Marouche v Houseman
[2012] VCC 1872
•3 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
MEDICAL DIVISION
Case No. CI-11-04902
| HANANE MAROUCHE | Plaintiff |
| v | |
| NICHOLAS D HOUSEMAN | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2012 | |
DATE OF JUDGMENT: | 3 December 2012 | |
CASE MAY BE CITED AS: | Marouche v Houseman | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1872 | |
REASONS FOR JUDGMENT
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Subject: LIMITATION OF ACTIONS
Catchwords: Personal injury – medical negligence – failure to warn and/or negligent performance of procedure – meaning of “fault” – whether proceedings statute barred – extension of time to commence proceeding
Legislation Cited: Wrongs Act 1958 – Limitation of Actions Act 1958 – Part IIA, s27D, s27N, s27F – Wrongs and Limitation of Actions (Insurance Reform) Act 2003
Cases Cited: Donmez v Neissa [2012] VSC 73; Delai v Western District Health Service [2009] VSC 151; Tucker v Barwon Health (2008) VSC 329; Spandideas v Vellar [2008] VSC 198; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Commonwealth of Australia v Smith [2005] NSWCA 478; Tsiadis v Patterson (2001) 4 VR 114; Sydney City Council v Zegarac (1998) 43 NSWLR 195; Jones and Dunkel (1959) 101 CLR 298.
Judgment: Time to commence proceeding extended.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with Mr G A Worth | Antony Sdrinis & Co |
| For the Defendant | Mr N Murdoch | Avant Law Pty Limited |
HIS HONOUR:
Background
1 This proceeding was commenced by Writ on 12 October 2011. The Writ was issued by the plaintiff’s solicitors, Antony, Sdrinis & Co.
2 The plaintiff brings the proceeding claiming damages against the defendant, who is a medical practitioner who practices as a plastic surgeon.
3 On 17 November 2004, the defendant carried out surgery upon the plaintiff. In the Statement of Claim, the plaintiff alleges that the surgery carried out by the defendant left her with unsightly scarring requiring revision, and psychological injury in the form of anxiety and depression.
4 The plaintiff claims damages, pleading causes of action in breach of contract and negligence.
5 In his Defence filed on 17 November 2011, the defendant pleads, inter alia, that the causes of action brought against him relate to personal injury and are statute barred because they were not commenced within three (3) years of the causes of action being discoverable by the plaintiff within s27D(1)(a) of the Limitation of Actions Act 1958 (‘the Act’).
6 Section 27D is in Part IIA of the Act which relates to “Personal Injury Actions” and applies to a cause of action for damages that relates to the “personal injury” of a person “regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise”.[1]
[1]Section s27B(1)
7 “Personal injury” includes any disease and any impairment of a person’s physical or mental condition.[2] There is no issue between the parties that the proceeding relates to a cause of action founded on an allegation of personal injury to the plaintiff.
[2]Section 3
Issues to be Decided
8 On 4 May 2012, the plaintiff issued a Summons seeking substantive relief namely, an order pursuant to s27K of the Act that the time within which the plaintiff be permitted to commence the proceeding be extended to 12 October 2011 and an order that paragraph 10 of the defendant’s Defence (which pleads the limitation point) be struck out.
9 I heard the plaintiff’s Summons on 28 September 2012. At the outset of the hearing I granted the plaintiff leave to amend the Summons to seek an additional order namely, a declaration that the proceedings issued on 12 October 2011 were issued within the limitation period for personal injuries actions as set out in s27D(1)(a) of the Act. That amendment was not opposed by Mr Murdoch, who appeared for the defendant on the Summons.
10 In support of the Summons, the plaintiff has sworn and filed two affidavits. The first affidavit was sworn on 2 May 2012 (‘the first affidavit’) and the second on 26 September 2012 (‘the second affidavit’). In addition, the plaintiff gave sworn evidence on the hearing of the Summons and was cross examined by Mr Murdoch.
11 The questions for me to decide are firstly, whether or not the proceeding was commenced within three years of the plaintiff discovering she had a cause of action and, if not, secondly, should the time for the commencement of the proceeding be extended pursuant to the power contained in s27K(1) of the Act.
Factual Background
12 The facts are largely not in dispute. The plaintiff was born in 1956 and is now fifty-six years of age. She was born in Lebanon and speaks Arabic and little or no English. She gave evidence before me through an interpreter.
13 On 18 October 2004, the plaintiff consulted the defendant with respect to a proposed abdominal lipectomy commonly known as a ‘tummy tuck’. There was a further consultation on 11 November 2004 and the defendant carried out an abdominal lipectomy upon the plaintiff on 17 November 2004. The plaintiff required a further procedure following the operation to evacuate blood on 24 November 2004.[3]
[3]Plaintiff’s first affidavit paragraphs 5 and 6
14 The plaintiff has deposed to the surgery performed by the defendant having left her with unsightly scarring requiring revisional surgery and “consequential psychological injury”.[4]
[4]Plaintiff’s first affidavit paragraph 8
15 The plaintiff instructed solicitors, Merhi & Associates, in mid 2005 and she deposed “I gave them instructions to investigate my case and to commence proceedings on my behalf within the relevant limitation period which I now understand to be three years”.[5]
[5]Plaintiff’s first affidavit paragraph 9
16 Relevant documents from the plaintiff’s file kept by Merhi & Associates were available on the hearing of the Summons and went into evidence.[6]
[6]Exhibit 2
17 On 23 February 2006, a barrister, Paul Halley, provided written advice to the plaintiff’s then solicitors.[7] He advised, inter alia, the plaintiff had a possible cause of action against the defendant[8] and, that if the case is viable, a medico-legal report would be required from a plastic surgeon commenting on any potential negligence.[9] Mr Halley also advised the plaintiff would be required to obtain a “significant injury certificate” before she could be awarded pain and suffering damages.[10] Importantly, the advice of Mr Halley concluded “The applicable limitation period is 3 years, that is, any such writ must be filed prior to 17 November 2007”.[11]
[7]Exhibit G
[8]Exhibit G paragraph 5
[9]Exhibit G paragraph 5
[10]Exhibit G paragraph 8
[11]Exhibit G paragraph 14
18 On 17 May 2006, Merhi & Associates wrote to the defendant advising that as a result of the surgery undertaken by him on the plaintiff on 17 November 2004, the plaintiff was left with significant scarring to a large portion of her lower abdomen, and resultant psychological injury, and that they had been retained by the plaintiff to pursue all remedies available to her.
19 On 22 May 2006, Merhi & Associates again wrote to the defendant seeking further information.
20 On 30 May 2006, the Medical Defence Association of Victoria responded to Merhi & Associates on behalf of the defendant. The letter asked that Merhi & Associates provide an authority in writing from the plaintiff. That was provided under cover of a further letter from Merhi & Associates dated 7 June 2006.
21 On 8 June 2006, the Medical Defence Association of Victoria wrote to Merhi & Associates asking for a copy of any opinion relied upon by the plaintiff and a copy of any photographs of her scarring.
22 On or about 29 March 2007, Merhi & Associates prepared a draft statement for signing by the plaintiff. An unsigned copy went into evidence as Exhibit 1.[12] In that statement, the plaintiff set out what could be regarded as the consequences to her of the surgery.[13] The plaintiff was asked about this statement in cross examination. She agreed that she had been blaming the defendant for her constant pain and suffering and depression since she had the operation.[14]
[12]Transcript 33
[13]Exhibit 1 page 3
[14]Transcript 33
23 On 22 May 2007, Merhi & Associates wrote to the defendant. The letter advised the plaintiff intended to seek compensation from his medical indemnity insurer. The letter went on to ask for his full report concerning the treatment he had given the plaintiff and sought his opinion in the form of answers to several questions posed in the letter.
24 In the meantime, whilst a response from the defendant was pending, Merhi & Associates arranged for the plaintiff to see Mr John Anstee, a plastic surgeon, for a medico-legal opinion. The appointment was arranged for 12 June 2007 but the plaintiff did not attend.[15]
[15]Exhibit H
25 On 17 June 2006, the defendant wrote to Merhi & Associates with respect to the treatment he had rendered to the plaintiff.
26 On 6 September 2006, Merhi & Associates again wrote to Mr John Anstee confirming a rearranged appointment for him to see the plaintiff on 9 October 2007.[16] The letter made clear “The client is seeking a claim for medical negligence associated with a tummy tuck operation performed on 17 November 2004”. The letter also asked Mr Anstee to provide “an impairment certificate pursuant to the American Medical Association Guidelines to confirm whether our client’s impairment is 5% or more”.
[16]Exhibit J
27 On 9 November 2007, Mr John Anstee prepared his report addressed to Merhi & Associates.[17] However, the report was not sent on that date.
[17]Exhibit A
28 On 15 November 2007, Mr John Anstee prepared a certificate pursuant to s28LN of the Wrongs Act 1958.[18]
[18]Exhibit E
29 By 23 October 2008, Mr John Anstee still had not sent his report that he prepared nearly a year earlier on 9 November 2007. This was presumably because it had not been paid for. A series of documents admitted into evidence show Mr Anstee did not in fact provide his report to Merhi & Associates until on or about 3 November 2008.[19]
[19]Exhibits B, C and D
30 The plaintiff met with her solicitor at Merhi & Associates on 7 November 2008. A letter to her from the solicitors dated 11 November 2008 confirms the meeting having taken place and what was discussed.[20]
“At the meeting we discussed the medical report from Dr Anstee. We informed you that the report indicated that you do have a cause of action/claim against Dr Houseman either for:
1 failure to warn regarding the possible outcome of the procedure and/or
2 negligent performance of the procedure itself.”
[20]Exhibit F
31 The letter from Merhi & Associates to the plaintiff of 11 November 2008 went on to advise the plaintiff that she had to commence her claim against the defendant “within 3 years from the date on which the cause of action is discovered by the plaintiff”.[21] The letter advised the plaintiff the limitation period had expired and went on to advise “As you have a cause of action you may apply to the court for an extension of the period of limitation”.[22] The letter also advised of other matters and advised the plaintiff she should seek independent legal advice. Amongst the other matters referred to in the letter was what was described as “funding in this matter” which was a reference to the inability of the plaintiff to put Merhi & Associates in funds to obtain medical reports.[23]
[21]Exhibit F
[22]Exhibit F
[23]Exhibit F
32 In mid 2009 the plaintiff retained her current solicitors.
33 The plaintiff’s current solicitors sought a medico-legal opinion from Mr Donald R Marshall, Associate Professor of Plastic and Reconstructive Surgery, who reported, inter alia, that it was inappropriate for the defendant to have carried out the surgery on the plaintiff on 17 November 2004 as the plaintiff was then morbidly obese and was continuing to smoke.
34 The proceeding was commenced by Writ issued on 12 October 2011 and served on the defendant on 27 October 2011.
35 On 7 December 2011, Professor Marshall certified, pursuant to s28LN of the Wrongs Act 1958, that the degree of impairment resulting from the plaintiff’s injury as a result of the surgery was more than 5 per cent.
36 In reply, the plaintiff pleads that any cause of action which she may have had against the defendant was not discoverable by her until after she had received the report of Professor Marshall dated 31 August 2011.[24] In her first affidavit, the plaintiff deposed that it was not until her current solicitors received the report from Professor Marshall that she was advised she had a good cause of action against the defendant.[25]
Is the Proceeding Statute Barred by Operation of s27D of the Act?
[24]Reply paragraph 4
[25]Plaintiff’s first affidavit paragraph 10
37 Relevantly, s 27D of the Act provides as follows:
“(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire-
(a)the period of three (3) years from the date on which the cause of action is discoverable by the Plaintiff;
(b) … .”
38 Section 27D is contained in Part IIA of the Act. By operation of s27N of the Act, the provisions contained in Part IIA of the Act apply to this proceeding.
39 Section 27F of the Act relevantly provides:
“(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts –
(a)the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the Defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2)A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before the date to ascertain the fact.
(3) In determining what a person knows or ought to have known, a Court may have regard to the conduct and statements, oral or in writing, of the person.
(4)… .”
(my underlining added)
The Onus of Proof
40 The plaintiff submits that the defendant bears the onus of proof with respect to both s27D and s27F of the Act. The plaintiff relies upon Donmez v Neissa,[26] at paragraph 33, where his Honour Justice Kaye stated:
“Thus, it follows that, in order to establish the defence, pleaded by the defendants, under s 27D(1) of the Act, the defendants must prove, on the balance of probabilities, that the plaintiff knew, or ought to have known, before 18 December 2005, each of the three matters specified in s 27F(1)(a)–(c). The legal onus of proof should not, of course, be confused with the evidential onus, which may well require that, in a case such as this, the plaintiff introduce evidence as to what he or she knew, or ought to have known, in relation to each of the three matters specified in s 27F(1). However, in determining this application, it is necessary to bear in mind that the legal onus of proof, in relation to each of those matters, rests on the defendant.”
[26][2012] VSC 73
41 The defendant did not dispute the submission that, having pleaded that the proceeding was statute barred, the defendant has the burden of the legal onus of proof.[27]
[27]The plaintiff’s counsel drew my attention to the fact that the decision of Kaye J in Donmez was followed by Beach J in Delai v Western District Health Service [2009] VSC 151 at paragraphs 14-15 and by Kyrou J in Tucker v Barwon Health (2008) VSC 229 at paragraph 73.
The Fact that the Personal Injury has Occurred – Section 27F(1)(a)
42 On the facts of this application, the plaintiff submits that the relevant facts in dispute are those referred to in s27F(1), subsections (b) and (c).
43 The argument proceeded on the accepted fact that the plaintiff knew or ought to have known of the fact of the personal injury in respect of which she claims damages had occurred for the purposes of s 27F(1)(a).[28]
[28]Plaintiff’s written submissions paragraph 9
The Fact that Personal Injury was Caused by the Fault of the Defendant –
Section 27F(1)(b)
44 Mr Murdoch, who appeared on behalf of the defendant, submitted that the word “fault” in s27F(1)(b) means culpability or blameworthiness and involves the attribution of a degree of culpability or blame on behalf of the person who caused the damage. He submitted that by the wording of the section, parliament intended that the period of limitation is to commence when the plaintiff knew (or ought to have known), inter alia, of the fact that the death or personal injury, the subject of the claim, was caused by an act of a person which should not have been carried out, or which should have been carried out differently or, by an omission by another person to carry out an act which should not have been done.
45 He relied upon the judgment of his Honour Justice Kaye in Spandideas v Vellar.[29] At paragraph 35 of the judgment, Justice Kaye said:
“… However, I do not consider that s 27F(1)(b) requires that the plaintiff form a legal judgment as to the ‘fault’ of a defendant in the tortious sense of the word. Rather, I consider that Parliament intended that the period of limitation is to commence when the plaintiff knew (or ought to have known), inter alia, of the fact that the death or personal injury, the subject of the claim, was caused by an act of a person, which should not have been carried out, or which should have been done differently, or by an omission by another person to carry out an act, which should have been done. In such a case, should a plaintiff have formed such a view, it may not be necessary for the plaintiff to have expressly entertained any notion of ‘fault’; rather, what the sub-section fixes on is the knowledge of the plaintiff (or the circumstance that the plaintiff should have known) that the death or injury resulted from an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done.”
[29][2008] VSC 198 at paragraphs 32, 35 and 41
46 I did not understand Mr Collis QC, who appeared with Mr Worth for the plaintiff, to take issue with the interpretation of the section contended for by Mr Murdoch.
47 Mr Collis did, however, argue that on the facts I could not be satisfied the plaintiff had the necessary knowledge of the fact required for the purposes of s27F(1)(b) until after the report from Mr Anstee had been received at the earliest, and not until the report of Professor Marshall had been received at the latest. I accept this submission.
48 Mr Murdoch submitted that what is required by s27F(1)(b) is that the plaintiff knows, or ought to know, that the injuries the subject of her claim arose by reason of something which the defendant did which he should not have done, or should have done differently, or something which the defendant failed to do which he should have done. He submitted that concepts of culpability and blameworthiness are relevant.
49 Mr Murdoch submitted that the plaintiff does not depose in either of her affidavits as to when she knew (subjectively) that her injuries or any of them were caused by the fault of the defendant. Further, he submitted that where the plaintiff has asserted in her first and second affidavits that it was not until she engaged her present solicitors who arranged for her to see Mr Marshall who provided a report dated 31 August 2011 “that I was advised that I had a good cause of action against the defendant”[30] is immaterial.
[30]at [10] and repeated in her second affidavit at [8].
50 Mr Murdoch submitted there was abundant evidence to find that the plaintiff was aware her personal injury was caused by the fault of the defendant as far back as mid 2005. In this regard, he pointed to a number of factual matters shown by the evidence. For reasons later stated, I also accept this submission.
51 In her first affidavit, the plaintiff deposed that she instructed her former solicitors, Merhi & Associates, to commence proceedings on her behalf within the relevant limitation period.[31] The plaintiff deposed she first consulted Merhi & Associates in mid 2005.[32] In cross examination, the plaintiff said she saw Mr Merhi after she stopped seeing the defendant.[33] She also gave evidence she told Mr Merhi to take legal action the first time she saw him.[34]
[31]at [9]
[32]at [9]
[33]Transcript 23 L5-6
[34]Transcript 28 L6-23
52 The plaintiff was cross examined through an interpreter on the issue of fault. She said she was very unhappy with the outcome of the operation in mid-2005.[35] Elaborating, she said she was very unhappy with what the defendant had done by way of operation for her[36] and she thought that the unacceptable scarring that she had in June 2005 was because of what the defendant had done at the operation.[37] She made it clear she thought the defendant had done a bad job by June 2005 and that is why she instructed the solicitors at that time. She said she blamed the defendant for the outcome of the surgery and she blamed him from November 2004 “since just after the operation.”[38]
[35]Transcript 21 L21
[36]Transcript 21 L23
[37]Transcript 21 L6
[38]Transcript 21 and 25
53 Mr Murdoch submitted from this evidence I should find that the plaintiff knew by June 2005 that the scarring, need for revisional surgery and psychological injury from which she says she suffered was caused by the fault of the defendant within the meaning of s27F(1)(b).
54 Mr Murdoch submitted it was not necessary to show the plaintiff had knowledge of the precise act or omission of the defendant said to constitute fault but, in any event, he submitted the evidence shows that the plaintiff did have knowledge of some relevant specific aspects of the defendant’s alleged fault. He submitted the evidence shows the plaintiff had very specific knowledge by June 2005 that the defendant had failed to provide a warning to her of a number of the complications which might occur in the operation which complications did in fact occur.[39] He submitted the evidence shows the plaintiff had very specific knowledge by June 2005 that the defendant had failed to warn her of the potential complications and had she been warned, she would not have had the operation.[40] He submitted the evidence shows the plaintiff had very specific knowledge by June 2005 that the defendant had failed to warn her of the possible poor outcome of her surgery constituting the injuries the subject of the claim.[41]
[39]Transcript 25 L21
[40]Transcript 28 L3-5
[41]Transcript 26-28
55 Mr Murdoch relied on Exhibit 1 and he submitted the statement given by the plaintiff to her solicitors on 29 March 2007 showed clearly that the plaintiff had the requisite knowledge as to “fault” on the part of the defendant in 2005. In that statement at page 3, the plaintiff reiterated that the defendant never gave her any warning about any risks involved in the operation. She said “I asked him many times, as did my daughter. His reply was that he does this operation nearly every day and there are never any troubles”. Mr Murdoch correctly submits that these alleged conversations must have taken place in 2005, confirming that the plaintiff knew at that time that the defendant had failed to do something which he should have done.
56 Further on in the statement, the plaintiff stated that she had told her solicitor that the defendant had offered to pay her “$500,000 out of his own pocket to make me happy” and offered to undertake a “big operation” which “would not cost me anything and that he would pay for all the costs”.[42] The plaintiff gave a slightly different version of events in cross examination, saying “he said, ‘I am willing to pay any costs up to $500,000’.”[43] The plaintiff accepted that she told Mr Merhi this because she thought this was the defendant taking responsibility for what went wrong.[44]
[42]Exhibit 1, page 2, fourth paragraph.
[43]Transcript 34 L6-7
[44]Transcript 34 L15-18
57 In Exhibit 1, the plaintiff stated that she blamed the defendant for all of the problems set out in her statement[45] “because I thought he was a good doctor, I trusted him. Yes, that’s why I blame him. … since I have had the operation, yes, I have been blaming him, yes.” That’s never changed. “No because my pain hasn’t disappeared.”[46]
[45]Exhibit 1, page 3, paragraphs 2 and 3
[46]Transcript 33, L 20-29
58 From all of this evidence, Mr Murdoch submitted that this is not a case where the plaintiff was in any doubt or was in a state of ignorance as to whether her injuries were caused by the defendant failing to do something which he should have done or doing something which he should not have done or should have done differently. He submitted the evidence clearly shows there was no uncertainty in the plaintiff’s mind. She was not waiting for confirmation of her state of mind from anyone else and on her version of events, she had been informed while she was in hospital by doctors and nurses of things that had gone wrong and they were doing this behind the defendant’s back.[47]
[47]Exhibit 1, page 2, paragraph 3
59 Mr Murdoch further submitted that the plaintiff’s evidence in her affidavits that she was not advised that she had a good cause of action against the defendant until 2011 following receipt of the report from Mr Marshall is unlikely to be correct having regard to other evidence. I accept these submissions as having been established by the evidence.
60 On 7 November 2008, Mr Merhi conferred with the plaintiff following receipt of a report from Mr Anstee on or about 3 November 2008. The note of the consultation forms part of Exhibit 2. The letter sent by Merhi confirming the matters discussed at the consultation is dated 11 November 2008.[48] The letter confirms that at the meeting, Mr Merhi discussed with the plaintiff a medical report from Dr Anstee[49] and confirmed that Merhi informed the plaintiff that the report indicated that she does have a cause of action/claim against the defendant for failing to warn and/or negligent performance of the procedure itself.
[48]Exhibit F
[49]Exhibit A
61 Mr Murdoch also referred to the fact of Merhi & Associates having obtained the advice of Mr Halley of counsel in February 2006[50] which, inter alia, advised that the applicable limitation period for the plaintiff’s claim was three years, such that any writ must be filed prior to 17 November 2007. Exhibit 2 reveals that on 7 March 2006, Mr Merhi attended on the plaintiff in relation to counsel’s advice, and again on 31 March 2006, on which occasion he explained the response of counsel and “process and procedure” to the plaintiff.
[50]Exhibit G
62 From all of this evidence Mr Murdoch submitted the defendant had discharged its legal burden of establishing that the plaintiff had knowledge by mid 2005 that her personal injuries were caused by the fault of the defendant.
63 Mr Collis submitted that the evidence was such that there was no basis for a finding that the plaintiff had, or ought to have knowledge of fault of the defendant until she was advised of the opinion of Mr Donald R Marshall, Associate Professor of Plastic and Reconstructive Surgery, in his report dated 31 August 2011.
64 I reject that submission. It is clear from Exhibit F that the plaintiff was at the very least advised in November 2008 that Mr Anstee was of the opinion she had a cause of action against the defendant. That was nearly three years before the opinion of Mr Marshall was to hand.
65 I agree with the submission of Mr Murdoch that the plaintiff does not depose in either of her affidavits as to when she knew (subjectively) that her injuries or any of them were caused by the fault of the defendant. I also accept the submission on behalf of the defendant that the plaintiff’s assertion in her first and second affidavits that it was not until she engaged her present solicitors, who arranged for her to see Mr Marshall, who provided a report dated 31 August 2011, “that I was advised that I had a good cause of action against the defendant”[51] is immaterial. That is because the evidence shows that the plaintiff was aware of the fact that her personal injury was caused through the fault of the defendant as far back as mid 2005.
[51]At [10] and repeated in her second affidavit at [8].
66 On the basis of the evidence given by the plaintiff before me and the content of Exhibit 1, I find that the plaintiff did consult with and instruct her former solicitors, Merhi & Associates, by mid 2005, and that she instructed that firm at that time to commence legal proceedings against the defendant. At that time, the plaintiff was clearly unhappy with the outcome from her surgery carried out by the defendant which she knew had caused unacceptable scarring to her lower abdomen. The plaintiff had knowledge by mid 2005 that her personal injuries were caused by the fault of the defendant.
67 I am also satisfied on the basis of the evidence given by the plaintiff that by mid 2005, she knew that the defendant had not given her warning of what complications might occur from the kind of surgery which the defendant did carry out on the plaintiff, or of the possible poor outcome from such surgery, namely, the very injuries that the plaintiff claims to have suffered.
68 Mr Collis also submitted that the plaintiff is an unsophisticated housewife, with limited skills with respect to English. That is true.
69 Mr Collis referred to the plaintiff’s evidence that Merhi & Associates were the first solicitors she had ever consulted and she gave such solicitors instructions to investigate her case and to commence proceedings on her behalf. Mr Collis argued that a reasonable inference to be drawn from this would be that she would have expected to be advised in the course of investigations as to whether or not she had a viable claim against the defendant. That may have been the case. However, the argument, in my view, ignores the inescapable conclusion that the plaintiff herself had knowledge by mid 2005 that her personal injuries were caused by the fault of the defendant.
70 Mr Collis submitted that a reading of the file of Merhi & Associates tendered to the Court[52] and the letter of 11 November 2008 to the plaintiff from her solicitors[53] shows that it was not until the meeting held on 7 November 2008 that the plaintiff was advised of the opinion of Mr Anstee that she did have a cause of action against the defendant. Mr Collis submits this is the first indication of advice of that sort, and it was allegedly given four (4) days after the report of Mr John Anstee was received by Merhi & Associates on 3 November 2008.
[52]Exhibit 2
[53]Exhibit F
71 I agree with the submission of Mr Murdoch. What advice the plaintiff may or may not have been given in November 2008 is immaterial in circumstances where I find on the evidence that by mid 2005, the plaintiff had knowledge of the fact that her personal injury was caused by the fault of the defendant. I reject Mr Collis’s submission.
The Fact that the Personal Injury was Sufficiently Serious to Justify the Bringing of an Action on the Cause of Action
72 As to s27F(1)(c), the plaintiff submits a personal injury such as that alleged in this proceeding is sufficiently serious to allow recovery for non-economic loss if it is an injury within the meaning of s28LE and s28LF of the Wrongs Act 1958.
73 Section 28LE of that Act provides a person is not entitled to recover damages for non economic loss in a court in respect of injury caused by the fault of another person unless the person has suffered “significant injury”. What is a “significant injury” is prescribed by s 28LF. Relevantly, for the plaintiff to have satisfied the requirement of s28LE, a certificate of assessment must have been issued under s28LNA. Section 28LN provides for a certificate of assessment by an approved medical practitioner.
74 Mr John Anstee certified under s28LN on 15 November 2007, but his certification was not delivered to the plaintiff’s solicitors, Merhi & Associates, until 3 November 2008. Mr Donald Marshall also certified under s28LN of the same Act on 7 December 2011.
75 Counsel for the plaintiff submits that the earliest the plaintiff could have known of the fact necessary for the purposes of s27F(1)(c) was 3 November 2008 when the certificate of Mr Anstee was received.
76 The proceeding having been issued on 12 October 2011, that is within three years of the fact referred to in s27F(1)(c) of the Act, the plaintiff submits the proceeding is not statute barred.
77 In submissions, Mr Murdoch did not specifically address this argument advanced by Mr Collis on behalf of the plaintiff. Implicit in Mr Collis’s submission is the argument that for the purposes of the fact referred to in s27F(1)(c), the plaintiff must be aware that she has suffered a “significant injury”.
78 For reasons that follow, I reject the submission.
79 In terms, s 27F(1)(c) does not refer to the plaintiff having knowledge of having suffered a “significant injury”. It speaks of the plaintiff having knowledge of the fact that the “personal injury was sufficiently serious to justify the bringing of an action on the cause of action”. In my judgment, that is a very different fact that having knowledge of a “significant injury” which can only be established by medical opinion.
80 The provisions in Part IIA of the Act and the provisions relating to the requirement for significant injury assessment now found in Part VBA of the Wrongs Act 1958, were all introduced by the same amending legislation, namely, the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003. In those circumstances, had the parliament intended the fact referred to in s27F(1)(c) to be knowledge of a “significant injury”, it would have used those words and not the words found in the provision.
81 In endeavouring to give meaning to s27F(1)(c) of the Act, I have looked at the Second Reading Speech of then Premier Bracks. I can find nothing in that speech that assists the plaintiff’s submission.
82 In my judgment the words “sufficiently serious to justify the bringing of an action” are to be given their normal and natural meaning. The plaintiff must have knowledge of an injury that is clearly serious as distinct from trivial or minor, and such that the amount of compensation sought justifies the cost and expense of going to the court.
83 Mr Murdoch submitted that by June 2005, the plaintiff had knowledge her “injuries” had been sustained and had stabilised. He submitted that in circumstances where the injuries the subject of the claim were sustained at the time of or, in the months following, the operation in November 2004 and, where those problems did not change (nor would be expected to change at least in regard to scarring and the need for revisional surgery) over ensuing years, there can be no doubt that the plaintiff knew that the injuries were sufficiently serious to warrant the bringing of legal action. He submitted that this is determined conclusively by the plaintiff instructing Merhi & Associates to commence legal action in mid 2005.
84 I accept Mr Murdoch’s submissions as to what is established by the evidence in this case. I find that by mid 2005, the plaintiff had knowledge that the personal injury she had sustained through the fault of the defendant was sufficiently serious to justify the bringing of an action on the cause of action within s27F(1)(c) of the Act.
85 I conclude that the plaintiff’s cause of action against the defendant was discoverable within s27F of the Act by mid 2005. The proceeding having been commenced by Writ on 12 October 2011, it clearly was brought after the expiration of three years from the time the causes of action were discoverable and is statute barred within s27D of the Act.
Should there be an Extension to the Limitation Period – Section 27K?
86 I turn now to consider whether, in all the circumstances of this matter, I should permit an extension of the limitation period.
87 Section 27K(2) of the Act relevantly provides:
“(2) Subject to s.27L, the Court:
(a) …
(b)may if it decides it is just and equitable to do so, order the extension of period of limitation applicable to the cause of action for such period as the Court determines.”
88 The power contained in s27K(2) may be exercised at any time, even after the limitation period has expired and a proceeding commenced.[54]
[54]Section 27M(1)
89 By the Summons issued by the plaintiff, she seeks to extend the limitation period to the date of the issue of the proceedings on 12 October 2011.
90 The underlying purpose of imposing a limitation period by statute is to preclude stale claims. It is prima facie prejudicial to the defendant to allow the commencement of an action outside the prescribed limitation period.[55]
[55]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh J at 552; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 per Forrest J at [72]; Commonwealth of Australia v Smith [2005] NSWCA 478 at [123]
91 It is necessary for the Court to synthesise the competing considerations in arriving at a conclusion that takes account of them all, bearing in mind the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[56] Section 27L of the Act requires a court, in the exercise of its discretion, to have regard to all of the circumstances of a case and includes a numbers of issues that might relate to a particular case that a court shall have regard to.
[56]Tsiadis v Patterson (2001) 4 VR 114 per Buchanan JA at paragraph 33, p123; Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197, 222-223
92 Prejudice is a highly relevant consideration.[57] The presumptive prejudice is to be taken into account but may not of itself disentitle the plaintiff. If there is significant prejudice, an extension should not be granted. Even without a finding of significant prejudice, an extension need not be granted as the applicant is still required to discharge the persuasive onus.
[57]Section 27L(2)
93 In determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’. The applicant must satisfy the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. [58]
[58]Gordon (supra) per Forrest J at [78] and [79] and the cases referred to by his Honour therein.
94 Mr Collis submitted that the overwhelming reason for delay in the prosecution of the plaintiff’s claim was the failure of her solicitors, Merhi & Associates, to investigate and attend to her claims. He submitted the plaintiff ought not be blamed for the failure of her former solicitors.
95 The potential claim that a plaintiff might have against a solicitor is one matter to be taken into account in an application such as this.[59] Mr Murdoch asked me to have regard to the plaintiff’s potential claim against her former solicitors. He likened this case to the position of the plaintiff in Gordon v Norwegian Capricorn Line (supra). He described the plaintiff’s potential claim against her former solicitors as “unanswerable”. I think that overstates the position.
[59]Tsiadis v Patterson (supra) per Buchanan JA at paragraphs 26-29, pp121-122 and in Gordon (supra).
96 Although on the surface the plaintiff would appear to have a strong claim in negligence against her former solicitors that may not necessarily be the case. The reason for the failure of the solicitors to commence a proceeding within the limitation period is unclear on the evidence. I infer that the reason for not obtaining the report of Mr Anstee until November 2008, for example, was probably the fact the solicitors had not been put in funds by the plaintiff. Whether or not that is actually what happened has not been the subject of evidence. There is no evidence before this Court on this application as to the basis on which the plaintiff’s former solicitors were retained. There may be conditions of the retainer which the plaintiff did not fulfil, making any potential cause of action doubtful or, at least questionable. For me to conclude that the plaintiff’s case against her former solicitors is unanswerable I would have to make a number of assumptions which the available evidence simply does not permit me to make.
97 In giving consideration to this application I have taken into account the fact the plaintiff may have a reasonably strong claim against her former solicitors but, in my view, that is as far as I ought properly go.
98 The defendant was advised of potential proceedings by letter dated 17 May 2006, and he addressed the letter by furnishing an account of his conduct by letter on 15 June 2007. In that letter, the defendant recorded conferring with the plaintiff on 18 October 2004 and the plaintiff had no significant past history “except for being a heavy smoker”. He said he discussed with the plaintiff the importance of her stopping smoking prior to the surgery. He described discussing “in detail” with the plaintiff the likely outcome of the surgery and the “possible complications”. The letter went on to discuss in detail the various further attendances of the defendant on the plaintiff. I infer the letter was written with the benefit of detailed clinical notes. I have taken these facts into account for the purposes of s27L(1)(c) of the Act.
99 The defendant’s insurer, the Medical Defence Association of Victoria, has been on notice of the potential claim since at least 7 June 2006.
100 The defendant and his insurer were both notified of the claim within the limitation period and both have had ample opportunity to investigate the plaintiff’s claim and assemble any evidence that may be considered relevant. This position may be contrasted with a claim that comes out of the blue as it were many years after the limitation period has expired.
101 Here, the defendant does not argue he has suffered actual prejudice but nonetheless argues presumptive prejudice.[60] Mr Murdoch submitted the presumption of prejudice here ought to be strong because the delay between the accruing of the cause of action (17 November 2004) and the date of commencement of the proceeding (12 October 2011) is six years and eleven months. If one adds on the time taken to issue the Summons on 4 May 2012, Mr Murdoch submits the delay is really seven years and six months.
[60]Section 27L(1)(b)
102 On any view that is substantial delay and I agree that the presumption of prejudice to the defendant consequent upon the delay is strong.
103 Mr Murdoch points to a number of other factors present here which he submits and, I agree, are relevant to the exercise of my discretion. The plaintiff blames her first solicitors for the delay but does not explain what steps she took between mid-2005 and November 2008 to press them for information or to push them to take steps in relation to her claim, in particular in relation to the commencement of proceedings.[61]
[61]Section 27L(1)(g)
104 In addition, there is no evidence from the plaintiff’s former solicitors in relation to the period in which they were retained. No attempt is made by the plaintiff to explain the delay between November 2008 and October 2011 other than the plaintiff states that she instructed new solicitors and they obtained a report from Mr Marshall. No explanation is given for the failure to commence proceedings immediately upon the new solicitors receiving instructions in mid-2009.
105 Mr Murdoch submitted it is unusual in an application such as this for there to be no affidavit evidence from any solicitor acting for the plaintiff. He invited me to infer, had such evidence been adduced by the plaintiff, it would not have assisted her case. [62] I agree with that submission and I do infer that had Mr Merhi given evidence, he would not have assisted the plaintiff’s case.
[62]Jones and Dunkel (1959) 101 CLR 298
106 Mr Murdoch submitted that the plaintiff in her affidavit material, does not suggest lack of funds as a reason for delay. Funding difficulties are referred to in Exhibit 2 and applications for assistance with funding were apparently made by Merhi & Associates in 2008. The outcome of such applications is unknown. Mr Murdoch submitted an inference is available from the material that the plaintiff was unwilling, rather than unable, to provide funds for the commencement of proceedings. Mr Murdoch also submitted the available evidence does not support the conclusion that lack of funds delayed prosecution of the plaintiff’s claim. I do not draw the invited inference and neither do I conclude that prosecution of the plaintiff’s claim was delayed by lack of funds.
107 I accept the plaintiff’s solicitors were advised by counsel that the time limit would expire in November 2007 and the solicitors did not take steps to commence proceedings when such was the proper course open to them. I accept there is no explanation for this failure on the evidence.
108 I accept Mr Murdoch’s submission that the material adduced by the plaintiff seeking to explain the period of delay is inadequate. I accept that lengthy periods of time delay are completely unexplained and any explanations given are inadequate.
109 The pleadings in this case are limited, as are the allegations. The plaintiff’s case in summary form is that the defendant should not have performed surgery upon the plaintiff when he did because she was morbidly obese and a heavy smoker. The plaintiff will argue that the surgery was carried out too soon after the initial consultation on 18 October 2004 and not enough time was allowed for the plaintiff to quit smoking and no steps were taken for her to lose weight.
110 The defendant denies negligence and alleges contributory negligence on the part of the plaintiff by her continuing to smoke even after the surgery when she had been told by the defendant to quit.
111 Mr Murdoch contends that part of the evidence at trial will be as to conversations between the plaintiff and the defendant and the delay will necessarily mean that the defendant will be prejudiced by because of lack of recollection.
112 Whilst I accept that there may be some prejudice to the defendant at trial relating to evidence of conversations between the plaintiff and defendant, in my view, that prejudice is limited. The defendant will be able to call in aid his clinical notes, and his letter of explanation written in November 2007 refers in detail to his discussions with the plaintiff. The defendant and his insurer have been on notice of the plaintiff’s claim since 2006 and, in my view, this ameliorates any prejudice that the defendant may suffer.
113 On the surface the plaintiff appears to have a reasonably strong case against the defendant and any successful claim is likely to lead to substantial damages. The trial of the action will hear from the respective parties and their experts. The only other witness is likely to be the plaintiff’s daughter and perhaps others going to the issue of damages. In these circumstances, I have concluded that despite the delay, the trial of the action is unlikely to be prejudiced or adversely affected to any significant degree so far as the defendant is concerned.
114 I conclude, in all of the circumstances, that it is just and reasonable to both parties to extend the limitation period for the plaintiff to commence the proceeding against the defendant to 12 October 2011.
115 The orders will be as follows:
(1) That the time within which the plaintiff be permitted to commence the proceeding be extended to 12 October 2011.
(2) That paragraph 10 of the defendant’s Defence be struck out.
116 I will hear the parties on the question of costs.
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