Moore v Escott
[2022] VSC 353
•24 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WODONGA
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S ECI 2018 01557
BETWEEN:
| BELINDA MOORE & ANOR (according to Schedule) | First Plaintiff |
| -and- | |
| DR RICHARD ESCOTT & ORS (according to Schedule) | Third Defendant |
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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 findings read, relevantly, as follows –
A single live foetus is identified with a CRL of 5.0cm which corresponds to a gestation of 11 weeks and 5 days, EDD 03/10/07. Nuchal translucency measured 11mm. The foetal heart rate was measured at 167bpm.[2]
[Emphasis added].
[2]Exhibit E: Affidavit of Anne Shortall affirmed 6 May 2022, exhibit, 8.
There is evidence that a nuchal translucency measurement of 11 millimetres is ‘significantly increased and abnormal’.[3] That contention is centrally relevant to the allegations against the third and sixth defendants. It is also relevant to the allegations made against the fourth defendant.
[3]Exhibit B: Affidavit of Anne Shortall affirmed 6 October 2020, exhibit ‘AS-49’, 11. Compare, albeit from a different perspective, Exhibit D: Affidavit of Anne Shortall affirmed 21 April 2021, exhibit ‘AS-53’.
In that connection, on 22 March 2007 the fourth defendant prepared a first trimester combined screen report addressed to the sixth defendant (the 1st trimester combined screen report). The 1st trimester combined screen report bears the name Vivienne Iaschi and is stated to have been analysed by Mr L Bonacquisto, medical scientist. The 1st trimester combined screen report stated a nuchal translucency measurement of 1.1 millimetres.[4] It did not seem to be in contest that a nuchal translucency measurement of 1.1 millimetres is not abnormal.
[4]Exhibit E: Affidavit of Anne Shortall affirmed 6 May 2022, exhibit, 8.
The plaintiffs allege that the nuchal translucency measurement of 1.1 millimetres was stated incorrectly in the 1st trimester combined screen report. The fourth defendant pleads that it ‘does not know and cannot admit’ that allegation. Implicitly, the allegation of the plaintiffs is that the nuchal translucency measurement should have been based upon the March ultrasound report and therefore should have been 11 millimetres. If that had occurred, it is essentially said, it would or should have been identified as abnormal in the course of preparing the 1st trimester combined screen report.
On 17 May 2007, the fifth defendant reported to the sixth defendant in respect of an obstetric ultrasound performed upon the first plaintiff (the May ultrasound report). The findings read, relevantly, as follows –
Technically difficult study due to patient body habitus and as such some congenital anomalies may be missed.
…
… No obvious structural abnormality identified.[5]
[5]Ibid, exhibit, 10.
Among other things, the plaintiffs allege that there were features of the May ultrasound report that should have caused the fifth and sixth defendants to repeat the investigation. Implicitly, it is alleged that if the investigation was repeated or ‘properly performed’ the abnormalities evident in the plaintiffs’ son after birth would have been revealed.[6]
[6]Cf., Outline of Plaintiffs’ Final Submissions [28].
Corey was born with significant cardiac and other abnormalities. The nature and full extent of those abnormalities and consequential disabilities came to be revealed over time. The plaintiffs allege that as a consequence of the negligence of the defendants ‘the pregnancy was not terminated, and the first and second plaintiffs suffered loss and damage’.[7]
[7]Proposed Second Further Amended Statement of Claim dated May 2022 [41].
In substance, the position now is that –
(a) the first plaintiff claims pain and suffering in respect of the birth of Corey;
(b) the first plaintiff also claims aggravation of her own psychiatric condition; and
(c) the first and second plaintiffs together claim in respect of the costs of care and raising Corey.
The proceeding is listed for trial in the Wodonga circuit in November 2022. It is listed to run before a judge and jury on an estimate of between 20 and 25 days.
In this context, the plaintiffs have sought to have determined the various limitations issues raised by the defences. In a Proposed Further Amended Summons dated May 2022, the plaintiffs sought the following relief –
1.A declaration that the Plaintiffs’ cause of action was discoverable pursuant to Section 27F of the Limitation of Actions Act no earlier than 28 September 2015.
2.In the alternative an extension of the relevant limitation period pursuant to Section 27K of the Limitation of Actions Act to 27 September 2018 and in relation to the Fourth Defendant to 16 March 2020.
3.That each of the following be struck out –
(a)paragraph 49 of the Third Defendant’s Further Amended Defence;
(b)paragraph 48 of the Fourth Defendant’s Further Amended Defence;
(c)paragraph 50 of the Fifth Defendant’s Amended Defence;
(d)paragraph 50 of the Sixth Defendant’s Second Further Amended Defence.
It will be evident that, somewhat confusingly, the Proposed Further Amended summons seeks a declaration concerning the ‘discoverability’ of the causes of action of both plaintiffs; in circumstances where, in other respects, it was acknowledged that the second plaintiff requires an extension of time against all defendants.[8] To compound the position, the closing outline of submissions of the plaintiffs stated that the second plaintiff required such an extension ‘against all defendants’, but also advanced submissions concerning ‘discoverability’ broadly directed to ‘the plaintiffs’.[9] In oral submissions, counsel for the plaintiffs confirmed that the issue of discoverability arises directly only in respect of the first plaintiff.[10]
[8]See, Outline of Plaintiffs’ Final Submissions [2] and [20]. Cf., Limitation of Actions Act 1958 (Vic) s 27D(1).
[9]It may well be that the written submissions were drawn in that form with a view to addressing s 27L(1)(e) of the Limitation of Actions Act 1958 (Vic). In that regard, see Outline of Plaintiffs’ Final Submissions [31].
[10]Transcript ‘T’ 111-112.
Ultimately,[11] it was clear enough that the position was as follows –
[11]It should be noted that when argument commenced, the third and sixth defendants, in particular, contended that the plaintiffs’ claim was properly to be characterised as only for pure economic loss in respect of which no extension may be granted. It was submitted that the decision of Kaye J in Caven v Women’s and Children’s Health (2007) 15 VR 447 was distinguishable. After the plaintiffs’ sought leave to amend their pleading to rely upon the pregnancy of the first plaintiff as an injury – which was ultimately not opposed – the pure economic loss argument was, in due course, not pressed.
(a) the issue of ‘discoverability’ arises directly in respect of the first plaintiff’s claims against the third, fifth and sixth defendants;[12]
[12]Limitation of Actions Act 1958 (Vic) ss 27D and 27F.
(b) if each of those causes of action were first ‘discoverable’ within three years prior to 27 September 2018, the first plaintiff’s claims against each of those defendants are, in effect, in time;
(c) if not, the first plaintiff seeks and must obtain an extension of time in respect of those claims;[13]
(d) as against the fourth defendant, no issue of ‘discoverability’ arises directly – the first plaintiff seeks and must obtain an extension of time;[14] and
(e) no issue of ‘discoverability’ arises directly in connection with the claims made by the second defendant – he must seek and obtain an extension of time against all defendants.[15]
[13]Limitation of Actions Act 1958 (Vic) ss 27K and 27L.
[14]Ibid.
[15]Ibid.
In support of the various aspects of the application, the plaintiffs filed and served –
(a) an affidavit of the first plaintiff sworn 6 October 2020;[16]
(b) several affidavits of Anne Shortall, solicitor.[17]
[16]Exhibit A.
[17]Exhibits B, C, D and E.
The defendants each relied upon both presumed prejudice and evidence of actual prejudice.
In that connection, the fourth defendant filed and served –
(a) an affidavit of Vivienne Iaschi affirmed 27 April 2021;[18]
(b) an affidavit of Kai-Yan Lam, solicitor, affirmed 26 April 2021;[19] and
(c) an affidavit of Leonard Bonacquisto affirmed 18 November 2020.[20]
[18]Exhibit D4-1.
[19]Exhibit D4-2.
[20]Exhibit D4-3.
For its part, the fifth defendant filed and served –
(a) an affidavit of the fifth defendant affirmed 30 October 2020;[21] and
(b) affidavit of Kerri-Beth Thomas, solicitor, affirmed 30 October 2020.[22]
[21]Exhibit D5-1.
[22]Exhibit D5-2.
The third and sixth defendants did not file and serve any evidence.
B ‘Discoverability’
Section 27D of the Limitation of Actions Act 1958 (Vic) (Limitation of Actions Act) provides, relevantly, 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 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b)the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.
…
As to ‘discoverability’, section 27F provides, relevantly –
(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 that 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.
The first plaintiff initially relied upon the construction of those provisions articulated by Kaye J in Spandideas v Vellar.[23] As his Honour essentially acknowledged, the provisions to which I have referred were within the suites of legislative amendment introduced in Victoria and in other states and territories following the publication of the ‘Review of the Law of Negligence’ undertaken by a panel chaired by Justice Ipp. The precise terms of the legislative amendments effected in the different states and territories tends to vary.
[23][2008] VSC 198 (‘Spandideas’). Cf., Vellar v Spandideas [2008] VSCA 139 [65].
In Spandideas, the plaintiff had given birth to a daughter in February 1996. After the birth she had pain and difficulty in bowel movements. In May 1996, the defendant operated. After the surgery, the problems became worse. The plaintiff suffered depression and anxiety and further surgery followed. The plaintiff said that she believed that her problem related to the delivery of the child in February 1996 by a Dr Somerville. Further events intervened – including the advice of solicitors.
In respect of the issue of ‘discoverability’, the plaintiff contended and his Honour accepted, that she had not known that the defendant should not have undertaken the surgery in May 1996 until so advised by Mr Douglas, colorectal surgeon, in August 2006. In that connection, his Honour stated –
While not all of the evidence of the plaintiff is readily capable of being reconciled, in my view it is clear that, until she saw Mr Douglas in August 2006, the plaintiff had not been told that the defendant should not have performed the operation undertaken by him in May 1996. Nor has she been told that there was anything about that operation, or preceding it, which the defendant should, or should not, have done. Certainly, before that time she understood that there was “damage” to both her sphincters. Indeed, in this respect her current understanding as to which doctor was responsible for the “damage” to a particular sphincter seems to be erroneous. The plaintiff still believes that her internal sphincter was damaged during childbirth, and her external sphincter was cut by the defendant. The converse appears to be the case. However, whatever the present view of the plaintiff about her injury, it is clear that, until she saw Mr Douglas in August 2006, she had no understanding, or knowledge, that the defendant should not have undertaken the sphincterotomy, or that he should or should not have done something differently in relation to it. My impression of the plaintiff’s evidence is reinforced by the evidence of Ms Shortall, that until the plaintiff was examined by Mr Douglas, she had a strong view that it was Mr Somerville who caused all of her problems. For those reasons, I consider that the plaintiff has established that it was not until August 2006 that she understood that her injury was the result of the “fault” of the defendant, for the purposes of s 27F(1)(b) of the Limitation of Actions Act.[24]
[24][2008] VSC 198 [58] (‘Spandideas’). See also, Ibid [61]-[62].
In respect of the construction of the ‘discoverability’ provisions and, particularly the word ‘fault’ in section 27F(1)(b), his Honour had earlier stated that –
… The meaning of “fault” is plain and unambiguous, both in ordinary parlance, and in its context in Part 2A of the Act. Its usual everyday meaning connotes culpability or blameworthiness. In particular, where injury or damage is said to be the result of the “fault” of another person, ordinarily such an accusation would involve the attribution of a degree of culpability or blame on behalf of the person who caused the damage…[25]
[25]Ibid [32].
His Honour explained further as follows –
… 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.[26]
[26]Ibid [35]. See also, Ibid [41].
In that connection, his Honour thereafter stated –
… the commencement of the period of limitation should be dependent upon a normative assessment by the plaintiff as to whether an act or omission of a defendant involved culpability or blameworthiness on the part of the defendant.[27]
[27]Ibid [36].
As to when a person ‘ought to have known’ of the statutory facts comprising a ‘discoverable’ cause of action, his Honour later expanded further, as follows –
… Section 27F is concerned with issues of discoverability by a person who has suffered a personal injury. It would be entirely artificial, and indeed well nigh intellectually impossible, to assess what a person “ought to know”, without taking into account such subjective factors as the age, characteristics, the education, and physical and psychological state of the plaintiff.[28]
[28]Spandideas (n 24) [65].
In that connection, his Honour addressed several of the circumstances relating to the plaintiff and her treatment and advice received prior to August 2006. His Honour then found that –
… In light of the advice by Slater & Gordon, in 2000, that her potential claim was without merit, and given that she did not learn anything in the interim which might have alerted her to a potential claim, it is not surprising, or unreasonable, that she did not seek further legal advice until 2005. I therefore do not consider that the plaintiff failed to take all reasonable steps to ascertain the two facts which I find she was advised by Mr Douglas in August 2006.[29]
[29]Ibid [67].
It followed that the plaintiff neither knew, nor ought to have known, before August 2006, that the operation performed by the defendant caused or contributed to her condition. In those circumstances, her cause of action against the defendant was not ‘discoverable’ before August 2006, which was within three years of the issue of proceedings.
The construction of the relevant provisions by Kaye J in Spandideas has passed undisturbed in several subsequent cases in this Court.[30]
[30]See, in particular, Tucker v Barwon Health [2008] VSC 229 [73], Delai v Western District Health Service &Anor [2009] VSC 151 [15], GGG v YYY [2011] VSC 429 [213] and Donmez v Neissa & Anor [2012] VSC 73 [26].
Notwithstanding the above, the relevant equivalent provision in New South Wales is s 50D of the Limitation Act 1969 (NSW) (Limitation Act), which provides, relevantly –
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts –
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the 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 time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
There are differences between section 27F of the Limitation of Actions Act and section 50D of the Limitation Act; however, they are not obviously material.
The New South Wales provision was the subject of consideration by the Court of Appeal of New South Wales in Baker-Morrison v State of New South Wales.[31] In that instance, the plaintiff was a child who had caught her hand in sliding doors at a police station. The plaintiff’s mother consulted a solicitor six days after the incident, and it was the mother’s knowledge that was relevant to the questions arising under s 50D. Proceedings were issued three years and 26 days after the incident; so the issue was whether the cause of action was ‘discoverable’ in the period of 26 days after the incident.
[31](2009) 74 NSWLR 454 (‘Baker-Morrison’).
Basten JA (with whom Ipp and MacFarlan JJA agreed) referred to aspects of the statutory history that, I note, are slightly different to that concerning the Limitations of Actions Act. His Honour noted that it was not in issue that the respondent bore the burden of proving the facts stated in s 50D.[32]
[32]Cf., As to s 27D of the Limitations of Actions Act 1958 (Vic): Donmez v Neissa & Anor [2012] VSC 73 [32]-[33].
As to whether such facts would in any case be known actually or constructively, his Honour observed that it may be different depending upon whether the facts concerned are ‘properly within the understanding and evaluation of a non-professional’ as opposed to requiring ‘information or opinion supplied by a professional’.[33] From that point, his Honour proceeded to in some respects distinguish Spandideas and ultimately did not follow the construction of ‘fault’ there articulated. In that connection, after addressing aspects of the New South Wales legislation and other authority, his Honour stated –
… It is the key factors necessary to establish legal liability which must be known. In the context of s 50D, to speak in general terms of moral blameworthiness is inapt: …[34]
[33]Baker-Morrison (n 31) [26].
[34]Baker-Morrison (n 31) [39].
In respect of the instant case, his Honour said –
The exercise undertaken by the State in the present case fell far short of demonstrating that the plaintiff’s mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe. The primary particular of negligence on the statement of claim was a failure to provide “a protective guard or covering along the area of operation of the … sliding glass doors”. Until the plaintiff’s mother was aware (or ought to have been aware) of the availability and reasonable practicability of installation of such a device, she could not be said to be aware that her daughter’s injury was caused by a failure on the part of the State to take reasonable care for her safety. These are the terms in which the relevant test under s 50D(1)(b) should be formulated.[35]
[35]Ibid [40].
Immediately thereafter, his Honour described ss 50D(1)(b) and (c) as requiring ‘a legal evaluative judgment’. Indeed, his Honour considered that requirement to be ‘even more explicit in par (c)’, in which the injury must be understood to be ‘“sufficiently serious to justify”… “the bringing of an action on the cause of action”’. His Honour identified that sub-paragraph as appearing to require ‘the exercise of both legal and medical expertise’.[36] In that connection, his Honour referred with approval to the following passage from the decision of a judge of the District Court in another case –
… In order to know whether the injury is sufficiently serious to justify the bringing of action, a person must know not only that the injury is serious, but also, in approximate terms, whether the injury is sufficient to bring the person over any of the statutory thresholds that now exist.[37]
[36]Ibid [41].
[37]Ibid [46].
His Honour later discussed whether it might be said that the plaintiff’s mother ‘ought to have known’ of the statutory ‘facts’ stated in s 50D(1). In that connection, his Honour identified the description ‘ought to know’ as being –
… premised on the assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken.[38]
[38]Ibid [57].
His Honour thereafter identified that in s 50D(2) the phrase ‘ought to have known’ was premised in the notion that the person concerned ‘should have inquired as to a fact’ in the sense that not having done so was a ‘culpable omission’.[39]
[39]Baker-Morrison (n 31) [59].
Later the same year, the New South Wales Court of Appeal considered the provision again in Frizelle v Bauer.[40] In that instance, in July 2003, the applicant fell from a staircase that did not provide any handrails. She fractured her left kneecap and was rendered unconscious. Her injuries put her out of work for a period and she later had to enter other and casual employment. The applicant had sought legal advice in July 2003, but did not commence proceedings until April 2007. In evidence, she conceded that in July 2003, after receiving the advice of her solicitor, she knew that her injuries were sufficiently serious to warrant commencing proceedings. Basten JA (with whom McColl JA agreed) considered the case to fall into a category different to Baker-Morrison. The finding that the applicant’s claim was barred was undisturbed.
[40][2009] NSWCA 239 (‘Frizelle’).
Matters ultimately came to a head in State of New South Wales v Gillett,[41] in which the appellant challenged the correctness of Baker-Morrison. A five member bench of the Court of Appeal was assembled. In that case, the respondent claimed negligently to have suffered a workplace psychiatric injury. The respondent pursued his grievance over a considerable period, but received advice to the effect that he did not have a claim at least in part because there was not enough evidence. Later, the respondent received different legal advice and then commenced proceedings in which the alleged negligence was founded in an claimed failure of the Police Service to provide all information and documents to the respondent during an investigation into his conduct.
[41][2012] NSWCA 83 (‘Gillett’).
Beazley JA (with whom the other members of the Court of Appeal relevantly agreed) surveyed the legislative provisions and confirmed that the appellant had borne the onus of establishing that the cause of action was ‘discoverable’ prior to 24 October 2005.[42]
[42]Ibid [26].
Her Honour noted the contention of the appellant that the respondent knew that the injury had occurred and that it was caused by the ‘fault’ of the respondent, ‘even though the precise cause of action pleaded in the statement of claim had not emerged’.[43] In argument, the appellant relied upon Spandideas. The appellant contended that it was not necessary that the respondent know that the conduct causative of loss was ‘legally actionable’.[44]
[43]Gillett (n 41) [30].
[44]Ibid [80].
For his part, the respondent submitted that ‘fault’ engaged ‘legal actionability’, although the respondent need not know precisely the identity of the cause of action.
Her Honour surveyed Spandideas, Baker-Morrison and Frizelle.[45] In that connection, her Honour came to approve the approach adopted by Basten JA in Baker-Morrison: a cause of action is discoverable when a plaintiff knew or ought to have known the ‘key factors necessary to give rise to liability’.[46] Her Honour did not follow Spandideas; particularly that part of the reasoning that suggested that ‘fault’ in any broad sense of ‘blameworthiness’ could be sufficient.[47]
[45]As well as another relevant decision of the New South Wales Court of Appeal: Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 (‘Bostik Australia’).
[46]Gillett (n 41) [94].
[47]Ibid [52], [65], [95] and [98].
In so reasoning, her Honour confirmed that –
… for the purposes of “fault” in s 50D(1)(b), a defendant had to establish that the plaintiff knew the matter was legally actionable. What that involved in a particular case would depend upon the relevant facts and circumstances …[48]
[48]Ibid [97].
As her Honour thereafter noted, the application of that construction in a particular case ‘may not always be straightforward’.[49]
[49]Ibid [98].
I should add that her Honour also confirmed the construction of s 50D(2) stated by Basten JA in Baker-Morrison. Her Honour stated as follows –
…As I understand his Honour’s reasons, Basten JA was doing no more than postulating an objective test. For the purposes of s 50D(2), the court had to determine whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court’s determination of what were reasonable steps to take in the particular circumstances of a given case.[50]
[50]Gillett (n 41) [104].
In the circumstances, her Honour accepted the following –
… The respondent acknowledged that he knew that he had suffered a psychiatric injury at an early stage after the conclusion of the criminal proceedings. He sought advice as to whether there was anything legally he could do about that. He received legal advice that he could not. The respondent submitted that in those circumstances, the cause of action was not discoverable unless and until he received legal advice that the State was legally liable for his injury.[51]
[51]Ibid [109].
Campbell JA published additional reasons with which McColl, Young and Whealy JJA relevantly agreed. In respect of s 50D(1)(b) and (c), his Honour stated –
… For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff’s own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being “fault”, actionability is likewise one of the “key factors necessary to establish liability” that must be known before s 50D(1)(b) is satisfied.[52]
[52]Ibid [131].
In the present instance, the first plaintiff came to rely upon Gillett and submitted that it should be followed.[53] Beyond that, the first plaintiff submitted that it was not necessary to determine whether Spandideas or Gillett should be followed as ‘on either view, the [first plaintiff] establishes the necessary discoverability criteria’.[54]
[53]T117-118.
[54]Outline of Plaintiffs’ Final Submissions [6].
For his part, the fifth defendant submitted that the Court should follow Gillett.
By contrast, the third and sixth defendants submitted that –
…given the uncontroverted and consistent line of authority in Victoria over a significant period of time, the approach of Kaye J in Spandideas should be adopted.[55]
[55]Submissions on Behalf of the Third and Sixth Defendants dated 13 May 2022 [15].
In oral address, senior counsel for the third and sixth defendants submitted that determining whether Spandideas or Gillett should be followed was really for ‘another court at another time’, albeit that that the ‘settled Victorian authority’ ought be followed. That said, senior counsel submitted that ‘either way … that test is not satisfied by the facts of this case’.[56]
[56]T121-122.
I have earlier referred in passing to the so-called ‘settled’ and ‘uncontroverted and consistent’ line of Victorian authority. It must be said that all but one of those authorities pre-date Gillett, and the only decision which post-dates Gillett does not refer to it.[57] However, both that decision and two of the earlier decisions, betray a mindfulness of the potential significance of Baker-Morrison without any need, at that point, further to engage upon the issue.[58]
[57]Angeleska v State of Victoria & Ors [2013] VSC 598 (‘Angeleska’). I note that Lansdowne AsJ observed that the defendants did not give the issue of ‘discoverability’ any ‘detailed attention’: see, [130].
[58]Delai v Western District Health Service & Anor [2009] VSC 151 [15] fn 25, GGG v YYY [2011] VSC 429, [213] fn 52 and Angeleska (n 56) [130] fn 75. I should, perhaps, add that in Donmez v Neissa & Anor [2012] VSC 73 – which preceded Gillett – the applicability of Spandideas was not placed in issue: see, [26].
The present issue does not directly affect the fourth defendant or, for that matter, the second plaintiff.
As between the Victorian and New South Wales legislation, it may be seen that there are greater or lesser differences in –
(a) the statutory history;
(b) the precise terms of the ‘discoverability’ provisions; and
(c) the overall legislative schemes.
Among other things, the legislation in New South Wales contains no relevant equivalent of sections 27L and 27K of the Limitations of Actions Act. That said, the ‘discoverability’ provisions in each State are practically identical, as is their genesis and evident overall objective.
In that regard, the provisions form part of a national sequence of legislative amendments and innovations implemented following the ‘Review of the Law of Negligence’. Whilst those legislative initiatives are not wholly ‘uniform’, there is, as I have noted, a significant measure of uniformity between the text of the ‘discoverability’ provisions in Victoria and New South Wales.
In the circumstances, it may, perhaps, be debateable whether the circumstances engage the principle of uniformity of construction in respect of uniform legislation referred to in Farah Constructions Pty Ltd v Say-Dee Pty Ltd.[59] Albeit that the fifth defendant relied upon that authority in connection with its submission that Gillett should be followed, the question whether the legislation concerned was both national and uniform was not further developed.
[59](2007) 230 CLR 89 [135]. Cf., Hill v Zuda Pty Ltd [2022] HCA 21 [25]-26].
The principles concerned – and others like them[60] – are intended to be aids to construction and coherence, and in the present instance the benefit in practically identical legislative provisions being interpreted consistently is plain: particularly when a Court of Appeal of five members was assembled in Gillett that ultimately confirmed the approach to construction established in Baker-Morrison; and in each case Spandideas was both discussed and not followed for reasons that were explained in some detail.
[60]Camden Park Estate Pty Ltd v O’Toole [1969] 1 NSWR 784, 785.
For those reasons, I would accept that in respect of section 27F of the Limitation of Actions Act I should follow the construction approved by the New South Wales Court of Appeal in Gillett in respect of section 50D of the Limitation Act.
That said, having surveyed the authorities in some detail, I tend to think that in most if not all cases the practical difference between the approaches in Spandideas and Gillett are unlikely to be significant.
The essence of the difference is that via the natural and ordinary meaning of the word ‘fault’, the approach adopted in Spandideas admits of the possibility that ‘fault’ may be known or constructively known in the sense of a culpability or ‘moral blameworthiness’ of the defendant that is wider or more diffuse than that of ‘legal liability’ or ‘actionability’.
On the other hand, the line dividing ‘legal liability’ and ‘moral blameworthiness’ is necessarily imprecise and there is very often a significant overlap between them.
Further, as Beazley JA identified in Gillett, establishing knowledge of ‘legal liability’ or ‘actionability’ is directed only to the ‘key factors necessary to give rise to liability’ and ‘would depend upon the relevant facts and circumstances’ and ‘may not always be straightforward’. It follows that it will not be necessary for there to be knowledge or constructive knowledge of the precise cause of action in order to engage the statutory notion of ‘discoverability’.
Further, as demonstrated by Frizelle, a combination of simple facts and a degree of legal advice could be sufficient for the cause of action concerned to have been ‘discoverable’. However, more was found to have been required in each of Baker-Morrison and Gillett.[61] In each those cases, the basis for any liability of the defendant was, for a variety of reasons, considerably more complicated, obscure and subtle.
[61]As well as, for that matter, in Bostik Australia (n 45).
In that connection, Beazley JA in Gillett identified examples of other cases of a complicated kind in which it may be necessary to obtain and receive legal or other expert advice prior to a plaintiff ‘knowing’ that a particular defendant is ‘at fault’ or ‘to blame’. In such an instance, the harbouring by the particular plaintiff of a general grievance or suspicion that there might be a case may well be insufficient to engage the statutory notion of ‘discoverability’.
In many respects, Spandideas was a case of exactly that kind. As I have earlier noted, the plaintiff had long carried a grievance or suspicion in respect of events in and since the birth of her child in February 1996. However, Kaye J accepted that it was not apparent to the plaintiff that the defendant was ‘to blame’ until she received that advice from Mr Douglas, colorectal surgeon, in August 2006. That advice was, of course, received in a context in which the plaintiff had retained solicitors and was contemplating or at least investigating the potential for litigation.
In that sense, it is evident that the grievance or suspicion of the plaintiff in Spandideas – untethered to the acts and omissions of the particular defendant – was insufficient to engage the statutory notion of ‘discoverability’.
Further, the advice of Mr Douglas might be said to have engaged the ordinary and natural meaning of ‘fault’, but it also amounted to advice to the effect that the fault concerned could be ‘actionable’ against a particular defendant.
So understood, it will be apparent that the underlying circumstances in Spandideas bear considerable similarities with many of those considered later in Gillett.
In that regard, in my view, the result of Spandideas would likely have been the same had the approach in Gillett been applied. For that matter, I consider it to be equally likely that, one way or another, the results in Baker-Morrison, Frizelle and Gillett would have been the same if the approach in Spandideas had been applied.
In light of the above, and without seeking to be categorical, it seems to me that – whichever of the two approaches is or was ultimately applied – most cases of the kind generally under consideration would ultimately have been likely to turn upon whether the plaintiff concerned had or should have had an appreciation that the ‘fault’ concerned could have been ‘actionable’ against a particular defendant.
It might be that the real area of potential difference between the approaches relates to constructive knowledge – that is, what the plaintiff ‘ought to have known’ as a consequence of a train of inquiry provoked by a sense of general grievance or suspicion. On the other hand, constructive knowledge was not established by the defendant in any of Spandideas, Baker-Morrison or Gillett. Even in respect of constructive knowledge, those cases tend to show that the practical difference between the approaches is likely to be small.
That brings me to the circumstances of the present case and the claims made against the third, fifth and sixth defendants. I have earlier referred to both the documents at the centre of the plaintiffs’ claims and the respective roles of the third, fifth and sixth defendants in respect of the investigation and/or management of the first plaintiff’s pregnancy in 2007. In that regard, in a closing outline of submissions, the plaintiffs described the essential claims made against those defendants (and the fourth defendant) as ‘boil[ing] down’ to the following –
… As against the Third, Fourth and Sixth Defendants, the Plaintiff[s] allege that the [March ultrasound report] was not appropriately acted upon by the Third Defendant, nor correctly utilised by the Fourth Defendant in its [1st trimester combined screen report], nor considered and acted upon by the Sixth Defendant. With respect to the Fifth and Sixth Defendants, the fault alleged is the failure adequately to respond to the inadequacy of the [May ultrasound report].[62]
[62]Outline of Plaintiffs’ Final Submissions [14].
I have noted that the first plaintiff made an affidavit[63] and was required for cross-examination. In that connection, the first plaintiff was born in 1980 and deposed to epilepsy and dyslexia that contributed to her finishing school at the end of Year 9. Prior to that time, she had suffered very serious abuse that required significant psychiatric treatment in the course of which she had been diagnosed with a borderline personality disorder and depression. The first plaintiff also engaged in substance abuse, self-harm and attempted suicide. Between 1997 and 2001, she received the disability support pension and did not work.
[63]Exhibit A: Affidavit of Belinda Moore sworn 6 October 2020.
The first plaintiff and second plaintiff met in 1995 and were married in 2004. From 2002, the first plaintiff returned to and ultimately completed Year 10. She also undertook several TAFE courses. By early 2007, she was working part time at the check-out at Coles in Albury. She continued in that work until she was 32 weeks pregnant.
Prior to the birth of her son, Corey, at Wodonga Hospital on 26 September 2007, the first plaintiff was advised that her baby would be healthy.[64] In fact, however, he was ‘born dead’ and had to be resuscitated.[65] The doctors did not know what was wrong with him and he was transported to the Royal Children’s Hospital in Melbourne.
[64]T66.
[65]T63.
That night, the first plaintiff was told that her son had a heart condition. At that time, she was angry and thought it ‘should have been picked up in the ultrasounds’.[66] She wondered why it had not been picked up. The first plaintiff considered approaching a lawyer, but did not ‘because there was too much going on with Corey’. She has always ‘wondered’ why the heart condition was not picked up.[67] From time to time she ‘thought about going to lawyers’, but was ‘busy’.[68]
[66]T70 and T82.
[67]T70.
[68]T82.
With some understatement, the first plaintiff gave evidence that Corey was ‘a very sick baby’ during the first seven weeks of his life.[69] She could not hold him ‘until day four’.[70] During that period, he ‘died five times and was on life support five times’.[71] He was investigated by MRI and the first plaintiff was told that he did not have brain damage. She and the second plaintiff decided not to turn off life support.[72]
[69]T67.
[70]T71.
[71]T66-67.
[72]T70-71. See also, T78.
At seven weeks, Corey had heart surgery. After that, the first plaintiff was told that Corey was healthy, save for needing to have further heart surgery in his teens.[73]
[73]T84-85.
Corey had a tracheotomy at eight weeks and was connected to a CPAP machine. The machine was removed and tracheotomy closed when he was about 15 months of age. Corey was at the Royal Children’s Hospital for about a year. During that time, the first plaintiff lived in Melbourne and attended the hospital every day.
After that, Corey was in hospital in Albury for a further three months. He did not return home to the first plaintiff until November 2008. When Corey was about two, the first plaintiff was told that he would ‘live a normal, happy life’.[74]
[74]T68.
In those circumstances, the first and second plaintiffs decided to have a second child; a son, Jarrod, was born in November 2009.[75] It later emerged that Jarrod had autism and ADHD.[76]
[75]T85.
[76]T57.
When he was about two years of age, Corey started to exhibit behavioural problems. His paediatrician at that time was Dr Douglas. At some point, the first plaintiff looked on the internet and thought that Corey had autism. She also seems to have ‘wondered’ about his early circumstances, ‘because Corey was cared for by doctors and nurses’.[77] In that part of her evidence, it seemed – from the tone of it – that the first plaintiff at times attributed aspects of Corey’s behaviour to him having been cared for in the hospital after his birth and even to herself.
[77]T67.
In 2011, Corey was referred to Professor Tonge, a child psychiatrist. The first plaintiff consulted Professor Tonge in September 2011. At that time, Professor Tonge was not of the opinion that Corey had autism; he diagnosed a frontal lobe syndrome, subsequently confirmed by a neuropsychologist.[78] The first plaintiff was angry and in shock. As she put it –
So how could he not have brain damage as a baby to having brain damage now at the age of four, or five?[79]
[78]T57.
[79]T82.
At that time, Professor Tonge reported to Dr Douglas, relevantly, as follows –
… Corey presents with a complex interaction of neurodevelopmental and experiential problems which give rise to his unstable and reactive behaviour, his impulsiveness and poor emotional regulation, and his fluctuating problems with social interactions, play and communication difficulties.
It is possible that his complex birth and subsequent life threatening cardiac abnormalities and congenital laryngomalacia, has compromised the development of his brain with consequent frontal and frontostriatal dysfunction. Frontal lobe syndromes can present with some of the behavioural and emotion regulation problems that Corey has. His highly stressful first years of life are also likely to have affected his attachment and made him vulnerable and hyper-reactive to subsequent stresses and situations he perceives as threatening. … Although he has some symptoms seen in children with Autism, his social interactions vary; he is capable of joint attention, and though his language is delayed, he tries to compensate with gesture and has responded to his mother, Belinda’s use of signs. He has a range of play interests such as drawing and making imaginary objects with Play Doh. I observed him to spontaneously play a feeding game with toy utensils. He has no motor mannerisms. Therefore, I have concluded that he does not have Autism to further complicate the other problems I have mentioned…[80]
[80]Exhibit B: Affidavit of Anne Shortall affirmed 6 October 2020, exhibit ‘AS-5’.
In that connection, the first plaintiff seemingly did not initially draw a connection between Corey’s brain damage and ‘what happened around the time he was born’. [81] She referred to the fact that she had been told that there was no brain damage (after the early MRI) and also noted –
Well, obviously, when he died he had lack of oxygen to the brain, when he was on life support he had lack of oxygen to the brain …[82]
[81]T77.
[82]T78.
The first plaintiff seems also to have continued to associate at least some of Corey’s behaviour with autism, albeit that Professor Tonge had not diagnosed it.[83] That said, Professor Tonge did later diagnose Corey with autism (in about 2014).
[83]See, T72.
The first plaintiff’s state of mind at that time is evident in the following evidence concerning whether she had thought that Corey’s frontal lobe damage had ‘something to do with what happened when he was born’ –
I can’t remember how, what I thought back then, ‘cause I was trying to deal with what I was told, um, at those appointments, and then getting told something different again, so I was given one diagnosis and then I was given another, so every time, I was finding out something different, so I was trying to deal with one thing at a time, and then something else would happen, and then trying to deal with Corey’s behaviour as well was very hard and very, very traumatic for me.[84]
[84]T75.
Dr Douglas later retired and was replaced by a Dr Christie. Dr Douglas and/or Dr Christie suggested to the first plaintiff that Corey’s brain damage had been caused by a lack of oxygen ‘due to the way he was born’.[85] It seems also to have been suggested that the lack of oxygen was due to being on life support.[86]
[85]T56 and T76.
[86]T76.
In evidence, the first plaintiff confirmed that diagnoses of autism, intellectual disability, attention deficit hyperactivity disorder, oppositional defiant disorder and language disorder had been made in respect of Corey.[87] It seems that there was and always has been a lot of investigation and treatment, and the various diagnoses revealed themselves over time. The first plaintiff said ‘every year I found out there was something more wrong with Corey’.[88]
[87]T57.
[88]T75.
It is difficult to overstate the dimension of the challenges faced by the first plaintiff during that time. In respect of investigation and treatment alone, the first plaintiff’s solicitor later prepared a summary from the clinical records covering the period in and following Corey’s birth on 26 September 2007 to 2 February 2017. The summary occupies approximately 17 single spaced pages of text; and the period from Corey’s birth to the consultation with Professor Tonge occupies 13½ of those pages.[89]
[89]Exhibit B: Affidavit of Anne Shortall affirmed 6 October 2020, exhibits ‘AS-39’.
When asked about whether she had thought about going to see a lawyer after being told about Corey’s brain damage, the first plaintiff’s evidence might be read to have slightly varied. When first asked, she said –
No, that didn’t enter my brain, because I was so overwhelmed with all the different diagnoses that I had to deal with. I just found out my son got frontal lobe syndrome and then I found out my son has autism and ADHD. I was getting told different diagnoses all the time. He was seeing so many different people, I can’t recall every conversation that I had with everybody, but I was so – I was so busy trying to deal with Corey’s medical needs and appointments as well as trying to deal with my own mental health and the way I was feeling. … My life was full-on. I – Corey didn’t sleep at night time, I’ll be in his room from 6 o’clock at night and fallen asleep on the floor at midnight because he wouldn’t go to sleep, him waking up at 2, 3 o’clock in the morning, demanding breakfast. I – I had so much to deal with Corey, and my mental health, and also Jarrod [the second son]…[90]
[90]T80-81.
Later, she said ‘possibly’, although she also said that she could not remember.[91]
[91]T82.
In my view, this part of the first plaintiff’s evidence is best understood as amounting to the occasional ‘wondering’ as to how the circumstances in which she found herself could have come about, together with thoughts about attending a lawyer to see whether there might be an explanation that could be said to give rise to a legal liability in any of the practitioners involved.
Those thoughts were, however, surrounded by highly distressing and demanding events and none of treating doctors at that time seem to have been providing any definitive answers or to have been suggesting that the first plaintiff seek advice from a lawyer.
Further, in circumstances in which the first plaintiff was plainly dealing with a very difficult, distressing and evolving medical situation (personally and particularly in connection with Corey), I can quite understand why any person in that position might be slower to initiate enquiries of a legal kind that might be at risk of disturbing or altering the foundations for the medical advice and supports that she was so desperately reliant upon.
I am, of course, conscious that that the first plaintiff did not give that evidence directly, however it is a common sense concern and it was consistent with and even implicit in some of the evidence that she did give. In that regard, in the course of the first plaintiff’s evidence it was quite apparent that she was very reliant upon medical advice and assistance at that time, and that attending a lawyer was not the rather straightforward and even trivial step that some of the questions posed to her in cross-examination seemed to suggest.
In that connection, as to whether she could ‘not have spared a couple of hours to go and see a lawyer … just a couple of hours’, the first plaintiff replied –
I was on an emotional rollercoaster, I don’t know, maybe I could have, but I was dealing with so much at that time, I was – ‘cause, yeah, Corey was five, six, when he was six his behaviour became more out of control, and he was – I – he was lashing out at me every day, like he was giving me split lips, and splitting my eyebrow and - - -[92]
[92]T85.
The substance of the first plaintiff’s evidence was that until about 2016 she ‘had so much going on in my life with Corey that I had no time to go and speak to a lawyer or get legal advice’.[93]
[93]T84.
As to her son’s behaviour, in particular, the first plaintiff deposed that –
From about 2 years of age, Corey’s behaviour continued to deteriorate and he became more violent. He had frequent “meltdowns” in which he would kick, scream, throw things and hit and punch me. He was very violent towards me, and he would physically assault Jarrod. Corey was extremely demanding. If I did not attend to him when he yelled at me, he would have a meltdown, with screaming, kicking, throwing things, and punching walls. We had to hide all the kitchen knives as he would threaten me with the knife. He began running away from home. He had to put locks on all the windows and doors. We built a 6-foot fence around the house, to stop him leaving the house. When in the car with me, if the child locks were not on, he would open the car door and jump out of the car. If seated behind me whilst I was driving, he would suddenly try to choke me, or cover my eyes with his hands. At other times, he would suddenly take off his seatbelt, and jump into the boot of the car. If he managed to escape from home he would run onto the road without any regard for the cars, often running in front of cars. His behaviour became so bad, that the police became involved, and ultimately the Department of Community Services, (“DOCS”). We tried everything we could think of to obtain help for Corey and to deal with his behaviour. In addition to attending speech therapy, occupational therapy and physiotherapy, we also took him to Coral Tree in Manly, NSW, in order to learn how to restrain him during his meltdowns. Corey’s behaviour at school was also extremely disruptive, resulting in frequent suspensions. He has escaped from the school, taken off his clothes and climbed onto the roof of the school. On one occasion he took out the entire internet service at Belvoir Special School. He has been suspended from that school on about 4 occasions. From Year 2 to Year 6, there have been more than 600 incidents at school involving Corey. During most of those incidents, I have been called to the school to take him home. Corey was commenced on a number of medications to try and deal with his behaviour. At times during the trialling of new medication when the older medication no longer worked, there would be an escalation of his violent behaviour. I have had to take him to the emergency department of Albury Hospital on numerous occasions due to his violent and out of control behaviour.[94]
[94]Exhibit A: Affidavit of Belinda Moore sworn 6 October 2020 [23].
It will be evident that in the circumstances described the first plaintiff’s mental health also deteriorated. She sought treatment in 2011 and also took medications. In October 2013, she was admitted to hospital with stroke-like symptoms, later considered to have been the product of a conversion disorder. She could not use her left arm and leg and had trouble speaking. She had to learn to walk and talk again. She was also diagnosed with borderline personality disorder, post-traumatic stress disorder, anxiety and depression. She was admitted to hospital with symptoms again in July 2014.[95]
[95]Ibid [29].
Notwithstanding the above, in evidence the plaintiff was asked about starting a TAFE Certificate 3 in Business Administration in 2013[96] and said –
… I suffered like a stroke when I was doing that course, so I – I had to go back a year after, so I – yeah, I was in hospital, um, ‘cause I suffered like a stroke, but they didn’t class it as a stroke because there was no blood clot or bleed in my brain, they just said due to the anxiety and stress I was under my body had basically done that to me, but I had to walk, talk and eat again, I was in hospital for two months to learn how to walk, talk and eat by the stress of Corey, at the age of eight, Corey was chasing me around the house trying to stab me with a knife. So I’ve had, so I’m sorry, but - - -[97]
[96]I note that while the question concerned was understood as directed to the Certificate 3 in Business Administration in 2013, it had earlier been established in cross examination that the course had covered the period 2013 to 2015: see, T53.
[97]T86-87.
The first plaintiff confirmed that it had not entered her mind to see a lawyer at that time.[98]
[98]T88.
In re-examination, the first plaintiff explained that doing the course had relieved her mental stress because she could be around adults and had been hoping to re-enter the workforce.[99] In that connection, she said –
… once I finished the certificate, um, I couldn’t get employment because I couldn’t work school hours with, while Corey was at school, and the fact that I was getting called all the time to the school to pick him up. It was shown that I wouldn’t be able to go into the workforce.[100]
[99]T88-89.
[100]T88-89.
In August 2016, the first plaintiff started psychological treatment with Dr Blane-Brown. In evidence, she explained as follows –
… Dr Maureen Blane-Brown basically said she can’t help me because I was going home to the problem. Until I got Corey sorted out my depression was going to stay the same, it wasn’t going to get better and Dr Maureen Blane-Brown diagnosed me with severe depression, severe PTSD, anxiety. I had so much going on in my life with Corey that I had no time to go and speak to a lawyer or to get legal advice. It wasn’t until after I spoke to Maureen Blane-Brown, and she told me, because she works in forensic stuff as well and she’s the one that said “I believe you’ve got a case, I believe you need to go and speak to somebody about it now”, and at that stage things were getting a little bit easier with Corey, but then I rang and spoke to a lawyer, and then I found out that I had a case and I went from there…[101]
[101]T84.
The last part of that passage of evidence significantly abbreviates the course of events that unfolded after the first plaintiff was advised by Dr Blane-Brown to see a solicitor – of which events there was ultimately essentially no criticism.[102]
[102]Cf., Submissions on Behalf of the Third and Sixth Defendants dated 13 May 2022 [52]-[53].
In that connection, the first plaintiff approached Slater & Gordon and had an appointment with Ms Shortall, solicitor, on 17 November 2016. It was not in issue that Ms Shortall is a solicitor with considerable experience in the field of medical negligence. I have earlier noted that Ms Shortall prepared several affidavits. She was called to give evidence but, ultimately, not cross-examined by counsel for any defendant.
Based on the appointment with the first plaintiff on 17 November 2016, Ms Shortall considered there to be possible claims in negligence, including in respect of the cardiac abnormalities.[103] Her notes of that attendance suggest that at that time she considered the advice given by Professor Tonge in September 2011 to be ‘the date of discovery’.[104] A lengthy process followed in which Law Aid funding was sought and records from various sources requested, obtained and reviewed.
[103]Exhibit B: Affidavit of Anne Shortall affirmed 6 October 2020 [6].
[104]Ibid, exhibit ‘AS-2’.
In October 2017, Ms Shortall approached Professor Hyett, obstetrician and gynaecologist at Royal Prince Alfred Hospital in Sydney, to see whether he could ‘provide his opinion regarding the medical treatment of the First Plaintiff during her pregnancy and labour in order to determine liability’.[105] That was confirmed on 13 April 2018 and a period ensued in which Ms Shortall politely requested receipt of the opinion sought.
[105]Exhibit B: Affidavit of Anne Shortall affirmed 6 October 2020 [35].
I have already referred to the dimension of the letters of instruction provided to Professor Hyett.[106] It should be noted that, among other things, those letters referred to –
[106] Ibid, exhibits ‘AS-22’, ‘AS-27’ and ‘AS-39’.
(a) many examinations and investigations undertaken in the course of first plaintiff’s pregnancy, including at least three ultrasounds;
(b) the March ultrasound report, including the fact that it recorded a nuchal translucency measurement of 11mm; and
(c) the May ultrasound report, including the fact that it recorded that it had been a technically difficult study.
The questions posed in the letters to Professor Hyett revealed the expertise of the instructing solicitor. However, none of those questions was directed specifically to either the nuchal translucency measurement in the March ultrasound report or the fact that the May ultrasound was recorded as having been technically difficult. The first question simply asked, more broadly, whether ‘the ultrasound scans indicate any cardiac issues suggesting Fallot’s tetralogy’.[107]
[107]Exhibit B: Affidavit of Anne Shortall affirmed 6 October 2020, exhibit ‘AS-22’, 22.
In a telephone conference on 27 August 2018, Professor Hyett advised, in substance, that[108] –
[108]Ibid [45]-[46]. See also, exhibit ‘AS-31’.
(a) the nuchal translucency measurement in the March ultrasound report was abnormally high at 11mm;
(b) the file of the fourth defendant should be obtained to check whether that measurement was given to it in connection with the 1st trimester combined screen report;
(c) it was possible that the measurement of 11mm was an error and that the nuchal translucency had been 1.1mm rather than 11mm;
(d) it was surprising that the May ultrasound did not reveal the cardiac abnormality;
(e) if significant cardiac abnormalities of this nature were diagnosed, counselling in respect of the termination of the pregnancy should have been provided;
(f) the baby should have been delivered in a tertiary hospital with a neonatal ICU and access to paediatric cardiac surgeons; and
(g) the labour was managed appropriately.
Ms Shortall deposed that it was in the telephone conference that, for the first time, she learned that –
(a) a nuchal translucency reading of 11mm was abnormally high; and
(b) Corey’s cardiac abnormalities should have been detected in the May ultrasound.[109]
[109]Exhibit B: Affidavit of Anne Shortall affirmed 6 October 2020 [48]. See also, [7].
After the telephone conference with Professor Hyett, Ms Shortall advised the plaintiff and pursued further records. At that time, Ms Shortall appears to have believed that the statutory limitation period (for Corey) would expire on 26 September 2018.[110]
[110]Ibid [49].
The writ was forwarded for filing on 27 September 2018 and ultimately accepted on 10 October 2018.[111] The pleading did not then name the present fourth defendant, because Ms Shortall was not then aware that it ‘had applied a nuchal translucency measurement of 1.1mm rather than 11mm’.[112] As I have earlier indicated, the writ was amended to substitute the present fourth defendant on 16 March 2020.
[111]Exhibit B: Affidavit of Anne Shortall affirmed 6 October 2020 [54].
[112]Ibid [57].
A full report was ultimately provided by Professor Hyett on 23 July 2019,[113] and a note of a further conference with Professor Hyett is dated 22 June 2020.[114]
[113]Ibid, exhibit ‘AS-49’.
[114]Ibid, exhibit ‘AS-51’.
Ms Shortall also obtained a report from Dr Michael Harbord, paediatric neurologist, dated 1 October 2019.[115] That opinion is directed, relevantly, to the connection between Corey’s neurodevelopmental and behavioural issues and his congenital cardiac defect.
[115]Ibid, exhibit ‘AS-50’.
Mr Shortall also made three further affidavits directed to further explanation of her actions and other events in respect of the claims.[116] The final affidavit helpfully assembled the documents central to the claims now made – in particular, the various ultrasound reports and what was referred to in argument as the ‘sonographer’s worksheet’.
[116]Exhibit C: Affidavit of Anne Shortall affirmed 14 April 2021, Exhibit D: Affidavit of Anne Shortall affirmed 21 April 2021 and Exhibit E: Affidavit of Anne Shortall affirmed 6 May 2022.
In the overall context described, the third and sixth defendants submitted that in the period shortly after Corey’s birth the first plaintiff either knew ‘that his injuries were the fault of those who took or interpreted his ultrasounds’ or ‘would have’ known ‘these matters’ if she had ‘set in motion further inquiries and assessments by her legal representative’.[117]
[117]Submissions on Behalf of the Third and Sixth Defendants dated 13 May 2022 [29]-[30].
As to the period after receiving advice from Professor Tonge in late 2011, the third and sixth defendants submitted as follows –
35.The information she [the first plaintiff] obtained from Professor Tonge, and then Drs Douglas and Christie, ought to have compounded her suspicions and propelled her to set in motion the taking of reasonable steps through a legal representative to ascertain whether her suspicions were well-founded.
36.Thus, the cause of action which she initiated subsequently was discoverable around the time of Corey’s birth and/or at the time of her consultation with Dr Tonge in 2011 and/or the subsequent consultation with him early in 2012 and/or during 2012 when she consulted Drs Douglas and Christie.
37.This would result in a discoverability date significantly earlier than the long-stop period, namely, put generally, late 2010, late 2014 or early 2015. Each of these dates is well before the date of the filing of the Statement of Claim on 27 September 2018, rendering it non-compliant with the permitted limitation period.[118]
[118]Submissions on Behalf of the Third and Sixth Defendants dated 13 May 2022 [35]-[37].
For his part, the fifth defendant submitted that the first plaintiff’s cause of action was discoverable –
(a) in 2011, when she consulted Professor Tonge and her own psychiatric condition was said to be ‘sufficiently serious to ignite the operation of s 27F(1)(c)’;
(b) alternatively, in 2012 when ‘Corey’s behaviour started to deteriorate’;[119] and
(c) further or alternatively, perhaps, in 2013, when the first plaintiff was ‘attending her course … (and passed it successfully) … [and] should have taken further action to investigate the possible “fault” of the Fifth Defendant (or any of the defendants)’.[120]
[119]Fifth Defendant’s Submissions dated 13 May 2022 [2]-[3] and [28].
[120]Ibid [48].
To some extent the written closing submissions of the fifth defendant may be read as addressing the state of mind of the first plaintiff from the time of Corey’s birth, which can make the associated submissions concerning ‘this time’ and ‘this point’ appear to be directed to the point of or shortly after birth. Assuming, however, that the submissions are directed to the dates otherwise identified, the real nub of the submission seems to be as follows –
Here you have a plaintiff who, from the very moment her son is born, she states that she had a desire to explore matters further to identify whether any action could or should be taken. Even if the Court does not accept that the first plaintiff knew at this time that the problems that Corey was experiencing were as a result of the fault of the Fifth Defendant or any of the Defendants, then at the very least at about this time it is prudent to expect that a person in the First Plaintiff’s position should have made relevant enquiries to cement the serious concerns she had about these congenital defects not being identified in an ultrasound.[121]
[121]Fifth Defendant’s Submissions dated 13 May 2022 [42].
I have already noted that the onus of establishing ‘discoverability’ rests upon the defendants.
It is also important to note that the ‘discoverability’ of ‘a cause of action’ is established by proving ‘the first date’ that the plaintiff ‘knows or ought to have known’ of all three of the statutory ‘facts’ stated in section 27F(1). As the reasoning in Baker-Morrison and Gillett tends to demonstrate, it is not merely a question of ‘knowing’ that the personal injury concerned was ‘caused by the fault of the defendant’.
In the present instance, I cannot accept that shortly after Corey’s birth the first plaintiff ‘knew’ of all three statutory ‘facts’, particularly that her personal injury or that suffered by Corey (which would give rise to the need for costs of care and the like) was ‘caused by the fault’ of the third, fifth or sixth defendants. In that regard –
(a) while the first plaintiff said that she ‘believed that Corey’s heart condition should have been picked up in my ultrasounds’, she also agreed with the characterisation of her state of mind at that time as amounting to ‘wondering’ why the heart defects were not picked up;[122]
[122]T65.
(b) such a generalised state of mind does not seem to me to amount to knowledge of the ‘key factors giving rise to liability’;
(c) in particular, there is nothing about such a state of mind that could be said to connect with any identified factors comprising a potential legal liability of any of the three defendants now identified (or, for that matter, any other potential defendant);
(d) in that regard, I am conscious that in the note of conference with Professor Hyett on 27 August 2018 he is recorded as expressing the view that ‘about 50% of cardiac abnormalities are missed on scanning’[123] – which may suggest that the mere fact that a cardiac abnormality is ‘missed’ does not mean that anybody associated with undertaking a scan that does not detect such an abnormality must be negligent;
(e) further, I am mindful that the claim that has ultimately come to be pursued against the third, fifth and sixth defendants is not primarily focussed upon any ‘failure’ to detect the congenital heart abnormalities in the March and May ultrasounds – as against the third and sixth defendants the primary contention is directed to the nuchal translucency measurement of 11mm and against the fifth defendant the primary contention seems to be that he should have initiated further investigations; and
(f) nor does a general suspicion concerning the ‘ultrasounds’ seem to me specifically to implicate the March or May ultrasounds (as there was evidently at least one other ultrasound undertaken) or, for that matter, the third, fifth or sixth defendants (none of whom were mentioned by name in the first plaintiff’s evidence).
[123]Exhibit B: Affidavit of Anne Shortall affirmed 6 October 2020, exhibit ‘AS-31’.
Further, albeit that the plaintiffs’ written submissions do not advance an argument to the effect that ‘the fact of personal injury’ was known to be ‘sufficiently serious to justify the bringing of an action on the cause of action’[124] – the onus in respect of that statutory ‘fact’ rests on the third, fifth and sixth defendants.
[124]Outline of Plaintiffs’ Final Submissions [15].
In that connection, I do not accept that such a state of mind of the first plaintiff has been established in connection with the period shortly after Corey’s birth. In addition to the above points concerning the first plaintiff’s generalised state of mind going nowhere near engaging with any key factors that might have indicated any legal liability of the third, fifth or sixth defendants, it must further be said that –
(a) such evidence as the first plaintiff might be said to have given concerning her post-partum psychiatric condition does not seem to be indicative of a significant difference compared with that prior to the event – at least not a difference that would have justified proceedings – and the true dimension of that difference was not really explored or established in evidence;
(b) further, the first plaintiff’s concern at the time seems to have been mostly related to Corey’s heart and other conditions and not her own psychiatric condition;
(c) as to Corey’s heart condition, as I have noted, the first plaintiff gave evidence that after heart surgery on his seventh day of his life she was told that he would be healthy apart from needing further heart surgery in his adolescence; and
(d) at that time there was no concern about brain damage or any behavioural issues – indeed, after undertaking an early MRI the first plaintiff was told that Corey did not have brain damage.
More broadly, the evidence to which the third, fifth and sixth defendants respectively point in the period shortly after Corey’s birth did not connect with any clear notion of legal liability against any identified defendant. It is one thing for the first plaintiff to have ‘wondered’ about what had occurred and be angry. However, in the present case it was a long journey from concerns of that kind to the identification by Professor Hyett of the key factors in the causes of action now sought to be advanced by the plaintiff against the third, fifth and sixth defendants.
In that regard, there is no escaping the fact that the causes of action on which the plaintiff presently relies could not have been brought without the initial prompting of the first plaintiff by Dr Blane-Brown in August 2016 (with her expertise in forensic matters) and thereafter the detailed expert consideration and advice of both Ms Shortall and Professor Hyett.
In those circumstances, I cannot accept that in those early times the plaintiff knew of the statutory ‘facts’ either that the personal injury could be considered to have been caused by the ‘fault’ of any particular defendant or that any such ‘fault’ was ‘sufficiently serious to justify the bringing of an action’. Like Spandideas and some of the other cases considered above, the underlying position was much too obscure, complicated and subtle, and in order to form the necessary state of mind the plaintiff required the assistance of expert opinion and did not form it until she obtained it.
The real point made by the third and sixth defendants, and perhaps also by the fifth defendant, was that the first plaintiff’s anger and state of wonderment should have propelled her to undertake investigations of the position via ‘her legal representative’. In that regard, the relevant defendants relied upon section 27F(2) which, as I have earlier noted, provides as follows –
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 that date to ascertain the fact.
As I have also noted –
(a) in Spandideas, Kaye J confirmed that the assessment as to whether the person ought to have known of one or more statutory facts will involve a consideration of the person’s knowledge, capacity and circumstances;[125]
(b) in Gillett, Beazley JA also confirmed that such an assessment will involve considering whether ‘all reasonable steps’ were not taken[126] and, if not, whether the statutory facts concerned would have been ascertained if identified ‘reasonable steps’ had been taken;[127] and
(c) again, the onus rests upon the relevant defendants.
[125]Spandideas (n 24) [65].
[126]As noted, in Baker-Morrison, Basten JA identified the assumption in s 50D(2) that the person had not taken ‘all reasonable steps’ to ascertain the statutory facts, which his Honour described as a ‘culpable omission’ – see, Baker-Morrison (n 31) [59].
[127]Gillett (n 41) [99]-[104].
In the present instance, the relevant circumstances seem to me to include at least the following –
(a) the plaintiff was engaged in little more than uninformed and occasional ‘wondering’ as to why Corey’s heart condition had not been ‘picked up’ in ultrasounds;
(b) in that regard, it is not evident that any doctor was then suggesting that anything culpable had occurred at the hand of any particular other doctor or, for that matter, in the conduct of any of the ultrasounds – in that sense, there was nothing then before the first plaintiff that tended to suggest that there could transpire to be anything of significance in her generalised concerns;
(c) the first plaintiff did not, in fact, have a ‘legal representative’ at that time – let alone one of the expert kind she ultimately found;
(d) the circumstances of the first plaintiff – including being stationed away from home in Melbourne and visiting the Royal Children’s Hospital daily – as well as having to care for Corey who was a ‘very sick baby’, realistically militated against obtaining any legal advice at that time;
(e) the only concern posited at that time – at least in respect of the present argument – related to Corey’s heart condition which, of course, the first plaintiff believed to have been addressed, to a significant extent, via the heart surgery undertaken on his seventh day of life;
In all of the circumstances, I accept that the first plaintiff has a reasonable explanation for her delay. In that regard, I am particularly mindful of the complexity of the circumstances relating to Corey and his unfolding medical conditions and the fact that until consulting Dr Blane-Brown in August 2016 it is not evident that any of the many doctors that the first plaintiff consulted after Corey’s birth seem to have suggested that the circumstances warranted her obtaining legal advice.
Notwithstanding the above, both presumed and actual prejudice were presented as bearing upon the present issue.
In that regard, the plaintiffs acknowledged that there must be presumed prejudice if an extension of time were to be granted in order to allow the first plaintiff to pursue her claims against any of the defendants. For that matter, albeit that a significant part of the argument advanced by counsel for the plaintiffs was directed to the merits relating to the conduct and reporting of the ultrasounds involved and the like, as well as the extent of the relevance of any such missing material to the allegations made,[143] I did not understand it to be said that there could not conceivably be some degree of actual prejudice suffered by the defendants.[144]
[143]See, in particular, T153-155 and T157.
[144]See, in particular, Outline of Plaintiffs’ Final Submissions [24]-[28].
In that connection, I have noted that –
(a) the fourth defendant relied upon the affidavits of Mr Bonacquisto, Ms Iaschi and the solicitor; and
(b) the fifth defendant relied upon his own affidavit as well as one made by his solicitor.
Dealing first with the evidence relied upon by the fourth defendant, Mr Bonacquisto deposed to the process by which, in 2007, a first trimester combined screen report would be produced.[145] In particular, the fourth defendant would receive ultrasound results by fax and sometimes would receive the information handwritten on a worksheet. In that regard, a review of a sample of files from 2014 revealed that in just under half of those files a typed ultrasound report had been provided and in just over half of those files the ultrasound results were provided in a handwritten form. Mr Bonacquisto believed those proportions to be broadly representative of the position over the years. Mr Bonacquisto deposed that a reporting scientist would enter the ultrasound results ‘into the system’ and the first trimester combined screen report would be generated and faxed to the referring doctor.[146]
[145]Exhibit D4-3: Affidavit of Leonard Bonacquisto affirmed 18 November 2020.
[146]Exhibit D4-3: Affidavit of Leonard Bonacquisto affirmed 18 November 2020 [9(i)-(k)].
In respect of the present instance, Mr Bonacquisto deposed that –
(a) the fourth defendant no longer has its file relating to the first plaintiff and the 1st trimester combined screen report;
(b) the 1st trimester combined screen report was issued by Ms Iaschi and she has no specific recollection of it; and
(c) he is now unable to say who faxed the ultrasound details to the fourth defendant, when those details were provided, what those details were and the form that they were in, who else might have seen those details and whether there was any relevant communication with the referring doctor or radiologist.
Mr Bonacquisto was required for cross-examination. I do not regard that as having materially altered the substance of the above evidence. That said, that in respect of a document referred to in argument as a ‘sonographer’s worksheet’ evidently obtained from another source,[147] Mr Bonacquisto said –
… I’ve rarely seek a worksheet like that before, in fact I’ve never seen one until I saw this particular one. It seems a very localised and specific one that they would use while they’re doing the scan.[148]
[147]Exhibit E: Affidavit of Anne Shortall affirmed 6 May 2022, exhibit, 11. The ‘sonographer’s worksheet’ seems to have been obtained from the records of the third defendant: see, Exhibit D4-2: Affidavit of Kai-Yan Lam affirmed 26 April 2021 [4]-[5]. See also, T156.
[148]T104.
Mr Bonacquisto went on to say that he did not think that the worksheet concerned was in a form ‘appropriate’ for the fourth defendant to accept. Indeed, he agreed that it was ‘unsatisfactory’.[149] I should, perhaps, add that the handwritten nuchal translucency measurement appearing in the copies of the ‘worksheet’ produced in evidence was somewhat indistinct and at the very least debateable.
[149]T105.
Mr Bonacquisto confirmed that if the worksheet concerned had been received by the fourth defendant he would expect that the scientist would ‘ask for the proper radiologist’s report’ and, if there was an error in that report, he would expect that there would be a ‘formal amended report’ directed to both the fourth defendant and the referring general practitioner.[150]
[150]Ibid.
Mr Bonacquisto otherwise confirmed that a typed radiologist’s report received by the fourth defendant would look like the one that in this instance has been produced from another source (and bears the nuchal translucency measurement of 11mm),[151] and that the fourth defendant would not receive the ultrasound images.[152]
[151]T105. Cf., Exhibit E: Affidavit of Anne Shortall affirmed 6 May 2022, exhibit, 8.
[152]T107-108.
The solicitor’s affidavit generally elaborated upon the enquiries made for documents as well as aspects of the evidence subsequently given orally by Mr Bonacquisto.[153]
[153]Exhibit D4-2: Affidavit of Kai-Yan Lam affirmed 26 April 2021.
For her part, Ms Iaschi’s affidavit confirmed that she did not have a recollection of conducting the test relating to the 1st trimester combined screen report (which bears her signature). She also said that she had not previously seen the ‘sonographer’s worksheet’ and that it was not typical of worksheets received by the fourth defendant.
In that connection, she deposed that, to her, the nuchal translucency measurement recorded in the ‘sonographer’s worksheet’ was ‘0.11mm, which was abnormally low’.[154] She deposed further as follows –
A nuchal translucency measurement of 11mm would also be significantly abnormal, and would likely have been of immediate interest and concern particularly where unexplained. In accordance with usual practice when the measurement is unclear or significantly abnormal, I believe I would have contacted the radiology clinic which conducted the nuchal translucency ultrasound to clarify the measurement was correct, and documented the clarification and any further information by hand on a ‘Corrective Action’ sheet, which is then attached to the test request paperwork.[155]
[154]Exhibit D4-1: Affidavit of Vivienne Iaschi affirmed 27 April 2021 [6].
[155]Exhibit D4-1: Affidavit of Vivienne Iaschi affirmed 27 April 2021 [7].
Ms Iaschi was not required for cross-examination; nor was the fifth defendant or either of the solicitor deponents for the fourth and fifth defendants.
In the latter connection, the fifth defendant deposed to having reported on the May ultrasound. He now has no recollection of the first plaintiff or of any observations made in the course of the ultrasound scan concerned. He goes so far as to say that he is not in a position adequately to respond to the plaintiffs’ allegations. He also deposes to none of the relevant ultrasounds now being in existence.[156]
[156]Exhibit D5-1: Affidavit of Dr Vincent Harold Thomas affirmed 30 October 2021.
For her part, the solicitor for the fifth defendant deposed to requests for the ultrasound imaging – which were unavailing – and otherwise sought to articulate the fifth defendant’s claims of specific prejudice.[157]
[157]Exhibit D5-2: Affidavit of Kerri-Beth Maree Thomas affirmed 30 October 2020.
In the circumstances to which I have referred, I have earlier identified the stance generally adopted by the plaintiffs.
For their part, the submissions of the third and sixth defendants emphasised presumed prejudice, which was said to have had ‘a profound effect’ their memories, but also claimed actual prejudice based in the loss of the images relating to the March ultrasound. That was said to be a ‘major impairment’ because ‘the fundamental reference point’ could not be tested and the third defendant, in particular, would be unable to ‘identify the reasons for what was in his report and for not engaging in further action’.[158]
[158]Submissions on Behalf of the Third and Sixth Defendants dated 13 May 2022 [46]-[48].
The fourth defendant emphasised the ‘extent of specific and presumptive prejudice’ based in the loss of its file relating to the first plaintiff and the unavailability of the images relating to the March ultrasound. In respect of the March ultrasound, the fourth defendant referred to what the submissions of the third and sixth defendants had described as the ‘fundamental reference point’. In respect of the file, the fourth defendant referred to the limitations arising from the absence of any documents concerning what had actually occurred in the production of the 1st trimester combined screen report, including whether any corrective action statements had been produced. It highlighted issues relating to the ‘provenance’ of the so-called ‘sonographer’s worksheet’ as well as whether the fourth defendant had received the March ultrasound report.[159] It was submitted that Professor Hyett’s assumptions could not be tested. The fourth defendant also emphasised that Ms Iaschi and Mr Bonacquisto could only give evidence of ‘usual practice’.[160] In the circumstances, the fourth defendant submitted that a fair trial was ‘inhibited’.[161]
[159]T132-133.
[160]Submissions of the Fourth Defendant as to the Plaintiffs’ Extension of Time Application dated 13 May 2022 [26(c)].
[161]Ibid [24]-[34].
Finally, the fifth defendant relied upon both presumed prejudice as well as specific prejudice based in the unavailability of the images relating to the May ultrasound. In the latter connection, he submitted that –
62.The absence of any scans means that the Fifth Defendant is not able to make any comment about what was identifiable on those scans or meet the allegation directly about what he should have done in relation to those scans.
63.By reason of the delay in the absence of these scans, then the Fifth Defendant is denied the opportunity for a fair trial because he is not able to properly analyse what could or could not be identified in those scans at the relevant times. Any expert engaged on behalf of the Fifth Defendant will also be similarly impeded in making any considered analysis of the allegations made by the [plaintiffs].[162]
[162]Fifth Defendant’s Submissions dated 13 May 2022 [62]-[63].
In reply, in connection with the March and May ultrasound reports, in particular, counsel for the plaintiff submitted that ‘it’s all about the documents and the lack of action to them’ rather than ‘what was actually in the ultrasound[s]’.[163]
[163]T155 and T157.
I accept that there must be both presumed and a degree of actual prejudice as a consequence of the unavailability of the imaging and the fourth defendant’s file. In that connection, I am very conscious of the statements made in the authorities to which I have earlier referred.
That said, the end point in the evaluation of prejudice of the kinds to which I have referred is a consideration of whether there is now a significant chance that there cannot be a fair trial of the first plaintiff’s allegations against any or all of the defendants. One way or another, the submissions of each of the defendants were heading in that general direction.
As has been observed more than once, the issue of fair trial is to be approached mindful of the fact that there is rarely an ‘ideal’ trial as opposed to one that is ‘acceptably fair’.[164]
[164]Davies v Nilsen [2015] VSC 584 [108], Sparkes v Hylemit Pty Ltd [2016] VSC 453 [90] and, in a slightly different context, Grant v Bird [2021] VSC 380 [35].
In that connection, it is appropriate to evaluate the extent of the limitations and risks of unfairness that may arise in the circumstances presented. There are, obviously, elements of estimation involved that must be influenced by a consideration of the many authorities in the area together with aspects of experience.
As I have noted, central to the plaintiffs’ claims is the March ultrasound report, 1st trimester combined screen report, May ultrasound report and what was described as the ‘sonographer’s worksheet’. All of those documents exist and at least three of them are highly relevant to the determination of the issues presented.
As each party essentially noted, three of the documents relevantly or arguably contain different values in respect of the nuchal translucency measurement. That presents potential difficulties for all parties – not just the defendants. However, the difficulties arise from the fact that there are differences in the values stated in the different documents; and those documents, and their differing values, must equally be assumed to have been available if, for example, the relevant underlying imaging and the fourth defendant’s file concerning the first plaintiff had also been available.
In that regard, experience tends to suggest that while the underlying imaging and contents of the fourth defendant’s file might well have had the potential to affect the precise orientation of the arguments arising from the differences to which I have referred, in a case such as the present material of that kind very often does not wholly settle the debate between the parties one way or the other. Most often, the complexion of the arguments changes slightly, but the overall dispute remains. That is because it remains inescapable that there are differences in the documents to which I have referred[165] as well as it being inescapable that the May ultrasound report did not identify the cardiac abnormalities that were identified in Corey immediately after his birth.
[165]Which was, as I have noted, ultimately the focus of the plaintiffs’ submissions: see, T155 and T157.
Nonetheless, the defendants emphasised what the third and sixth defendants described as the ‘fundamental reference point’ said to have been capable of being provided by the underlying imaging. In my view, that is to somewhat overstate the likely role played by any assessment of the imaging if it had been available. In that connection, it is very common for there to be significant differences in expert opinion concerning what is shown in such imaging. It follows that the availability of any of the underlying imaging would most likely have led to an additional area of dispute rather than to a resolution of the whole or even part of the existing one. I am also conscious that, on the evidence, the March ultrasound imaging would not have been received by the fourth defendant.
In respect of the May ultrasound, in particular, the fifth defendant emphasised the allegations of the plaintiffs directed to negligence in assessing that imaging. Those allegations were not emphasised by the plaintiffs in argument and it is not easy to see how they could ever be made out in the absence of the underlying imaging. On that score, the plaintiffs seem to be at considerably more risk than the fifth defendant as a consequence of the unavailability of the images. In argument, it appeared to be much more likely that the allegations to which I have referred, ultimately, will not be pressed or will be abandoned.[166]
[166]In argument, counsel for the plaintiff undertook to withdraw the particulars directed to that contention ‘if we need to have an extension of time’: see, T154.
As I have noted, however, the focus of the plaintiffs’ argument in respect of the fifth defendant was his alleged failure to undertake further investigation following the May ultrasound. That, of course, assumes that such a decision is for the radiologist, as well as that such a course would have made any difference.
Considerations of a similar kind arise in relation to the allegations against the third defendant. In that connection, the third defendant has, in fact, obtained a supportive expert opinion from Dr Michael W Jones, specialist radiologist. Among other opinions expressed by Dr Jones in his report, [167] it is said that –
[167]Exhibit D: Affidavit of Anne Shortall affirmed 21 April 2022, exhibit ‘AS-53’.
(a) the nuchal translucency measurement recorded by the third defendant was not ‘abnormal’;
(b) a radiologist would report ‘the actual measurement’;
(c) ‘radiologists do not make recommendations about whether or not further foetal examination is required’, as that is a ‘clinical role to be considered by the requesting practitioner’;
(d) no cardiac abnormality may have been present at the time of the March ultrasound;
(e) the ‘technical quality of ultrasound machines was limited in 2007’, particularly in cases of ‘high’ body mass index; and
(f) in his opinion, the third defendant ‘did act in a manner that was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice’ in March 2007.
Dr Jones noted that the March ultrasound was unavailable, but seems to have been able to express his opinions anyway.
It may well be that several of the points made by Dr Jones would be open to be made in respect of the fifth defendant and the May ultrasound.
For its part, as I have noted, the fourth defendant emphasises the unavailability of the imaging of the March ultrasound and its file relating to the first plaintiff. As I have indicated, there is a possibility that either would have settled all or part of the present arguments, although that less often occurs than is hoped and not uncommonly the availability of such further material can make the position of the defending party worse rather than better. Most often, as I have noted, the consequence in a case such as the present – where the differences in the documents that are available are so apparent and inescapable – is that the availability of further underlying material only causes further areas of dispute to open up.
In one respect, the absence of the file may be said to confer a potential advantage upon the fourth defendant: it seems that the fourth defendant would seek to resist or ‘test’ any suggestion that is or might come to be made that it received either the ‘sonographer’s worksheet’ or the March ultrasound report.[168] Of course, it may well not have received either document. But in adopting that stance the fourth defendant may, in fact, be assisted by the absence of the file.
[168]Submissions of the Fourth Defendant as to the Plaintiffs’ Extension of Time Application dated 13 May 2022 [31]-[32]. See also, T133.
In that connection, the fourth defendant also asserts that there will be difficulty in testing the assumptions made by Professor Hyett in advancing his expert opinions. It is, however, for the plaintiffs to establish all or a sufficient part of those assumptions in order for Professor Hyett’s opinion to persuade. In that sense, such difficulties as may be presented by the absence of the imaging and the fourth defendant’s file must at least also partly affect the fundamental capacity of the plaintiffs to establish their case.
In a context of the present kind, in which arguments such as those above (and other such kindred arguments) were advanced by the various defendants, it seems to me to be very significant that the witnesses concerned all seem to remain alive and available to be called. The effect of time upon memory is not to be discounted, however each of the witnesses presently under consideration – the third defendant, fifth defendant, sixth defendant, Mr Bonacquisto and Ms Iaschi – are not of a kind that would commonly have a distinct memory of one among countless such imaging sessions, consultations, considerations or reports that they have been involved in, as the case may be.
In that context, of course, I accept that the absence of the fourth defendant’s file and the imaging concerned has the potential to give rise to a degree of actual prejudice, as those witnesses will not be able to speak to those missing documents and their significance. However, those witnesses are each apparently available and they can be expected to speak to the processes involved and to explain what they would understand to be the meaning and significance of the documents that are available and what they must have considered and done in order for the documents to be in the form in which they are shown to appear.
In a sense, an indication of exactly that kind of capability is evident in the affidavit of Ms Iaschi, to which I have earlier referred. She there speaks of knowing and understanding the significance of a nuchal translucency measurement of either 11mm or 0.11mm – appearing respectively in the March ultrasound report and arguably in the ‘sonographer’s worksheet’ – and to what she would have expected to have unfolded in either event. Although that might be said to be evidence of ‘usual practice’, it is not without power or significance.
Further, evidence of that kind would be expected to link, ultimately, to evidence of the witness concerning the significance of her confirming by signature, in the 1st trimester combined screen report, a nuchal translucency measurement value of 1.1mm.
More broadly, of course, both Mr Bonacquisto and Ms Iaschi spoke to the processes and documents involved. In the case of each of them it is hardly unreasonable to anticipate that in circumstances in which the 1st trimester combined screen report must have been prepared by one person and to some extent checked by another it may still be said with some force that the fact that it records a nuchal translucency measurement of 1.1mm suggests that whatever underlying material the fourth defendant had at that time likely supported that figure.
The prospect of evidence of that general kind at any trial seems to me to be underlined by parts of the expert report of Dr Jones, to which I have also earlier referred. The substance of part of Dr Jones’ opinion seems to be that there was no failure by the third defendant in reporting the nuchal translucency measurement because he simply reported the actual measurement before him which he then recorded in the March ultrasound report.
In that connection, I have noted that the third defendant filed no evidence directed to the present issue, however it is not a stretch to contemplate that he could also give evidence of that general kind. Such evidence could be given albeit that the underlying imaging is unavailable and the third defendant has no subsisting memory of the observations of the imaging that caused him to prepare the March ultrasound report. Like Dr Jones, he may well simply be able to say that he must have measured a nuchal translucency value of 11mm because it appears in his report and it was not his role, thereafter, to determine the clinical consequences of his report.
The fifth defendant did make an affidavit, but the content of that evidence would not seem to me to prevent him from giving evidence of a kind similar to that identified above either. Looking at the May ultrasound report he may well be able to say that it records what he must have seen. He may well be able to say that for various reasons, including as a consequence of language that he has used in his report.
As to the sixth defendant, she filed no evidence; however, she may equally be expected to explain her position by reference to her own clinical file. It would not be usual for her to have received the imaging involved (as opposed to the reports) and there is no suggestion that she ever had access to the fourth defendant’s file.
In the circumstances, it is impossible to be exact about the degrees of presumed and actual prejudice that may arise as a consequence of the delays, erosion of memories and the unavailability of the documents to which I have referred. It will be evident that I accept that there must be both presumed prejudice and some degree of actual prejudice. The extent of any such prejudice could vary depending upon how the argument at trial unfolds, and I acknowledge that it may not affect each defendant equally.
On the other hand, it does not seem to me to be a case in which the presumed and actual prejudice could be such that there is a significant prospect that any of the defendants will be unable to fairly defend themselves.
In particular, I do not accept the submission of the fourth defendant that either the fourth defendant or the defendants more generally would face a trial that is speculative in nature. It is of real significance that critical documents remain available and that the witnesses involved are evidently all still able to be called and to speak to both those documents, where relevant, as well as the respective underlying processes and likelihoods concerned. None of that, seems to me to have any dangerously speculative quality about it.
Indeed, the truth is that it is very common for common law trials to unfold in circumstances of exactly that kind and it is not regularly considered that such a trial is at any real risk of being considered to be unfair. That is so even in cases involving some delay.
One must, of course, be very careful with a proposition of that kind. It is one thing to talk about what usually happens in the course of proceedings brought within time and quite another to consider the same point in respect of proceedings brought out of time. The real substance of the point, perhaps, is that it is important neither to underestimate nor overestimate the potential degrees of actual prejudice that can accrue in circumstances such as the present.
In the circumstances, I do not overlook the delays involved, the potential significance of the unavailable imaging and file of the fourth defendant, the aspects of unavailable memory to which the witnesses have deposed and the critical fact that the limitation periods involved must be taken to be expired. However, taking all of that into account, I do not regard the present case as being one in which there is a significant risk that a fair trial cannot be had.
As to the time within which the causes of action were discoverable, I have considered the issue of discoverability at length above, at least in respect of the first plaintiff. To the extent that the first plaintiff referred to the second plaintiff in her evidence, I do not consider his position in respect of the issue of discoverability to be likely to have been significantly different to hers. It follows that the plaintiffs’ claims against the third, fifth and sixth defendants only became discoverable in or shortly after August 2018.
On the other hand, of course, I have already noted that the second plaintiff was joined to the proceeding after the long stop period and that the plaintiffs acknowledged that the cause of action against the fourth defendant was ‘discoverable’ prior to the expiry of the limitations period.
In this context, even if it be assumed, that the claims were discoverable at an earlier time – such as, after receipt of the advice from Professor Tonge in September 2011 – I do not consider that fundamentally to alter of the interests of justice involved in respect of the first plaintiff, at least.
In that connection, for reasons which I have already given, such discoverability could not be based upon any sense of the first plaintiff then having ‘known’ the statutory facts rather than that the first plaintiff should at some later point have known those facts as a consequence of legal and other enquiries that she put in train in or after late 2011. Consideration of hypotheticals of that kind do not seem to me significantly to alter my earlier general acceptance of the reasonableness of the first plaintiff’s overall approach, account and explanation of her circumstances.
The remaining considerations specifically identified in section 27L – to the extent that they are pertinent – seem to me to be wrapped up within my earlier discussion of the circumstances concerned.
In the end, the issue becomes a consideration of whether the first plaintiff has discharged her onus of persuading that it is ‘just and reasonable’ that the extensions sought be granted.
In that, the delay is inordinate, presumed and a degree of actual prejudice must be acknowledged (albeit that the likely extent may in each case be debated) and the effect of an extension upon the defendants is a very significant factor.
On the other hand, the first plaintiff’s loss is likely very likely significant, she has explained her delay in a full, forthcoming and reasonable way and, by my assessment, there may still be a fair trial in which all relevant witnesses seem to be available to be called and in respect of which central and significant documents seem to remain available to be considered and explained.
Within the necessary synthesis, it seems to me that the latter two considerations – reasonableness of explanation and the likely availability of a fair trial – must be of very real importance and weight.
The present question ultimately involves both elements of impression – often informed by experience – and a synthesis of incommensurables. It is also, ultimately, a question of persuasion. None of that can readily be articulated or reasoned much beyond what I have already said concerning the overall circumstances and the relevant factors involved.
In the circumstances, even if what I have concluded about discoverability should be wrong, I consider the interests of justice to favour the first plaintiff and I am persuaded that it is just and reasonable that she be granted extensions of time in order to allow her to pursue her claims against the third, fifth and sixth defendants.
For largely the same reasons, I also consider it to be just and reasonable that the first plaintiff be granted an extension of time to allow her to pursue her claims against the fourth defendant.
D Extension of time - the second plaintiff
The second plaintiff has not sworn any affidavit in support of his application for an extension of time. As I have noted, the issue of discoverability does not arise against him directly.
The submissions advanced on behalf of the plaintiffs sought to persuade the Court that an extension should be granted to the second plaintiff, in effect, as a matter of completeness.[169] In that connection, it was submitted in writing as follows –
With respect to the application on behalf of the Second Plaintiff we submit that the overriding requirement, that the Court “have regard to all the circumstances of the case” is particularly relevant here. If we assume that the First Plaintiff is entitled to maintain her action against some or all defendants, then although the Second Plaintiff was not joined to the action until after the limitation period had expired as against all Defendants, the addition of the Second Plaintiff has created no prejudice to any Defendant save for, perhaps, some exposure to a slightly greater award of damages. Without undertaking an examination of the entitlement to damages, it is likely that the entitlement to damages for the First and Second Plaintiffs will be at least very substantially co-extensive. It is submitted that this factor effectively overrides all other considerations when considering “all the circumstances of the case”.[170]
[169]See, T120: senior counsel referred to the extension of time in respect of the second plaintiff as ‘probably belt and braces’.
[170]Outline of Plaintiffs’ Final Submissions [35].
It may be noted that the above submission says nothing about the onus resting upon an applicant in the position of the second plaintiff. Indeed, part of the above passage might be thought to be at risk of inviting a reversal of at least part of that onus. It may also be said that the point made concerning the ‘entitlement to damages’ cuts both ways.
In various respects it seemed to be suggested that the reasons for the delays of the first plaintiff should be imputed to the second plaintiff and that the second plaintiff’s position concerning ‘discoverability’ and the defendants’ prejudice should be considered to be no different to that considered in respect of the first plaintiff.
The latter points may be accepted. In particular, I would accept that the second defendant’s position in respect of ‘discoverability’ is likely to be the same as that concerning the first plaintiff. In that regard, the evidence tended to suggest that it is likely that the causes of action were no more discoverable for the first plaintiff than they were likely to have been for the second plaintiff. In part, that conclusion is informed by the complicated circumstances to which I have earlier referred; as well as the need for the expert prompting of the first plaintiff by Dr Blane-Brown and the later receipt of expert advice from Ms Shortall and Professor Hyett before the causes of action could be considered to be discoverable.
It does not, however, follow that I should readily impute all aspects of the first plaintiff’s explanation and reasons for delay to the second plaintiff. In saying that I am conscious that their positions are likely to have been similar. However, the power in the first plaintiff’s explanation was that in both writing and orally it came out of her own mouth and amply withstood cross-examination. In that way, the effect of those circumstances upon her – and the essential reasonableness of her overall explanation – were evident both in what she said and the way in which she said it.
None of that is available in respect of the second plaintiff and, in a sense, counsel for the plaintiffs would invite the Court to piece together an explanation from the first plaintiff’s evidence that really should have emerged in a coherent way from the mouth of the second plaintiff and in a form that would have allowed it to be tested by cross-examination, if thought appropriate.
That leads back to the onus resting upon the second plaintiff to demonstrate that an extension of time is ‘just and reasonable’ in respect of the claims which he seeks to bring.
In that regard, the onus upon an applicant for extension of time, particularly in respect of the reasons for delay, is specifically identified in sections 27K and 27L, as well as long recognised in the authorities. In that connection, in Itek Graphix Pty Ltd v Elliott, Ipp A-JA (with whom Spigelman CJ and Sheller JA agreed) stated, relevantly –
89.The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts. It is hardly necessary to provide authority for this proposition. …
90.The reason for this requirement is not hard to understand. A limitation period is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exists entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. …[171]
[171](2002) 54 NSWLR 207 [89]-[90]. See also per Sheller JA, [4] and Arisoy v Yoogalu Pty Ltd [2012] VSC 631 [26]-[29].
I am not satisfied that it has been shown that it is just and reasonable that the second plaintiff should obtain an extension of time, in effect, because it has otherwise been shown to be just and reasonable that the first plaintiff should have one. There is no direct explanation by the second plaintiff of his reasons for delay. In circumstances in which the delays involved are inordinate and there is both presumed prejudice and the potential for elements of actual prejudice, I am not satisfied that it is just and reasonable that time be extended, albeit that I have otherwise accepted that it is a case in which it is likely that there can be a fair trial.
For those reasons, I would refuse second plaintiff’s application for an extension of time.
E Conclusions
I have concluded that the causes of action relied upon by the plaintiff against the third, fifth and sixth defendants were first discoverable by her when she was advised about the expert opinion of Professor Hyett in or shortly after August 2018. In the circumstances, the claims made by her against the third, fifth and sixth defendants were all brought within time.
If I am wrong in that conclusion, I would nonetheless grant to the first plaintiff an extension of time in order to pursue those claims; as well as in respect of the claims made against the fourth defendant.
I am not satisfied that it is just and reasonable to extend time to allow the second plaintiff to pursue the claims which he would seek to advance.
I will allow respective counsel to consider these reasons and propose orders.
SCHEDULE OF PARTIES
S ECI 2018 01557 BETWEEN:
BELINDA MOORE
First Plaintiff - and
DARREN MOORE
Second Plaintiff - and –
ALBURY WODONGA HEALTHFirst Defendant- and –
REGIONAL IMAGING PTY LTDSecond Defendant- and –
DR RICHARD ESCOTT
Third Defendant -and-
VICTORIAN CLINICAL GENETIC SERVICES LIMITED
Fourth Defendant -and-
DR VINCENT HAROLD THOMAS
Fifth Defendant -and-
DR RUTH MITCHELL
Sixth Defendant
3
16
0