Reznitsky v Rothonis

[2021] NSWSC 281

Supreme Court

New South Wales

Medium Neutral Citation:

Reznitsky v Rothonis [2021] NSWSC 281

Hearing dates:

12 October 2020

Date of orders:

24 March 2021

Decision date:

24 March 2021

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The plaintiff’s amended summons dated 5 February 2020 and the proceedings are dismissed.

(2) The plaintiff is to pay the defendants’ costs of the proceedings on an ordinary basis.

Catchwords:

LIMITATION OF ACTIONS – Application for extension of time under Limitation Act 1969 (NSW) s 60C – Factors considered under s 60E – Whether plaintiff is under a disability under s 52 – Where the plaintiff has provided no evidence to substantiate his claim – Application dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 5O

Limitation Act 1969 (NSW) ss 11, 52, 60C, 60E

Uniform Civil Procedure Rules 2005 (NSW), rr 13.6, 36.16

Cases Cited:

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541

Guthrie v Spence [2009] NSWCA; (2009) 78 NSWLR 225

Kotulski v Attard [1981] 1 NSWLR 115

New South Wales v Harlum [2007] NSWCA 120

Olive v Johnstone [2006] NSWCA 21

Saunders v Jackson [2009] NSWCA 192

South Western Sydney Local Health District v Gould [2018] NSWCA 69

State of New South Wales v Bennie [2005] NSWCA 172

Sydney City Council vZegarac (1998) 43 NSWLR 195

Category:

Principal judgment

Parties:

Boris Reznitsky (Plaintiff
Theodore Rothonis (First Defendant)
Alexander Aristoff (Second Defendant)
Andrew Small (Third Defendant)
Harold Kwiatek (Fourth Defendant)

Representation:

Counsel:
T Hackett (Defendants)

Solicitors:
Self Represented (Plaintiff)
Avant Law (Defendants)

File Number(s):

2019/305248

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is an application to extend the limitation period in relation to a personal injury claim.

2. At the time of the hearing of these proceedings on 12 October 2020, there were numerous applications before the Court. The plaintiff had filed an amended summons dated 5 February 2020 seeking to extend the limitation period, as well as a notice of motion filed 1 June 2020 seeking summary judgment and a review of two Registrars’ decisions. The defendant had filed a notice of motion dated 26 August 2020 seeking that the amended summons be dismissed.

3. The plaintiff is Boris Reznitsky. The first defendant is Theodore Rothonis and the second defendant is Alexander Aristoff. The third defendant is Andrew Small and the fourth defendant is Harold Kwiatek. All four defendants are medical general practitioners (GPs) who practice at Waterloo Medical Centre. The plaintiff relied upon his affidavits dated 30 September 2019, 28 May 2020, 5 February 2020 and 22 November 2020. He also provided written submissions. The defendants have elected not to rely upon affidavit evidence.

4. On 2 December 2020, after the hearing of these proceedings, various notices of motion, including the plaintiff’s notice of motion filed 1 June 2020 seeking summary judgment and a review of two Registrars’ decisions, were listed before the Registrar at 10.00 am. The plaintiff appeared by audio-visual link at 10.36 am. By that time, the Registrar had already dismissed those notices of motion and the proceedings pursuant to r 13.6(2) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

5. Rule 13.6(3) of the UCPR states that r 13 does not restrict any other power of the court to dismiss proceedings. For the reasons which follow, I have decided that the plaintiff’s amended summons dated 5 February 2020 should be dismissed. It follows that the proceedings should be dismissed. Hence, it is unnecessary to determine the other matters raised in both parties’ notices of motion.

6. I shall now set out my reasons for dismissing the plaintiff’s application for an extension of the limitation period.

Procedural background

7. On 1 September 2020, this matter first came before me for hearing. The hearing proceeded by audio-visual link due to COVID-19 restrictions. The plaintiff was self-represented. As he was having difficulties appearing on camera, he requested an adjournment in order for him to resolve the issue. The plaintiff’s request for an adjournment was somewhat surprising, given that he deposed that he is a skilled and qualified Information Technology professional. He has a Masters degree in Information Technology and had a substantial employment history in Australia by the year 2002, working as an IT Systems/Infrastructure Engineer on the contract basis (Aff, 30/9/2019 at [2]), an industry he continues to work in from time to time. Notwithstanding, I granted him an adjournment to 12 October 2020.

8. On 12 October 2020, the plaintiff maintained that the defendants’ submissions in reply dated 31 August 2020 had been sent to him in an unreadable form. My Associate emailed him a copy of the defendants’ submissions in pdf form at 10.20 am on the morning of the hearing. As the plaintiff did not have time to deal with those submissions, and with the consent of the defendants’ counsel, I decided that it would be more expeditious that I deal with the matter on the papers. In order to afford the plaintiff procedural fairness, I ordered the filing of the plaintiff’s further submissions. Those orders were that the plaintiff was to file and serve any further submissions in reply to the defendants’ submissions filed 25 August 2020, and submissions in reply filed 1 September 2020, by 4.00 pm on or before 26 November 2020. The plaintiff filed a further affidavit dated 22 November 2020 together with an updated index.

The plaintiff’s amended summons

9. By amended summons dated 4 February 2020, the plaintiff seeks the following orders:

“1. Court order or decision in terms of granting additional 5 years (maximum) extension to original 3 year time limitation period that had never came into effect, in relation to the Applicant’s injuries occurred in Sydney on 23 February 2020.

2. Any other decisions or orders, that the court deems fit.

3. Costs order against the Respondents OR alternatively, order to wave [sic] the Applicant’s fees or special order of costs as the matter of public interest.”

10. While the plaintiff refers to ss 50A to F of the Limitation Act 1969 (NSW), most of those sections are not applicable. He nominates “Category 2”, and says the injuries which are the subject of his claim were sustained on 23 February 2002 in an event he refers to as “the incident”, a reference I have adopted throughout this judgment. The plaintiff has not provided the Court with any details of the incident, nor how it is said to have given rise to the injuries in respect of which he brings his claim.

11. He alleges that the four named defendants treated him from the period of 6 December 2002 to 2016. The details of the defendant GPs and the periods in which the plaintiff says he was treated by each of them are as follows:

1. Dr Theodore Rothonis from 2006 to 2011;

2. Dr Alexander Aristoff from 2002 to 2004, 2010 (referred to as the “primary doctor”);

3. Dr Andrew Small from 2012 to 2015; and

4. Dr Harold Kwiatek from 2015 to 2016.

12. As previously stated, these four GPs practiced within the same medical practice at Waterloo.

The plaintiff’s disability

13. Before I deal with the plaintiff’s application for an extension of time, it is necessary to first consider the plaintiff’s claim that he suffered a disability such that the running of the limitation period should be suspended.

14. Both ss 11 and 52 of the Limitation Act are applicable here. They relevantly read:

11 Definitions

…

(3) For the purposes of this Act a person is under a disability:

…

(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:

(i) any disease or any impairment of his or her physical or mental condition,

…

52 Disability

(1) Subject to subsections (2) and (3) and subject to section 53, where:

(a) a person has a cause of action,

(b) the limitation period fixed by this Act for the cause of action has commenced to run, and

(c) the person is under a disability,

in that case:

(d) the running of the limitation period is suspended for the duration of the disability, and

(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:

(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or

…

…, the limitation period is extended so as to expire three years after the earlier of those dates.

(2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period.

…

15. The starting point to making a determination under s 11(3)(b) of the Limitation Act is set out in Kotulski v Attard [1981] 1 NSWLR 115 (“Kotulski”), where Slattery J stated at [117] to [118]:

“Section 11(3)(b) is concerned with two classes of person:

‘One who is incapable’ (which conveys the concept of total inability) and the other ‘substantially impeded in the management of his affairs in relation to the cause of action … by reason of disease or impairment or physical or mental condition.’

According to the Shorter Oxford Dictionary to ‘impede’ means to obstruct in progress or action; to hinder or to stand in the way of. ‘Substantially’, in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. ‘Mental condition’ which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings.

It seems to me that the expression ‘mental condition’ is meant to cover the mind’s activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. When dealing with the words ‘unsound mind’, which were not defined in the relevant statute, Lord Denning MR in Kirby v Leather [1965] 2 QB 367, at p 383 said:

‘So here it seems to me in this statute a person is ‘of unsound mind’ when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do.’

I am of opinion that…to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action…”

16. The New South Wales Court of Appeal has approved the principle stated by Slattery J in Kotulski in a number of cases: see State of New South Wales v Bennie [2005] NSWCA 172; New South Wales v Harlum [2007] NSWCA 120; Saunders v Jackson [2009] NSWCA 192; Olive v Johnstone [2006] NSWCA 21 and Guthrie v Spence [2009] NSWCA; (2009) 78 NSWLR 225 at [144].

The plaintiff’s submissions

17. The plaintiff provides an explanation for his disability in his affidavit dated 22 November 2020. In summary, he alleges that within days after the incident that occurred on 23 February 2002, he attended the primary doctor’s surgery. The plaintiff says that he complained about severe pain in his lower back and restricted movement due to the incident. He was sent by the primary doctor for radiography testing, which he says did not reveal any abnormalities.

18. He says that his injuries were not rectified between February and July 2002, even though he made complaints during those months. The plaintiff was incapable of engaging in physical activities for a long period of time, and experienced severe headaches, pain and mental issues.

19. The gravamen of the plaintiff’s complaint is that if he had been diagnosed by the primary doctor as having sustained spinal injuries and cognitive disabilities back in February to July 2002 and thereafter, he should have been referred to the Job Capacity Assessment/Disability Assessment Scheme.

20. More concretely, the plaintiff says that he did apply for the Government Disability Scheme on 1 November 2016. His application was approved and a year later, he was granted Work Disability status. It is his evidence that this status was formally reviewed in 2020. However, he says it is apparent that had he had his spinal injuries and disorders diagnosed and rectified in 2002, he would have made his application under the Disability Assessment Scheme 17 years earlier. He says that if that had occurred, it is likely that back in 2002 he would have been granted the status of a person under a disability due to his spinal injuries and/or cognitive disabilities in around 2004 or 2005.

The defendants’ submissions

21. The defendants firstly noted that in describing his disability, the plaintiff seems to refer to spinal injuries, rather than a cognitive condition, and does not provide evidence of either. They emphasized that there is no objective evidence, including expert evidence, of any alleged “disability” within the terms specified in s 11(3) of the Limitation Act.

Resolution

22. Firstly, and most importantly, the plaintiff has not provided any medical evidence in support of his claim.

23. The plaintiff refers to the primary doctor who treated him between 2002 and 2004. The plaintiff says that shortly after 23 February 2002, he complained to the primary doctor about severe pain in his low back area and limited range of movement arising from the incident. He has never explained how the injuries in the incident occurred so as to be able to ascertain what treatment should have been undertaken. He says that he was sent by the primary doctor for radiography testing but admitted that those radiology examinations (X-rays and MRIs) “came back negative”. However, he fails to explain on what basis, if the tests came back negative, the primary doctor should have should have carried out further tests and what those tests should have been. Only an expert medical specialist can provide this information, but none has been provided.

24. While the plaintiff says is that he is incapable or substantially impeded in the management of his affairs by reason of disease or mental impairment or physical or mental condition, there is no medical evidence to show that is in fact the case. Nor has the plaintiff provided there any evidence to show that he was at any time incapable of managing his affairs. The Job Capacity Assessment Report dated 20 December 2016, which he says evinces his disability status from that date, is not in evidence. His submission that he should have been considered a person under a disability from 2004-2005 cannot be accepted.

25. In these circumstances, it is my view that the plaintiff has not established, on the balance of probabilities, that he is under a disability. Hence, there are no grounds to suspend the running of the limitation period. The plaintiff’s application under s 52 of the Limitation Act fails.

Sections 60C and 60E of the Limitation Act

26. Next, the plaintiff has relied upon ss 60C and 60E of the Limitation Act (the secondary limitation period). They read:

“60C Ordinary action (including surviving action)

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines.

…

60E Matters to be considered by court

(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay,

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c) the time at which the injury became known to the plaintiff,

(d) the time at which the nature and extent of the injury became known to the plaintiff,

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission,

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(h) the extent of the plaintiff’s injury or loss.

…”

27. The most convenient way to set out the plaintiff’s case at its highest in relation to ss 60C and 60E of the Limitation Act is by reference to his submissions and his affidavits dated 30 September 2019 and 22 November 2020. The plaintiff’s evidence and submissions are repetitive. As best as I can, I will summarise the plaintiff’s evidence and submissions in relation to the matters to be considered by the Court under s 60E and then deal with s 60C of the Limitation Act.

28. On the plaintiff’s own evidence, the incident occurred on 23 February 2002 and within days, he attended his primary GP. He complained of having suffered spinal injuries and cognitive disabilities. So far as I can discern, he has not articulated any specific complaints against the first, third and fourth defendants. As previously stated, as I have made a finding that the plaintiff has not suffered a disability pursuant to s 52 of the Limitation Act, the limitation period has not been suspended.

29. As the plaintiff seeks to rely upon ss 60C and 60E of the Limitation Act, the limitation period commenced running from a few days after the incident at the latest. As such, the limitation period expired three years after 28 February 2002, namely 28 February 2005. Pursuant s 60C(2), the limitation period can be extended for a further five years, that is from 28 February 2005 to 28 February 2010. On 5 February 2020, the plaintiff filed his original summons, which is about 10 years outside the limitation period prescribed in ss 60C and E of the Limitation Act. Even by invoking ss 60C and E, the plaintiff is statute barred and his application to extend the limitation period fails and should be dismissed.

30. However, if I am wrong, I will briefly address ss 60C and E of the Limitation Act. Section 60E refers to specific matters. I shall deal with both parties’ submissions and my response in order.

(a) The length and reasons for the delay

The plaintiff’s submissions

31. The plaintiff submitted that the length of delay in bringing proceedings is about 15-18 years. His explanation is that the reason for the delay was the defendants’ “multipl[e] and repetitive failures last[ing] for years” to diagnose his injuries. He submitted that all he is required to demonstrate is that during the period in question, being 2002-2016, he saw doctors and complained about his health and underwent numerous medical tests, including MRIs, CT scans, and various consultations with specialists.

The defendants’ submissions

32. The defendants agree that the length of delay is 15-18 years. However, they submitted that the plaintiff’s explanation for delay is not a rational one. This is because there is no medical reports, MRIs or CT scans in evidence. Moreover, on the plaintiff’s own evidence, the results of the MRIs and CT scans were negative.

Resolution

33. The delay is indeed a long one. The plaintiff is seeking an extension of time of about 15 years from the time at which the limitation period ordinarily would have expired. The plaintiff needs to demonstrate more than “all that is required during the period 2002-2016, he saw doctors and complained about his health and underwent numerous medical tests, including MRIs, CT scans, and various consultations with specialists”. From his own evidence, the plaintiff says that the MRI and CT scans taken shortly after the incident did not indicate any of the injuries of which he complains.

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available

The plaintiff’s submissions

34. The plaintiff says that is “contradict[ory] to the law” to raise issues about the prejudice to the defendant, who he says caused his injuries. On the contrary, he says that the defendants have been advantaged by the delay in the plaintiff seeking justice, while he was kept in the dark about his injuries by doctors. The plaintiff said there are “official medical records and statements about the incident on 23 February 2002 that just needed to be assessed”. He submitted that it is unlawful to raise the issue about prejudicing the defendants in circumstances where he is alleging that they breached their own professional rules and failed to provide him adequate health services and the “necessities of life”. He says that the defendants are further advantaged by the delay because they damaged and destroyed the majority of medical records in relation to his case, despite the state and professional requirements to keep his records for 30 years.

The defendants’ submissions

35. The defendants submitted that medical records and statements relating to the incident would likely be irrelevant to the plaintiff’s case. They also disputed that the defendants “damaged and destroyed or attempted to do so, the majority of their medical records” as the plaintiff alleges.

Resolution

36. As previously stated, the delay in commencing proceedings is about 15-18 years. It is unclear why the plaintiff asserts that the defendants should have kept medical records for 30 years. There is no requirement that they have to do so. I agree with the defendants that there is no evidence that the doctors have damaged or destroyed the majority of health records. Rather, the defendants suffer presumptive prejudice in defending a cause of action so many years after the alleged conduct took place.

(c) the time at which the injury became known to the plaintiff; (d) the time at which the nature and extent of the injury became known to the plaintiff; and (e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission

The plaintiff’s submissions

37. In his affidavit evidence, the plaintiff deposed that he had undergone additional medical examinations in 2016 which revealed that he had longstanding lower spine pathologies, including fractured/crushed bones in his lower thoracic and lumbar spine and anterior bulging. He also had some associated changes in his lower spine area, such as irregular crushed vertebrae, loss of vertebral bone, grown bridging osteophytes and disc desiccation. The plaintiff stated that the material facts of his spinal injuries inflicted during the incident in February 2002 could have been diagnosed shortly after the incident but were not.

38. The plaintiff says that on 20 December 2016, a Job Capacity Assessment Report concluded that he was unable to lead a productive life and his work capacity had been reduced due to the impact of his spinal disorders including chronic back pain and reduced physical capacity. That report also stated that the plaintiff’s spinal conditions incurred a permanent impairment rating precluding him from performing his usual work activities as an IT Systems/Infrastructure Engineer.

39. The plaintiff says he only became aware of the Job Capacity Assessment Report in mid-2018. He says that to date, he has had no opportunity to have the matter legally assessed, or to commence his action and file a claim for damages due to “the time limit restrictions in relation to his 17-year-old injuries as the general rule, which in [his] view is not correct”.

40. Finally, the plaintiff submitted that the medical findings should have been revealed and presented to him in February-July 2002. As he understands, at that time he should have been instructed to spend many months in the hospital under medical supervision and bedbound. Had the proper diagnosis and treatment occurred in 2002 he would have had the matter legally assessed and commenced the action and filed his claim for damages at the time.

The defendants’ submissions

41. The defendants noted that in his submissions, the plaintiff refers to “the date a cause of action is discoverable” with reference to the injuries he says occurred in the incident on 23 February 2002. The defendants submitted that there is no expert evidence that supports a submission that “the injuries”, however characterised, were caused by the defendants.

42. The defendants further submitted that while the plaintiff elsewhere states that “the nature or extent of the injuries became known to him in August-September 2018”, this is inconsistent with his submissions and affidavits with regard to his earlier knowledge of “the nature or extent of the injuries”. The plaintiff says that he took reasonable steps to obtain legal assistance before filing the application, but there is no adequate or reasonable explanation or evidence as to reasonable steps.

43. There is also no objective evidence, including expert evidence, to support the plaintiff’s submissions that he was “supposed to spend many months in the hospital under medical supervision being bed bound, back in year 2002.” Nor is there evidence to support his claim that “if [he] had the spinal injuries/disorders rectified and diagnosed back in year 2002, [he] would apply for Disability Assessment Scheme about 17 years earlier - back in 2002, without being suffering for years and without putting [his] life at risk”.

44. The defendants submitted para [5] the of plaintiff’s submissions in fact support his awareness and knowledge of the nature and extent of his back injury or spinal condition. They state that:

1. “[o]ver the years [he] experienced severe pain in back… as well as the restrictions of movements, due to the injuries sustained during the incident”;

2. “[t]hose medical conditions effected (sic) [his] life, [his] wellbeing and [his] work capabilities”; and

3. “[f]rom the time of the incident [he] had spent substantial time off the work. [He] was forced to resign the number of times, because of inability to do the work and having ongoing back pain”.

45. The plaintiff’s submissions as to complaints and negative radiology test results further support his awareness and knowledge of the nature and extent of his back injury or spinal condition.

46. The defendants submitted that the Court would not be satisfied that the plaintiff had sustained the “questionable spinal injuries”, as he says he was sent for radiology examinations “with the same negative results”. They say the Court would find that the plaintiff making “numerous complaints about the state of [his] health, related to the questionable spinal injuries” is inconsistent with him being “unaware about having sustained those spinal injuries”.

47. According to the defendants, it appears the plaintiff was in fact aware of a spinal injury condition as he made “numerous complaints about the state of [his] health, related to the questionable spinal injuries” and “was sent for radiology examinations (X-rays, MRIs) with the same negative results.” It follows that the plaintiff was aware of his condition and test results.

48. The defendants submitted that in the circumstances, the plaintiff’s submission that “[d]uring that time the doctors failed to provide the patient, with adequate, clear and relevant medical information in relation to the spinal injuries and also extent of those injuries that badly affected his health, life and wellbeing” cannot be maintained. The plaintiff’s evidence about when the injury became known to him, and his cause of action more broadly, are manifestly unclear and not adequately defined.

Resolution

49. On the plaintiff’s own evidence, he was aware that he suffered spinal injuries in 2002 and had complained about his condition for many years. He claims that it was only in 2016, when he had to undergo additional medical examinations, that he became aware he had the long-standing lower spine pathologies. He says he then applied under the Disability Assessment Scheme and only became aware of the job capacity assessment report in mid-2018.

50. However, the plaintiff was aware that over the years he had experienced severe pain in his back, as well as restricted movements due to the injuries sustained during the incident. It is his own evidence that those medical conditions affected his life, wellbeing and work capabilities, and that from the time of the incident he spent substantial time off the work. He was even forced to resign a number of times because of the inability to work through his ongoing back pain.

51. As previously stated, a copy of the Job Capacity Assessment report is not in evidence. Without any medical evidence of treating doctors, specialists and scans taken in earlier years, it cannot be ascertained whether the condition he finds himself in in 2018 and for which he was treated in February 2002 onwards was the cause of his spinal deterioration over the last 15 years. Without this evidentiary basis, the plaintiff is only able to provide his opinion as to when he became aware of the extent of his injuries. I note that more fundamentally, without any medical expert advice on liability, it is unclear as to whether there is any connection between the plaintiff’s injury and the defendants’ alleged omissions.

(f) any conduct of the defendants which induced the plaintiff to delay bringing the action

The plaintiff’s submissions

52. The plaintiff’s broad complaint is that the failure of the doctors to diagnose and provide him with adequate treatment induced him to delay bringing the action. He says that within days after the incident, he attended the surgery practice of his primary doctor complaining about his back pain and injuries. His injuries were not rectified despite his complaints. He further complains that none of his doctors issued him medical certificates or referred him to the Job Capacity Assessment/Disability Assessment Scheme for further investigation and assessment.

53. Over the years from 2002-2016, after complaining to his treating doctors at Waterloo Medical Centre, he was sent for radiology examinations with negative or inconclusive results. He says that doctors were reluctant to rectify his injuries and that none of these doctors told him that his back and body pains and health disorders had been caused by his spinal injuries. He was also not informed about the risk of paraplegia, pain management procedures or pain relief options.

The defendants’ submissions

54. The defendants submitted that there was no conduct by any of them that induced the plaintiff to delay in bringing the action.

Resolution

55. The plaintiff’s submissions do not directly address s 60E(f) of the Limitation Act, and do not set out any conduct by the defendants that induced him to delay in bringing these proceedings, other than failing to diagnose him with injuries he says he sustained in the incident. Earlier, he stated that the doctors destroyed their records, but there is no evidence to support this assertion.

(g) The steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received

The plaintiff’s submissions

56. The plaintiff says that he became aware about the content of the Job Capacity Assessment report only in the middle of 2018. To that date he had no opportunity to have the matter legally accessed, commence the action and file the claim for damages, due to time limitation restrictions in relation to 17-year-old old injuries as the general rule, which in his view is not correct.

57. The plaintiff says that he requires significant amount of time, “up to five years in the future”, for preparing and filing the statement of claim. The defendants submitted that this further delay offends Division 1, Part 6 of the Civil Procedure Act 2005 (NSW) and the purpose of the Limitation Act.

The defendants’ submissions

58. The defendants submitted that the plaintiff has not provided any evidence that he has made adequate steps to obtain legal advice or expert medical reports.

Resolution

59. Even if I were to accept the plaintiff’s evidence that he only became aware of his condition in 2018 when he read the Job Capacity Report, that report is not in evidence. Further, the plaintiff says he will require another 5 years to seek legal advice and file a statement of claim. He admits he is already some 15 years out of time, or 10 years pursuant to ss 60C and 60E of the Limitation Act, to commence proceedings. To date he has provided no evidence that he has obtained legal advice, and he has provided no expert medical reports to substantiate his claims.

(h) The extent of the plaintiff’s injury or loss

60. The plaintiff says that due to the injuries and disorders inflicted during and initiated by the incident, his work capacity has been reduced. He was a skilled and qualified IT professional, expected to lead a productive professional life until retirement age, but says this did not occur. He says that his injuries have resulted in significant loss of income in the past and future.

61. He says has also suffered and continues to suffer ongoing pain, limited movement, reduced physical capacity and continued disabilities. His evidence is that he needs regular treatments from an osteopath and physiotherapist to maintain his spine flexibility and manage the back pain. He says he will also require further “expensive medical treatment” as his health conditions deteriorate.

Resolution

62. Again, without any supporting medical evidence, it is difficult to assess the plaintiff’s extent of injury or loss. The plaintiff’s submissions on this topic merely broadly allege that he has suffered damage as a result of his doctors’ failures to diagnose the injuries he says he sustained in the incident. Aside from what the plaintiff says, there is no medical evidence or any other evidence to support his case. I have had regard to these matters and consider them to be very unpersuasive.

Just and reasonable to extend time

63. If I am wrong in relation to disabilities, the last issue to be determined after making my findings pursuant to ss 60C and 60E of the Limitation Act is whether it is just and reasonable to extend the limitation period.

64. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541, the High Court considered the nature of the discretion conferred by s 31(2) of the Queensland Limitation of Actions Act 1974. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. In Taylor, Toohey and Gaudron JJ stated at 548:

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

65. To put it another way, the Court must consider whether it is just and reasonable to grant the plaintiff an extension of time. The ultimate test in any such application is whether a fair trial can be conducted notwithstanding any delay. In weighing prejudice, its impact upon a fair trial is the primary focus: see Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199.

66. Because of the lengthy delay of about 15 years in bringing these proceedings, the defendants will suffer presumptive prejudice. However, the defendants have not provided any evidence of actual prejudice.

67. In terms of whether the plaintiff has a viable cause of action, the defendants have submitted that, based on the plaintiff’s reply submissions and the preliminary outline submissions filed 25 August 2020, he has presented insufficient evidence to adequately establish his case. I note that there are no specific allegations directed to the first, third and fourth defendants. Nor has the plaintiff produced supporting medical documentation, including the GP’s clinical notes, medical imaging and the Job Capacity Assessment disability report to which he refers.

68. The plaintiff has also failed to provide any medical expert report on liability, which is required by UCPR 36.16 to allow the Court to assess, in positive terms, whether a reasonable cause of action lies with any real prospects of success. This expert’s report in addition to the doctor’s treatment also needs to address matters raised in s 5O of the Civil Liability Act: see South Western Sydney Local Health District v Gould [2018] NSWCA 69. Section 5O sets out the standard of care for professionals as follows:

“5O Standard of care for professionals

(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.”

69. As the plaintiff has not produced any supporting evidence to support his assertions against the defendants, some 15 years after he says his injury became known to him, I am not satisfied that he has demonstrated on the balance of probabilities that he has a viable cause of action. In the exercise of my discretion, the application for an extension of time under the Limitation Act should be refused.

70. The result is that the plaintiff’s application for an extension of the limitation period fails. It follows that the proceedings should be dismissed.

71. As foreshadowed, as I have dismissed the proceedings and in light of the Registrar’s orders on 2 December 2020, it is unnecessary to determine the other matters raised in both parties’ notices of motion.

Costs

72. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants’ costs of the proceedings on an ordinary basis.

The Court orders that:

1. The plaintiff’s amended summons dated 5 February 2020 and the proceedings are dismissed.

2. The plaintiff is to pay the defendants’ costs of the proceedings on an ordinary basis.

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Decision last updated: 24 March 2021