JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATES OF HEARING:	9, 10 and 20 May 2022
DATE OF JUDGMENT:	24 June 2022
CASE MAY BE CITED AS:	Moore v Escott & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 353

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LIMITATION OF ACTIONS – Plaintiffs’ son born in September 2007 – 12 week ultrasound and first trimester screen in March 2007 and 20 week ultrasound in May 2007 – Later diagnosis of cardiac abnormalities and neurodevelopmental disabilities – First plaintiff first approached solicitor in November 2016 – Proceedings commenced in September 2018 – Later amendments to substitute fourth defendant and add second plaintiff – ‘Discoverability’ of causes of action – ‘Fault’ – Spandideas v Vellar [2008] VSC 198 considered and discussed – New South Wales v Gillett [2012] NSWCA 83 followed – Extension of time – Synthesis – Tsiadis v Patterson (2001) 4 VR 114 – Limitation of Actions Act 1958 (Vic), ss 27D, 27F, 27K and 27L – First plaintiff’s causes of action relevantly discoverable within time – Alternatively, extension granted in respect of claims of first plaintiff – Second plaintiff’s application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	JP Brett QC with M Bylhouwer	Slater Gordon
For the Third and Sixth Defendants	IRL Freckelton AO QC	Kennedys for the Third Defendant Avant Law for the Sixth Defendant
For the Fourth Defendant	AM Magee QC with C Morshead	Landers & Rogers
For the Fifth Defendant	D McWilliams	Sparke Helmore

HIS HONOUR:

A Introduction

The first and second plaintiffs are the mother and father of a son, Corey, born at Wodonga Hospital on 26 September 2007.

On 27 September 2018, the first plaintiff, together with Corey, commenced proceedings against several defendants, including –

(a) the third defendant, a qualified medical practitioner and radiologist;

(b) the fifth defendant, a qualified medical practitioner and radiologist; and

(c) the sixth defendant, a general practitioner who provided antenatal care, treatment and management to the first plaintiff.

At some point, Corey ceased to be a plaintiff. His mother became the first plaintiff and, on 16 March 2020, his father was added as second plaintiff.

The claims against the first and second defendants were, at some point, discontinued or otherwise ceased. On 16 March 2020, Victorian Clinical Genetic Services Limited was substituted as the fourth defendant.

The relevant underlying circumstances may be stated relatively briefly, albeit that amendments to the pleaded claims continued to be made during the hearing of the present application.[1]
[1]The final iteration of the plaintiffs’ pleading is the Proposed Second Further Amended Statement of Claim dated May 2022.

On 19 March 2007, the third defendant reported to the sixth defendant in respect of a pelvic ultrasound performed upon the first plaintiff (the March ultrasound report). The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moore v Escott

Details

AGLC: Moore v Escott [2022] VSC 353
Case: [2022] VSC 353
Decision Date: 24 June 2022

CaseChat Overview and Summary

The plaintiffs, Moore and his wife, brought proceedings against several defendants, including medical practitioners, for damages related to the birth of their son in September 2007. The plaintiffs alleged that the defendants' negligence during prenatal care resulted in their son being born with severe cardiac abnormalities and neurodevelopmental disabilities. The defendants argued that the plaintiffs' claims were time-barred under the Limitation of Actions Act 1958 (Vic). The dispute came before the Court, which had to determine whether the plaintiffs' causes of action were discoverable within the statutory time limits and, if not, whether an extension of time should be granted.

The court needed to decide whether the plaintiffs' causes of action were discoverable within the relevant statutory period and, if not, whether an extension of time should be granted. The plaintiffs argued that their causes of action were not discoverable until they became aware of the full extent of their son's disabilities. The defendants contended that the plaintiffs should have discovered their causes of action earlier, given the information available to them at the time of their son's birth. The court considered relevant cases, including Spandideas v Vellar and New South Wales v Gillett, to determine the applicable legal principles.

The court found that the plaintiffs' causes of action were discoverable within the statutory time limits. The court concluded that the plaintiffs could not reasonably have discovered their causes of action earlier, given the information available to them at the time. The court also found that the plaintiffs had exercised reasonable diligence in investigating their claims. However, the court declined to grant an extension of time for the second plaintiff, as she had not demonstrated sufficient grounds for an extension. The court emphasised the importance of timely pursuit of legal claims and the need for plaintiffs to exercise reasonable diligence in investigating their causes of action.

The court ordered that the first plaintiff's claims were not time-barred and that an extension of time should be granted in respect of those claims. The court refused the second plaintiff's application for an extension of time. The court's decision highlights the importance of timely pursuit of legal claims and the need for plaintiffs to exercise reasonable diligence in investigating their causes of action. The court's decision also provides guidance on the application of the Limitation of Actions Act 1958 (Vic) in cases involving medical negligence and the 'discoverability' of causes of action.

Orders