as a result of my condition and/or the medication which I was taking for it I could not become pregnant". This allegation, however, is inconsistent with Dr Hoffman's letter to Dr Booth of 19 May 1994, set out earlier in this chronology where Dr Hoffman said to Dr Booth "she is going to take Microlut for contraception".

On 20 November 1994 the plaintiff was seen at the Royal Hobart Hospital Accident and Emergency Department. She complained of suffering from vomiting over the preceding five days. She had also just discovered that she was pregnant.

On 24 November 1994 the plaintiff returned to Dr Poynton. Dr Poynton wrote a referral for a termination of pregnancy.

On 25 November 1994 the plaintiff was seen by obstetrician, Dr Murray-Arthur at the Royal Hobart Hospital. He made a note including:

"Earlier in the year diagnosed with pit … tumour. Now she is pregnant and has been taking parlodel.
… vomiting for 9 days.
…
I recommend termination of pregnancy to prevent deterioration in her medical condition."

On the same day, namely, 25 November 1994, Dr Murray-Arthur telephoned Dr Hoffman at her rooms. The possibility of a termination of pregnancy was discussed.

The plaintiff's statement of claim includes an allegation that at that meeting Dr Murray-Arthur advised her that the effect of taking parlodel was "that the baby would probably be born with severe deformities and pregnancy should therefore be terminated". The defendant in response pleaded that if such advice had been given by Dr Murray-Arthur it was wrong as parlodel did have in 1994 and still has "Category A status for use in pregnancy". That is to say, that parlodel can safely be administered to pregnant women.

On 25 November 1994 a form signed by Dr Murray-Arthur was sent to Dr Hoffman by facsimile transmission for her to sign and return. The form as originally typed said that termination of the pregnancy was recommended to "prevent a substantial detriment to the physical and mental health of the mother". However, the form when signed had the words "physical and mental" crossed out with the handwritten words "mental wellbeing" inserted in their place. The form accordingly read:

"I … recommend termination of pregnancy because in my opinion termination will prevent a substantial detriment to the mental wellbeing health [sic] of the mother."

There is no suggestion that at about the time of the termination of the pregnancy the plaintiff enquired about the result of the August 1994 MRI to which she had submitted.

On 28 November 1994 an operation terminating the pregnancy was performed and on 29 November 1994 the plaintiff was discharged from hospital.

Soon after the termination of pregnancy the plaintiff fell pregnant again. This pregnancy went full term. There is no evidence of the plaintiff consulting any medical practitioner about the possible effects her past consumption of parlodel may have had in relation to this pregnancy.

On 9 October 1995 the plaintiff was admitted to Royal Hobart Hospital for the birth of her daughter Crystal. The history, presumably given by the plaintiff (there being no objective source), noted on the obstetrics division records is "enlarged pituitary gland …".

Whilst at hospital shortly following the birth of Crystal the plaintiff says that she happened to see Dr Hoffman. The plaintiff's evidence is that at time Dr Hoffman advised that it was safe to breast feed whilst using parlodel. Dr Hoffman has no recollection of that meeting. There is no evidence from the plaintiff or from any other source to suggest that the plaintiff enquired about the result of her August 1994 MRI.

The plaintiff was discharged on 13 October 1995. The hospital's discharge notes under the heading "comments" include: "Kylie has a pituitary disorder that requires further follow-up."

On 8 December 1995 the plaintiff presented with her baby Crystal at the Northgate Medical Practice where Crystal was seen by Dr Margaret Williams. Dr Williams then noted a history that the mother "has a pituitary tumour".

On 1 April 1996 the plaintiff underwent another MRI. The report of radiologist, Dr Peter Davies, of the same date includes under the heading "History" "Prolactinoma with previously normal MRI's". Under the heading "Comment" the report says "There is no evidence for a pituitary micro-adenoma".

On 24 April 1996 the MRI report of 1 April 1996 was sent by facsimile transmission to Dr Booth at the Northgate Medical Practice.

On 27 May 1996 the plaintiff was seen by Dr Booth. Dr Booth in his affidavit said that at that time he advised the plaintiff that her MRI was normal and provided her with a repeat prescription for parlodel. Paragraph 4 is as follows:

"After the consultation of 2^nd August, 1994, the next occasion upon which I saw Kylie was 27^thMay, 1996. By then there was on her file the result of an MRI scan of the pituitary fossa that had been undertaken on 1^st April, 1996. A copy of the report on that scan is annexed to this Affidavit and marked 'H'. It concluded that there was 'no evidence for a pituitary micro-adenoma' (micro tumour). No abnormality of any kind, other than a variant of normal, was noted on that scan.
When Kylie consulted me on 27^thMay, 1996 I advised her that the pituitary MRI scan of 1^st April, 1996 was normal and I provided her with a repeat prescription for Parlodel, medication on which Dr Hoffman had started her following my initial referral."

The plaintiff said under cross-examination:

"I suggest to you that you were told that the MRI was normal?…Again, if I was told the MRI was normal I would remember that, as I was told by Dr Murray, that the MRI was normal and I didn’t have anything. I clearly remember that day. I do not remember a day in ’96 that I was told everything was okay otherwise I wouldn’t have gone back and seen these specialists for something I didn’t have."

The Northgate Medical Practice notes for 27 May 1996 include a note "MRI normal, Rpt Parlodel".

On 28 June 1996 the plaintiff was seen by Dr Poynton at the Northgate Medical Practice. He made a note that the plaintiff had started taking Parlodel again and was suffering from nausea.

On 10 December 1996 the plaintiff brought her baby Crystal into the Northgate Medical Practice and saw Dr Booth. Dr Booth made a note on Crystal's medical records on the same page that Dr Williams had recorded on 8 December 1995 that the plaintiff had a pituitary tumour. Dr Booth, however, said nothing about the inappropriateness of that record to Dr Williams or the plaintiff.

Sometime in 1996 or 1997 the plaintiff ceased taking parlodel.

In mid-1997 the plaintiff was transferred in her employment and moved to Shepparton in Victoria. Shepparton is about a two hour drive from Melbourne.

In late 1997 or early 1998 the plaintiff saw general practitioner Dr Pedrotti in Shepparton. The plaintiff told him of the pituitary problem she had had in Tasmania and also complained of suffering headaches. Dr Pedrotti referred the plaintiff to Melbourne based endocrinologist, Dr Robin Murray. Dr Pedrotti in his letter of referral said:

"Thank you for seeing Kylie Weir, a twenty two year old woman with a history of hyperprolactinaemia investigated elsewhere. She was taking Parlodel but stopped this six months ago because of nausea and since then has noticed headaches, blurred vision, hair loss and galactorrhea."

The plaintiff took the two hour drive from Shepparton to Melbourne and saw Dr Murray in his rooms on 15 January 1998. Dr Murray took a history from the plaintiff and "arranged for an MRI scan, measurements of her pituitary hormones and blood tests". At about the same time he wrote to Dr Hoffman seeking details of previous investigations and treatment. However, he incorrectly addressed the letter and it ended up going on to the Royal Hobart Hospital file without the Royal Hobart Hospital passing it on to Dr Hoffman.

On 19 January 1998 the plaintiff presented at the Peter MacCallum Cancer Institute in Melbourne to undergo the MRI arranged for her.

The Royal Hobart Hospital in response to Dr Murray's letter to Dr Hoffman sent to Dr Murray a copy of the MRI report dated 15 August 1994. As indicated earlier in these reasons that report under the heading "History" said "Normal pituitary MRI February 1994". Under the heading "Report" it said "There is no radiological evidence of a pituitary micro-adenoma".

Dr Murray received the report for the MRI which he had ordered and the other test results. The MRI revealed no abnormality. The blood test showed that the plaintiff's prolactin level was within the normal range.

On or shortly before 4 February 1998 Dr Murray telephoned the plaintiff and told her that she did not have any pituitary problem at that time. In particular, according to a letter which Dr Murray wrote to the plaintiff's solicitor on 27 January 1999 informed the plaintiff "that the current investigations did not support the diagnosis of a pituitary tumour or hyperprolactinaemia".

On 4 February 1998 Dr Murray wrote to Dr Pedrotti in the following terms:

"Just to let you know that results of Kylie Weir's tests showed a perfectly normal pituitary and brain MRI without any sign of a pituitary microadenoma at all. At the same time all of her hormones came back completely normal including prolactin. Thus at this stage she clearly does not have a pituitary problem. It is still unclear to me as to whether or not she really did have one in fact in Tasmania as we obtained one of the original MRIs from Tasmania and this also was completely normal. However Dr Linda Hoffman who she saw there has not replied to my letter about her previous hormonal levels.
I have reassured Kyle that she does not have an adenoma or any pituitary problem at this stage and that the reasons for her headache are not clear. I have suggested that perhaps a neurological opinion would be of value. She was initially quite distressed by the finding that we had found nothing, however with thought she realised in fact that this was good news although she remains puzzled by what she was told in Tasmania.
I have not made another appointment to see Kyle but would be more than glad to do so should you feel this appropriate at any stage." [emphasis added]

Dr Murray was cross-examined about what he told the plaintiff over the telephone on about 4 February 1998. He said:

"I think I rang because there’s no letter or copy of any letter and no note, so I - when I got the MRI, I would have rung her and said, 'Your MRI is clear, your prolactin is normal, you don’t have pituitary problem,' and we didn’t make a further appointment. She came from Shepperton, which is a bit out of Melbourne and there seemed little point in bringing her back just to repeat."

On 26 November 1998 the plaintiff went back to see Dr Murray. This was not at Dr Murray's instigation. The plaintiff complained of continuing headaches. Dr Murray told the plaintiff once again that she had no pituitary problem. He considered that the headaches may have been migraine related. He referred the plaintiff to Dr Richard Stark for neurological assessment. In his affidavit at par8, Dr Murray said:

"As stated above, I subsequently saw the Plaintiff on the 26^th of November 1998. At that time, I discussed with the Plaintiff the results of all the MRI's she had undergone for which I had results including those carried out in Tasmania and those carried out at the Peter MacCallum Institute in Victoria and I also discussed with her the prolactin findings. I informed her then that the results of the tests which I had arranged and the reports which I had received, including the Tasmanian ones, did not support the diagnosis of a pituitary tumour and it was my view that she had never suffered from one. I then referred her to Dr Richard Stark for neurological assessment of her headaches."

The plaintiff returned to see Dr Murray on 10 December 1998, but there is no evidence of what occurred at this consultation.

In January 2003 the plaintiff saw psychiatrist, Dr Paoletti, at the request of her solicitors. Dr Paoletti took from the plaintiff a history. In that history there is reference to only one meeting between the plaintiff and Dr Murray. It is possible that when speaking with Dr Paoletti the plaintiff rolled into one the February telephone call and November consultation which she had had with Dr Murray. The history taken by Dr Paoletti included the following:

"After an appointment, Dr Murray called back 'straight away' and they [Mrs Kaye and her parents] feared the worst. However, he told them that he 'couldn't find a lesion', nor trace of a past lesion. Apparently, he told her that, even if receded by treatment, if there had been a lesion, it would have left scarring or traces of some kind. He had got a second opinion on the MRI, in agreement with his."

The plaintiff had an appointment with Dr Stark on 17 December 1998. On the same day she consulted a solicitor for the first time. She said in her second affidavit at par4:

"Also on the 17th of December 1998, I consulted a solicitor, Mr Nick Galatas, of GPZ Lawyers, now known as GPZ Legal. I made the appointment with Mr Galatas on or about the same time that the appointment was made with Dr Stark after seeing Dr Murray on 10 December 1998. I wanted to see a solicitor about my rights against Dr Hoffman not only because Dr Murray had told me that I was not suffering and had never suffered from a pituitary tumor [sic] but also because I understood from Dr Murray's comments and his attitude when informing me about his views of what Dr Hoffman had done that he thought she had not treated me properly."

Actual knowledge

In order to satisfy the Court that it has jurisdiction to extend time to the date of the issue of the writ the plaintiff must show that the date of discoverability was within three years of the issue of the writ, namely, within three years of 23 November 2001. The plaintiff does not dispute that she knew that she had suffered material side effects as a result of the intake of parlodel from the time she commenced taking it in early 1994. She contends, however, that she neither knew nor ought to have known that her MRI results did not support a diagnosis of a tumour and she had never had a tumour until her consultation with Melbourne endocrinologist Dr Murray on 26 November 1998. Accordingly, the question which must first be determined is whether in fact 26 November 1998 was the first time when the plaintiff actually had knowledge of that which she alleges, namely, whether 26 November 1998 was the date upon which the plaintiff discovered that the alleged diagnosis of a tumour was wrong.

The relevant part of Dr Murray's evidence which I have recorded in the chronology in these reasons does not indicate that Dr Murray had earlier told the plaintiff that she had never had a tumour. He spoke with her by telephone in February 1998 to tell her that the tests which he had arranged in January 1998 showed that she had no pituitary abnormality. There was no reason for him to give advice for treatment purposes that there never had been a tumour. Dr Murray said in his affidavit in the passage which I have quoted in the chronology that it was at the consultation on 26 November 1998 that he told the plaintiff that the reports which he had received including the Tasmanian ones did not support a diagnosis of a tumour and that it was his opinion that she had never had a tumour. As counsel for the plaintiff said, Dr Murray was a treating medical specialist with no personal connection with the plaintiff. I have no reason to doubt his evidence.

In cross-examination the plaintiff said that she specifically remembered being told in November 1998 that she had never had a tumour. I set out an extract from the transcript at p604:

"And you see what he says in his affidavit about the fact that he wouldn’t have written that if he hadn’t in fact reassured you?…Yes, I have seen that, yes.
Yes. And that was written on the 4^th of February 1998?…Yes.
Now, that would seem to accord with what you told Dr Paoletti that Dr Murray spoke to you immediately or straightaway?…I don’t remember the conversation with Dr Murray but if that’s what’s in those affidavits, yes.
Right. Well, I put to you that in fact you were told by Dr Murray in February 1998 that you did not have a pituitary tumour?…Going by the evidence it seems that Dr Murray did tell me early in ’98 that I did at that stage not have a tumour.
So, you accept that?…I accept that’s possible, yeah.
MASTER: Or do you dispute it? Do you dispute that Dr Murray told you in February 1998 you didn’t have a tumour?
WITNESS: It is possible. I can’t remember the conversation but I do remember the November night when he said, I don’t and never have had." [emphasis added]

The plaintiff decided to seek legal advice about the possibility of recovering damages from the defendant. She did not see a solicitor after the February 1998 telephone conversation with Dr Murray, but she did see a solicitor shortly after the consultation with Dr Murray on 26 November 1998.

Further evidence supporting the plaintiff's assertion that she was not told over the telephone in February 1998 that she had never had a tumour is contained in the letter from Dr Murray to Dr Pedrotti of 4 February 1998 referred to in the chronology in which Dr Murray says:

"Thus at this stage she clearly does not have a pituitary problem. It is still unclear to me as to whether or not she really did have one in fact in Tasmania …".

Counsel for the defendant submitted that I ought not be satisfied that 26 November 1998 was when the plaintiff first became aware that she had never had a tumour. He referred to the consistently negative MRI results. However, none of the MRI results say that there is no pituitary micro-adenoma, they simply say "There is no evidence for a pituitary micro-adenoma". There is evidence that over an extended period the plaintiff believed that she had a pituitary tumour. As I have set out in the chronology she told obstetrician Dr Murray-Arthur at the Royal Hobart Hospital in November 1994 that she had been diagnosed with a pituitary tumour. On 8 December 1995 shortly following the birth of her baby the plaintiff told Dr Margaret Williams at the Northgate Medical Practice that she had a pituitary tumour. There is no evidence that anybody at the Royal Hobart Hospital or the Northgate Medical Practice ever told the plaintiff that she had never had a pituitary tumour. There is the evidence of Dr Booth that he told the plaintiff at a consultation on 27 May 1996 that the MRI of 1 April 1996 was normal, but there is no evidence that he told her that she did not have a tumour or that she had never had a tumour. At the consultation of 27 May 1996 Dr Booth issued a repeat prescription for parlodel.

I said earlier in these reasons that in considering the question of constructive knowledge I would only have regard to features particular to the plaintiff which went to capacity to acquire the relevant knowledge and that I would not have regard to features which went merely to inclination. There was a submission by counsel for the plaintiff that although the plaintiff:

"… is a person of normal intellect her disposition is to accept at face value advice given to her by professionals. This is evident from her conduct with respect to her solicitor. She willingly accepted assurances from him and remained happy with his services even after she was aware that he had not detected a limitation problem with her case until it was too late. she accepted advice given to her by Dr Murray-Arthur apparently at the least endorsed by the defendant without her examining the plaintiff or even speaking to her to undergo treatment with a termination of pregnancy. She appears not to have questioned Dr Murray-Arthur even though she says she did not want to terminate the pregnancy. Further she assumed that her doctors would inform her if there was any reason to adopt a different course of action after test results were available to them."

This is a characteristic which goes to inclination and not capacity and so is a characteristic to be disregarded. But even if account was taken of it, it would not have altered my conclusion. The enquiries which the plaintiff failed to make were not limited to enquiries challenging advice which she had been given. She did not ask whether the tumour was cancerous or not. She did not ask whether it was getting bigger or smaller following MRIs. There is no evidence of her asking whether the alleged diagnosis had impact on her life expectancy. There is no evidence of her asking whether surgery was a treatment option. Her failure to make enquiries which may have led to an earlier discovery that her MRI results did not support a diagnosis of a tumour and that she had never had a tumour is neither explained nor justified by a disposition to accept professional advice at face value.

The plaintiff has not discharged her onus of showing that the date of discoverability was within three years of the issue of the writ. I am not persuaded that a person in her position should not be expected to have found out much earlier that her MRIs did not support a diagnosis of a tumour and that there had never been a tumour.

Counsel for the plaintiff submitted that "the Court should not find that the plaintiff ought to have known she had been misdiagnosed with a pituitary tumour before 26 November 1998". Counsel gave no reason why the onus should be on the defendant and I can think of none. Regardless, however, even if the onus had been on the defendant, I would have been persuaded that the plaintiff had constructive knowledge of the alleged misdiagnosis that is to say constructive knowledge that her MRIs did not support a diagnosis of a tumour and that she had never had a tumour well prior to three years before the writ issued. The reason why I would have been so persuaded is that in my view the normal expectation for a person told that she had a pituitary tumour would be that she would have ongoing curiosity about her condition and make enquiries accordingly. Enquiries about the several MRIs would have resulted in a discovery that there was no tumour and discovery that there was no tumour would have resulted in the discovery that the MRIs had never supported a diagnosis of a tumour and that there never had been a tumour. This is what was discovered by Dr Murray in 1998 after he obtained an MRI and viewed the results of earlier MRIs. There is nothing to suggest that the same enquiries if made earlier would not have led to the acquisition of the same information, namely, that if there had been a diagnosis of a tumour by Dr Hoffman, it was unjustified and wrong.

The discretion

The existence of a discretion to extend time to the date of the issue of the writ has not been established, it not having been shown that the date of discoverability was within three years of the date of the issue of the writ. However, the question of how the discretion, if it had arisen, should be exercised was the subject of evidence and argument. I will consider how the discretion should have been exercised even though it cannot affect the outcome, which must be the dismissal of the application.

The Act, s38A(2) provides that the discretion is to be exercised "having regard to the justice of the case; and the matters mentioned in s5A(5)(a),(b) and (c)". The s5A(5) matters are "whether the passage of time has prejudiced a fair trial of the action; and the nature and extent of the plaintiff's loss; and the nature of the defendant's conduct".

In Hill v Iluka Corporation Ltd & Anor [2002] TASSC 113, the Full Court was concerned with the discretion under the Act, s5(3), namely a discretion to extend time if "in all the circumstances of the case it is just and reasonable so to do". It was common ground (in my view rightly) that no distinction is to be drawn between the s38A phrase "having regard to the justice of the case" and the s5(3) phrase. In Hill v Iluka the Court said at pars20 and 23:
"Upon an application to extend time pursuant to the Limitation Act 1974, s5(3), it must be remembered that the discretion is subject to no statutory fetters. The time may be extended if 'in all the circumstances of the case it is just and reasonable so to do …'.
…
In any event, it is clear that although the issue of whether the defendant will be able to get a fair trial is a significant, if not decisive, factor, it is certainly not the only relevant factor in the exercise of the discretion. The Limitation Act, s5(3), requires that consideration be given to all the circumstances of the case. In most cases this means that regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case, to extend the time within which proceedings may be commenced. See Knight v Smith [1975] Tas R 83; Klein v Domus (1963) 109 CLR 467; Parsons v Doukas (2001) 52 NSWLR 163; Marr v Green (1994) Aust Torts Reports ¶81-277."

Is there an arguable case that the plaintiff suffered injury as a result of the defendant negligently misdiagnosing her as having a pituitary tumour? The plaintiff and both her parents gave evidence in their affidavits that the diagnosis had been made. There is evidence that resultant injury was suffered. There is evidence that such a diagnosis was not supported by the results of any of the MRIs which the plaintiff underwent. It is common ground that the plaintiff had never had a tumour.

This extension of time application was not the trial of the action nor an occasion for the parties to engage in a preliminary skirmish as to the merits. Counsel for the defendant was unable to submit that the claim had not been brought in good faith or that it was not viable. He said:

"… I do concede that in this case the plaintiff has given evidence herself and has adduced evidence which if it’s believed would establish a misdiagnosis and on that basis I do concede that it is a question to be determined at the trial whether that evidence should be believed. It’s not of such a nature that it can be dismissed as totally incredible at this stage I concede that.
…
There’s a lot of objective evidence that would point to the proposition that it’s not correct but I concede that that’s not sufficient to say now that this evidence is totally incredible."

I proceed on the basis that there is an arguable case.

The delay is lengthy. The cause of action arose in early 1994, but the writ did not issue until November 2001. However, the delay has been explained. I have found that the plaintiff, assuming that she had been told by Dr Hoffman that she had a tumour, did not know that that had been a misdiagnosis until so told by Dr Murray in November 1998. She promptly thereafter saw a solicitor in Victoria.

I have set out that solicitor's evidence in detail earlier in these reasons. It is apparent from his evidence that the plaintiff was frequently communicating with him about her claim. In his affidavit the solicitor said at par8:

"The Plaintiff contacted me on a number of occasions both by telephone and e-mail throughout 1999 and early to mid 2000 enquiring about my progress in preparing the matter for Court. I reassured her either personally or via my assistant that I was continuing to gather all the relevant information and evidence to prepare her matter for issuing."

The plaintiff said in her second affidavit at par10:

"… during the period between my first consultation with him on the 17th of December 1998 and the commencement of this Court action, I gave Mr Galatas additional instructions in relation to the commencement of this action on a number of occasions. These instructions were sometimes in written form, other times in conference with him and other times in telephone discussions with him. From time to time, between December 1998 and November 2001 I contacted Mr Galatas and enquired about progress in commencing the Court action. Mr Galatas assured me at all times that the matter was progressing and that the Court action would be commenced when he had all relevant material available and the Statement of Claim was drawn. I accepted Mr Galatas' assurances and advice."

In Hall v Nominal Defendant (1966) 117 CLR 423, Barwick CJ said at 435:

"No hard and fast rule can be stated defining what may be an acceptable explanation. But at least, in my opinion, it should be held that it is the litigant's failure to sue in time which must be satisfactorily explained. However much in some fields the client must suffer for his solicitor's acts done on his behalf, in this field the litigant is not necessarily, in my opinion, to be saddled with responsibility for all that his solicitor does or does not do. It seems to me to be implicit in the views of the Court in Sophron's Case (1957) 96 CLR at p474, where it says that the blamelessness of the client and the responsibility of the solicitor are material considerations, that the client's reasonable acceptance of a solicitor's advice, the solicitor having been properly apprised by the client of all the materials, relevant facts and circumstances within his knowledge, may be a sufficient explanation of the failure to take action within time. A conscious decision by a litigant to take a particular course after appreciating the relevant evidence and considerations in the light of which a decision is to be taken may very well in some circumstances lead directly to the conclusion that it would not be just to allow him to resile and to have an extension of time in which to sue; or at any rate provide no reason for entertaining the application to extend the time."

There was no submission on behalf of the defendant that I should reject the evidence of the plaintiff or her solicitor on the matter of delay. There was no submission that I should regard the delay as not having been satisfactorily explained. There was no suggestion that the plaintiff ought be saddled with responsibility for delay attributable to her Victorian solicitor. This is clearly not a case where the plaintiff has consciously allowed a time limit to pass by. The delay has been satisfactorily explained.

On the question of whether or not the chance of a fair trial has been lost or diminished because of delay I venture to repeat what I said in Rush v Skilled Engineering Ltd & Ors[2002] TASSC 80 at par11:

"As I have said limitation legislation amongst other things, is a recognition of the fact that as time goes by relevant evidence is likely to be lost so that there is a deterioration in the quality of the justice that can be administered. The greater the delay the greater the risk. This feature being one of the rationales for the enactment of limitation periods must be considered in every case. The disadvantage, however, to a defendant caused by delay will vary from case to case, and as Toohey and Gummow JJ said in Taylor at 550:
'The real question is whether the delay has made the chances of a fair trial unlikely.'

The question then arises, bearing in mind that the applicant carries the overall onus, whether it is for the applicant to show that delay has not made the chances of a fair trial unlikely or for the prospective defendant to show that it has. In Taylor, McHugh J said at 555 that the existence of prejudice is presumed by the legislation in favour of the defendant at the expiration of the limitation period and Dawson J agreed at 544. In other words, they held that a prospective defendant had no evidentiary onus on this point. However, they were in the minority on this matter. Toohey and Gummow JJ at 547 endorsed the position stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VR 788 at 793, namely:
'It 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.'

Kirby J, although dissenting on other matters, put Toohey and Gummow JJ in the majority on the point. He said at 566 - 567:
'It will be rare that the passage of time does not cause at least some disadvantages to a prospective defendant (eg, the erosion of memory; the loss of documents; and the death, departure or disappearance of witnesses). But precisely what that disadvantage is in a particular case is better determined on evidence than on the basis of judicial generalities about time, the importance of finality and the usual desirability of prompt action for the fair trial of contested issues.
It is always open to a proposed defendant, resisting an application for extension of time, to call evidence of any specific detriment it would suffer if an order were made. … If a defendant does not call evidence, or calls evidence which is unpersuasive or insignificant, provided it is reasonable to infer that some evidence was available to it in the circumstances the defendant cannot complain if the court concludes that no particular prejudice, over and beyond the generalities, could have been established by it. This is simply another way of saying that, because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of specific prejudice pertinent to the exercise of the court's discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of specific prejudice lies on the party making any such suggestion. This is what is meant by the 'evidentiary onus' resting on a proposed defendant in relation to such an issue."

There is no evidence that witnesses have become unavailable or that documents have been lost or destroyed. As can be seen from the chronology which I set out earlier in these reasons a detailed history of the plaintiff's dealings with her doctors regarding her pituitary problem is available in documentary form.

On the central question of precisely what, if anything, Dr Hoffman said to the plaintiff about a pituitary tumour in early 1994, I accept the proposition advanced by counsel for the defendant that Dr Hoffman is unlikely now to have any independent recollection of her conversations with the plaintiff. However, I attach little weight to that proposition for two reasons. Firstly, I have no reason to think that even if the action had been commenced within a few months or perhaps a year of the alleged diagnosis of a pituitary tumour that Dr Hoffman would have had a recollection of events independent of her notes, written communications and test results. Secondly, in her affidavit sworn for the purposes of this extension of time application, Dr Hoffman was able to say without qualification "At no time did I ever advise the plaintiff that she had a pituitary tumour …".

Having regard to the continued existence of detailed medical records I do not think that this is a case where the chances of a fair trial have been diminished to any significant degree through delay.

Next the Act requires that regard is to be had to the nature and extent of the plaintiff's loss.

In June 2004 particulars of the quantum of the plaintiff's claim were delivered. Those particulars include the following:

"Past loss of earning capacity
…
That whilst the plaintiff was employed by 'The Pantry' she spent a total of 166 days off work undergoing medical treatment and tests and incurred as a consequence a total salary loss of approximately $19,153 ($576.92 per week = $115.38 per day x 166) and the plaintiff claims that sum.
That whilst the plaintiff was employed by DETYA she spent a total of 112 days off work undergoing medical treatment and tests and incurred as a consequence a total salary loss of approximately $11,846 ($528.84 per week = $105.77 per day x 112) and the plaintiff claims that sum.
…
Summary
Past loss of earning capacity:  31,000
Past medical practitioner expenses:  2,450
Past MRI scan expenses:  3,800
Past blood test expenses:  210
Past pharmaceutical expenses:  617
Past travelling expenses:      780
TOTAL:  $38,857"

It was not suggested that the Act requires that on an extension of time application it is appropriate for the Court to undertake any detailed appraisal of a likely award of damages should the plaintiff succeed in her action.

Counsel for the defendant did, however, submit that there is a realistic prospect that the plaintiff even if she establishes liability, may recover much less than she has claimed. At the trial there might be findings that the parlodel would have been prescribed anyway to lower prolactin and that the tests and investigations ordered would have been the same regardless of whether or not there was a diagnosis of a pituitary tumour. It would follow from such findings that the plaintiff would not be awarded general damages for pain and suffering for the side effects of parlodel and the discomfort and inconvenience of the medical investigations. In addition, if the plaintiff does have depressive symptoms as a result of the alleged wrongful diagnosis they have not been so severe as to prevent her from working. This is acknowledged in the evidence of psychiatrist, Dr Paoletti, referred to earlier in these reasons.

In exercising the discretion I would take account of the fact that the plaintiff has not suffered disabling injury and of the possibility that her loss might not be significant.

The last matter specified by the legislation for consideration is the nature of the defendant's conduct. There was no submission by counsel that in the circumstances of this case the defendant's conduct should have any impact on the exercise of the discretion.

There was another consideration raised on behalf of the defendant. It was submitted that any injustice to the plaintiff in withholding a favourable exercise of the discretion is mitigated by the fact that she appears to have a viable cause of action against her solicitor for negligence. He was instructed in December 1998 and allowed the six year absolute time bar to pass by in early 2000.

In Woolley v Jensen [1995] TASSC 20, a decision of the Full Court, Underwood J (as he then was), noted that great caution should be exercised in attaching weight to the possibility of a successful action against a dilatory solicitor. The other members of the Court agreed.

Counsel for the defendant fairly pointed out the matter was considered in Collingwood v Bishop Davies Court [1999] TASSC 94. There Evans J said at par14:

"A further relevant factor in the exercise of the Court's discretion is the applicant's potential cause of action against Mr Docking. I agree with the observations of Underwood J in Woolley v Jones [sic] (Full Court) A20/1995 at 7, that great caution should be exercised in attaching too much weight to this factor. I add that an alternative cause of action such as this, can present particular difficulties to a plaintiff. To establish liability against the solicitor, the plaintiff must first establish the negligence of the primary tortfeasor. As the primary tortfeasor is not a party to the action, that entity cannot be interrogated and discovery cannot be sought from it. The process of assessing damages can also give rise to difficulties as it involves determining when, in the absence of the solicitor's negligence, the principal action would have come to trial in the ordinary course, and establishing the evidence that would have been available to tender to the court at the time; Johnson v Perez (1988 - 1989) 166 CLR 351 and Nikolaou v Papasavas, Phillips & Co (1988 - 1989) 166 CLR 394."

Here, the three year primary limitation period under the Act, s5(1), had already passed by before the plaintiff first saw her solicitor. If the solicitor had recognised the applicable time limits an application for an extension of time would have been made in late 1998 or early 1999. I have found that the plaintiff has an arguable case; that delay has been satisfactorily explained and that a fair trial can still occur. There is no suggestion from the defendant that extending time would cause oppression. The only difference between the factors which would have been considered on an extension of time application in 1998 or 1999 and the factors relevant to the exercise of the discretion now is that absent a favourable exercise of the discretion the plaintiff might sue and recover something from her solicitor. I ask rhetorically why it should be considered just that a defendant who suffers no prejudice or oppression by further delay should have a time bar left in place which otherwise would have been lifted because the plaintiff has a chance of recovery against her solicitor? Further, I ask rhetorically why it should be considered just that the plaintiff should be left to sue her solicitor with all the attendant difficulties involved with that as pointed out by Evans J in Collingwood in circumstances where, but for the possibility of a successful claim against the solicitor, the time bar protecting the defendant would have been lifted?

In the circumstances of this case I attach no weight to the fact that the plaintiff might have a claim against her solicitor.

The only factors tending against an exercise of the discretion favourable to the plaintiff are the length of the delay; the fact that the plaintiff has not suffered a disabling injury and the policy considerations which lie behind the imposition of limitation periods.

Weighing all the factors, if the discretion had been available to extend time to the date of the issue of the writ, I would have concluded that the justice of the case rests with the grant of the extension sought.

Summary

h The plaintiff has applied for an extension of time to the date of the issue of her writ to bring an action for damages for personal injury. Her cause of action accrued in early 1994 and her writ issued almost eight years later in November 2001.

h       The plaintiff claims to have suffered injury as a result of a diagnosis allegedly made by the defendant, an endocrinologist, that the plaintiff had a pituitary tumour when in fact she did not.
h       The plaintiff did not discover that her test results did not support a diagnosis of a tumour and did not discover that she had never had a tumour until a consultation with a Melbourne endocrinologist in November 1998.
h       The plaintiff instructed a solicitor in relation to the matter in December 1998.
h       The solicitor could have made an application on behalf of the plaintiff pursuant to the Limitation Act 1974, s5(3), to extend the three year limitation period which applied at the time, to up to six years from the date of the accrual of the cause of action. He allowed the six year absolute time bar to pass by.
h       The solicitor told the plaintiff that she had three years from the time she was told that she did not have a tumour to issue the writ.
h       The writ was served in late 2002.
h       Despite a defence being promptly filed claiming the protection of the Limitation Act, the solicitor pursued the action on the plaintiff's behalf without advising her that because of the time bar her action had no prospect of success.
h       A little over two years after the filing of the defence amendments were made to the Limitation Act which gave the Court a discretion to extend time for up to three years commencing on the date of discoverability in respect of causes of action for personal injury which had accrued before 1 January 2005.
h       The amendments introduced into the Limitation Act the following definition of "date of discoverability":
"'date of discoverability', in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death –
(a)       had occurred; and
(b)       was attributable to the conduct of the defendant; and
(c) in the case of personal injury, was sufficiently significant to warrant bringing proceedings;"

h       The definition, by use of the words "or ought to have known" introduces the concept of constructive knowledge.
h       The plaintiff failed to show that she did not have constructive knowledge of the alleged wrongful conduct of the defendant earlier than three years before the date of the issue of the writ. In other words she failed to show that a person in her position would not have been expected to have found out earlier than she did that her test results did not support a diagnosis of a tumour and that there had never been a tumour.
h       Having failed to show that the date of discoverability was within three years of the date upon which the writ was issued the plaintiff failed to establish that the Court has jurisdiction to grant her application.
h       If the plaintiff had established that there was jurisdiction the discretion would have been exercised in her favour.

Disposition

The application will be dismissed.