Sexton-McGrath v Seymour Health (Ruling)
[2021] VCC 1768
•19 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
MEDICAL LIST
Case No. CI-20-00469
| PATRICIA SEXTON-MCGRATH | Plaintiff |
| v | |
| SEYMOUR HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 19 September 2021 via Zoom | |
DATE OF RULING: | 19 November 2021 | |
CASE MAY BE CITED AS: | Sexton-McGrath v Seymour Health (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1768 | |
REASONS FOR RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Limitation of actions – Personal injury – Medical treatment – Application to bring claim for common law damages out of time – Negligence of solicitors – Prejudice – Fair trial
Legislation Cited: Limitation of Actions Act 1958, s27L
Cases Cited:WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) [2020] VSC 639; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; Tsiadis v Patterson (2001) 4 VR 114; Van Gerven v Amaca [2012] VSC 131; Delai v Western District Health Service and Anor [2009] VSC 151; Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Damman v Peninsula Health [2012] VSC 572
Ruling:Order extending the period of limitation to the cause of action set out in the plaintiff’s statement of claim against the defendant to 7 February 2020
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S D Martin | Saines Lucas |
| For the Defendant | Mr J Ruskin QC with Mr M J Hooper | Meridian Lawyers |
HIS HONOUR:
Introduction
1The plaintiff, Patricia Sexton-McGrath, is now 59 years of age. On 15 March 2007, she attended the Seymour District Memorial Hospital (“the hospital”) for a medical procedure.
2The defendant, Seymour Health, is the operator of the hospital.
3During the medical procedure the plaintiff required an anaesthetic, and was extubated, following which she aspirated an amount of fluid (“the medical event”). Her respiratory rate worsened and she was subsequently arranged to undergo emergency transfer to the Dandenong Hospital, where she spent approximately 24 hours in the intensive care unit, before returning to the hospital.
4When the plaintiff returned from the emergency treatment at Dandenong Hospital she understood that she had suffered a life threatening event. Someone at the hospital told her that after the medical procedure when the breathing tube was pulled out she had vomited and “the vomit had gone down my lungs. A few different staff members told me that they or the hospital had helped save my life”.[1] She thought that she had vomited and stopped breathing and that was the cause of her adverse event.[2] At the time she didn’t ask what had gone wrong. She was just grateful to the staff at the hospital for intervention which saved her life.[3]
[1] Affidavit of the plaintiff sworn 21 May 2021, paragraphs 8-9, Plaintiff Court Book (“PCB”) 22-23
[2] Transcript (“T”) 34 Lines (“L”) 1-2
[3] T36, L13-14
The common law proceeding
5The plaintiff did not take any steps to obtain legal advice regarding the medical event until approximately nine years had passed. The plaintiff says that she was aware that she had a brain injury from the medical event, but that it was not until early-mid 2016, when she was watching a documentary TV show involving ambulance officers dealing with patients who had aspirated fluid, that she developed an appreciation “that what happened to her should not have happened”.[4]
[4]Plaintiff’s outline of submissions, paragraph [16]
6In October 2016 the plaintiff approached Saines Lucas solicitors, and they commenced acting for her in respect to the potential common law claim against the hospital arising out of the medical event.
7By her statement of claim dated 16 February 2021, the plaintiff alleges negligence against the hospital. She raises various particulars of negligence that centre around an alleged failure to perform appropriate observations of her; failing to take into account her previous medical history; and failing to exercise reasonable care in the provision of medical services provided to her.
8Her claim against the defendant was summarised in this application by reference to medico-legal opinion obtained by her and expressed in a report dated 30 November 2020 from Dr Andrew Ross, retired specialist anaesthetist, that she had incurred an immediate post operative respiratory depression that was not recognised resulting in an obstructive airway with negative pulmonary oedema. The oedema was misdiagnosed as gastric acid aspiration and this saw a significant delay in securing the airway with re-intubation and a significant period of hypoxia resulted before intubation was achieved.[5]
[5] PCB 94
9The defendant, by a defence dated 23 March 2021, denies negligence. In addition, it raises the fact that the plaintiff’s common law proceeding is statute-barred pursuant to s27D of the Limitation of Actions Act 1958 (Vic) (“the Act”).
This application
10It is common ground that the plaintiff’s common law claim was commenced out of time. It is also common ground that the period of delay is 14 years and 2 months.[6] This is an application by the plaintiff for an extension of time in which to bring the common law proceeding.
[6] T15, L10-15
11It is agreed that s27D of the Act is applicable. That section provides as follows:
“ Limitation period for personal injury actions—general
(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.
(2) This section does not apply to a cause of action that is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.”
12This application proceeded in the “usual way”. The parties filed and tendered supporting affidavits and submissions. The plaintiff gave oral evidence. In addition, Ms Katalina Toth, solicitor, gave oral evidence. Ms Toth is the solicitor at Saines Lucas with the carriage of the plaintiff’s file, subject to considerable overall supervision of the managing partner and accredited personal injury specialist, Mr Nick Lyons.[7] I have taken into account the oral and written evidence, as well as the parties’ submissions. However, I shall only refer to that material to the extent necessary for this ruling.
[7] T72, L12-24
13The plaintiff’s position when this application commenced had been that her potential cause of action against the defendant did not become discoverable by her until she saw the television program in early to mid-2016. At the conclusion of the evidence, the defendant accepted that although challenged in cross-examination, she did not resile from her evidence that she did not know that her injuries were caused by the fault of the defendant until early-mid 2016. As such, the defendant – in my view sensibly and appropriately – accepted that the period under s27D(1)(b) of the Act was the first period to expire, namely the 12‑year “long stop” limitation period.[8]
[8] T114, L6-30
14The concession by the defendant regarding “discoverability” substantially narrowed the scope of the circumstances to be considered. The issues narrowed essentially to be firstly, a consideration of the general and specific prejudice to the defendant, and secondly, a consideration of the conduct of the plaintiff’s solicitors, and when all relevant circumstances were considered and synthesised whether the period of limitation should or should not be extended.
A chronology of agreed key dates and events
15Before setting out a chronology of agreed key dates and events, at the outset two things need to be noted. Firstly, the 12‑year “long stop” limitation period expired on 14 March 2019. Secondly, the plaintiff consulted her current solicitors, Saines Lucas, approximately 2½ years before the expiration of that limitation period. As articulated by the defendant in its written closing submissions:
“There was a two and a half year window (from 12 October 2016) in which Saines Lucas could have brought a proceeding to which there would have been no limitations defence.”[9]
[9] Exhibit D4
16Next, a chronology of key dates and events is as follows.
(i)1962: Plaintiff born.
(ii)2002: Plaintiff undergoes surgery at Alexandra Hospital and suffers nausea and vomiting after undergoing a general anaesthetic.
(iii)15 March 2007: Plaintiff undergoes a medical procedure at the defendant’s hospital and suffers the medical event.
(iv)After discharge from the hospital, the plaintiff attends the general practitioner, Dr David Kelly. Referral occurs to Dr Katrina Reardon, neurologist.
(v)Early - Mid 2016: Plaintiff watching a television show and forms an appreciation that the medical event may occurred due to the negligence of the defendant.
(vi)16 October 2016: Plaintiff attends Mr Gavin Francis, solicitor, at Saines Lucas.
(vii)November 2017: Mr Francis retired due to ill health, and Mr Ian Vinson took over the plaintiff’s file at Saines Lucas.
(viii)10 May 2018: Mr Vinson suffers a serious medical condition, and the file is transferred to Ms Toth.
(ix)August 2018: Ms Toth’s husband suffers a serious medical condition requiring her to take a leave of absence. Mr Lyons, partner at Saines Lucas, had oversight of the file during her absence.
(x)7 February 2020: A generally indorsed writ was filed to commence the common law proceeding.
(xi)21 January 2021: The writ was served on the defendant.
(xii)16 February 2021: The statement of claim was served on the defendant.
(xiii)23 March 2021: The defence was filed, raising as an issue the expiration of the limitation period.
(xiv)11 May 2021: Affidavit of the plaintiff was sworn in support of an application to extend the limitation period.
(xv)27 May 2021: Medical Panel certificate of determination.
(xvi)8 October 2021: The plaintiff commences an application for judicial review of the Medical Panel determination.
17Pausing again, this extension of time application proceeded as if a summons had been taken out by the plaintiff seeking an extension of the relevant limitation period. In fact, no such summons had been taken out until that procedural defect was pointed out. Eventually a summons was filed on 19 October 2021.
Relevant legal principles
18Before moving to a consideration of the relevant evidence and a synthesis of all the relevant circumstances of this application, it is convenient to set out and to note the applicable legal principles.
19Section 27K(2)(b) of the Act allows the Court, if it decides that it is just and reasonable to do so, to order the extension of the period of limitation applicable to the cause of action for such period as the Court determines.
20Section 27L of the Act sets out the matters to be considered in determining applications for the extension of a limitation period. That section requires the Court to have regard to all of the circumstances of the case, including (but not limited to):
“(a)the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e) the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.”
21The plaintiff bears the onus to establish that it is just and reasonable to order the extension of the relevant limitation period applicable to her common law proceeding.
22In determining whether the plaintiff has discharged her onus, I am required to take into account all of the circumstances of the case, and to synthesise all of the matters required to be taken into account, including those provided for by s27L(1) of the Act.
23An issue that arises is whether the defendant is now able to get a fair trial. The relevant test is whether the defendant is able to have a fair trial, not a perfect one. As Keogh J said in WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2):[10]
“A party is entitled to a fair trial, not a perfect one. The lapse of time, absence of documentary evidence, or inability to call witnesses unavailable because of death or incapacity, does not automatically result in a trial being unfair to the degree that a stay should be granted.”
[10][2020] VSC 639 at paragraph [204]
24The discretion to extend a limitation period should be exercised in the context of the rationale for the existence of the limitation period. In the often-cited passage in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor,[11] his Honour said that:
“First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.”
[11](1996) 139 ALR 1
25It is relevant that the legislation considered in Brisbane South is different to s27L of the Act, but, as has been noted, the rationale to which McHugh J referred in Brisbane South underpinned and informed the legislative purpose of provisions which impose limitation periods, and those giving the Court the power to extend time. The subject matter of those provisions is the lapse of time and the effect of delay on the quality of justice.[12]
[12]Van Gerven v Amaca [2012] VSC 131 per Beach J at paragraph [46]
26While sometimes the deterioration in the quality of justice is palpable, on other occasions prejudice may exist without the parties or anybody else realising that it exists. What has been forgotten can rarely be shown.
27Next, the parties agree that the approach to be taken to the resolution of this application is as set out by Buchanan JA in Tsiadis v Patterson[13] where his Honour said:
“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. I agree with Brooking, J. in Bell v. S.P.C. Ltd when he said:
“The question posed by s23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of subs(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them. ... It is for the plaintiff to satisfy the Court that it is just and reasonable to extend the period.” ”
[13](2001) 4 VR 114 at paragraph [33]
28Finally, in the present case, and relevant to the exercise of the discretion, is the conduct of Saines Lucas, the plaintiff’s solicitors. The defendant submitted, with much force, that Saines Lucas had been negligent in not issuing a writ within time, as ultimately was conceded by Ms Toth.[14] The defendant submitted that the case against the solicitors was “overwhelming” and was a relevant factor in the plaintiff failing to demonstrate that it was just and reasonable to extend time. The plaintiff accepts that the availability of a cause of action against her solicitors is an appropriate matter to take into account and that the conduct of her solicitors is a “red hot”[15] issue in this application. But, as her counsel submitted, it was not a decisive consideration and is rather a question of the weight to be attached to it in the synthesisation of factors.
[14]T98, L24-28
[15] T135, L17
The evidence
(i) The plaintiff’s evidence
29It is unnecessary to deal in detail with the plaintiff’s evidence. A lot of her evidence is directed towards the issue of discoverability, which became less of a consideration once the defendant accepted that it was only in approximately early - mid 2016 that the plaintiff had an awareness of a potential claim against the defendant.
30Further, much of the balance of the plaintiff’s evidence was mostly directed towards the conduct of her solicitors and the steps taken by them to commence the proceeding. That evidence speaks for itself and reveals a “perfect storm” that saw the “long stop” come and go without anything done to prevent that limitation period expiring. The evidence reveals a combination of inaction; the passing of the plaintiff’s file between solicitors at the firm; delayed attempts to obtain relevant evidence (for various reasons including difficulty finding appropriate experts and requests for Law Aid funding); and seemingly a simple failure to note the relevant date, all culminated in Saines Lucas failing to commence proceedings when the plaintiff was still within the 12‑year “long stop” window to do so.
31Whilst there was an attempt by Ms Toth in her evidence to explain and justify how Saines Lucas allowed the 12 year “long stop” limitation period to pass, at the end of the day, her explanations – some of which generate sympathy, in that they relate to serious health issues suffered by solicitors and family members – do not excuse allowing the limitation period to expire, a fact that Ms Toth again ultimately conceded during cross-examination.[16]
[16] T96, L19-25
32What is stark is the failure by Saines Lucas to make a relevant record of the 12‑year “long stop” limitation date and a complete absence of any written advice to the plaintiff about that date, something again that Ms Toth conceded should have been done.[17]
[17] T103, L10-19
33I need not say more about this aspect of the evidence, because, as already mentioned, at the end of the day the solicitor currently acting for the plaintiff agreed in cross-examination that Saines Lucas had been negligent.
34But for completeness, I acknowledge that during the cross examination of Ms Toth, counsel for the plaintiff, in my view in an appropriate exercise of judgment by an independent barrister briefed to act on behalf of the plaintiff, conceded that Saines Lucas should have shown greater urgency on the file and a generally endorsed writ should have been filed before the expiration of the “long stop” provision in March 2019.[18]
(ii) The defendant’s evidence
[18] T88, L7-13
35The defendant relies on an affidavit sworn by Ms Abby Neylon, solicitor, on 6 September 2021[19] together with the exhibits to the affidavit (“the Neylon affidavit”). Ms Neylon was not required for cross-examination and there is no challenge to the factual matters set out in the Neylon affidavit.
[19] DCB 3
36The Neylon affidavit sets out attempts on behalf of the defendant to identify relevant witnesses and other relevant evidence.
37The records of the defendant, including nursing notes, relevant to the medical event are available and have been examined.
38The notes identify nurses involved in the care of the plaintiff in the post-anaesthetic care unit. Registered Nurse (“RN”) Karen Lamaro still works for the defendant but has no independent recollection of the plaintiff or having been involved in her post-operative care, although as counsel for the plaintiff highlighted, it is not clear that the relevant notes have been shown to her (or the other nurses) to try and refresh her memory.[20] RN Stacey Fischer no longer works for the defendant and has a “vague” recollection of a patient who was re-intubated post-operatively but no recall of directly treating that patient. RN Vikki Philpot is no longer employed by the defendant but has some vague recollection of the plaintiff, but no specific recollection of the treating anaesthetist or specific details of the plaintiff’s treatment in the post-operative unit. Dr Paramenthiran Ramanathan was the treating anaesthetist. He has a vague recollection of a patient who had to be re-intubated post-operatively, but he cannot recall her name or any further details of her treatment.
[20] T141, L21-27
39The Neylon affidavit also refers to and exhibits a Medical Panel certificate of determination and reasons dated 27 May 2021. The Medical Panel determined that the plaintiff did not satisfy the threshold level for her to claim general damages in the common law proceeding.
40Pausing here, the plaintiff has commenced a proceeding in the Supreme Court of Victoria by way of Originating Motion dated 8 October 2021 seeking judicial review of the Panel determination. That proceeding was commenced out of time[21] and the plaintiff also seeks an extension of time for such judicial review. This is a complicating factor for the plaintiff as I was informed that should I not extend the period of limitation then Saines Lucas would no longer act for the plaintiff in her application for judicial review.[22] While that might be correct, it is not strictly relevant to the decision regarding an extension of the limitation period, because, if I refuse to extend time, she will need new solicitors to act for her in any subsequent proceeding against her current solicitors.
[21] Not, it should be noted, due to any fault of her solicitors
[22] T138, L7-16
A synthesis of relevant matters
41Turning firstly to the matters set out in s27L(1) of the Act.
(a) The length of and reasons for the delay on the part of the plaintiff
42It is accepted that it was only in early-mid 2016, when watching a television program, that the plaintiff had an appreciation that she might have a cause of action against the defendant. Thereafter, she consulted her current solicitors and appears to have done all things asked of her by them. There is no suggestion of any delay on her part.
43As will be patently obvious, any delay from when she consulted her solicitors in October 2016 falls at the feet of her solicitors. As mentioned, while various explanations were proffered by Ms Toth as to why the solicitors did not commence proceedings at an earlier point in time, ultimately such explanations do not, in my opinion, excuse the failure to commence a proceeding before the expiry of the “long stop”. But, in that regard, there is no evidence that the plaintiff was aware of the twelve year “long stop” and so there can be no criticism of her for letting that come and go.
44The delay is considerable, but I do not consider it to be inordinate. The length of the delay is not of itself a reason to refuse the application and should be seen in light of the fact that it was nine years after the medical event before the plaintiff had the requisite “discoverability” of the potential common law claim against the defendant.
(b) The extent to which, having regard to the delay, there is likely to be prejudice to the defendant
45I accept that there is prejudice to the defendant, both generally due to the passage of time, and in a specific sense. Indeed, the plaintiff accepts there is a degree of specific prejudice to the defendant.[23]
[23] T11-12
46The defendant submitted, and I accept, that there is specific prejudice due to the lack of recall from the nurses and the anaesthetist as to the medical event, as set out in the Neylon affidavit.
47However, the plaintiff submitted, the Court should be reluctant to find that due to the passage of time their memory of events could not be refreshed by looking at documents. The evidence reveals that the nurses and the anaesthetist have some vague recollection of events, without recourse to the notes, and of course the notes are still available.
48I accept that it may be that the witnesses’ memories might be improved by reference to the relevant hospital notes, but, equally they may not and so for present purposes, all that can be concluded is that the evidence reveals a lack of recall of events from relevant witnesses and there is likely to be prejudice to the defendant as a result, especially for matters that may not have been recorded in the notes.
49However, I accept the submission of the plaintiff that there is no evidence that, due to the passage of time, the defendant will not be able to obtain expert opinion for its defence.[24]
[24]T144, L1
50Obviously, the plaintiff has identified appropriate experts and obtained opinion from those experts. It is not a situation whereby appropriate experts have been unable to be identified, or unable to provide opinion evidence, for example, due to a lack of objective evidence.
51At this stage there is no expert opinion relied on by the defendant but there is also no evidence that it has tried and failed to be able to obtain relevant opinion. In light of the opinions obtained by the plaintiff I consider that the defendant should be able to obtain it’s own expert opinion on “liability”, should it wish to do so, particularly as the plaintiff’s nursing notes are available.
52In my view, there is specific prejudice to the defendant but, on balance, it is not such that it cannot get a fair trial.
(c) The extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant
53This section does not appear to be relevant.
(d) The duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability
54This section also does not appear to be relevant. This is not a case where the plaintiff submits that she is under a legal disability.
(e) The time within which the cause of action was discoverable
55A discussion of this section overlaps with the earlier discussion. The defendant accepts that the plaintiff was unaware of the potential cause of action until approximately early-mid 2016.
(f) The extent to which the defendant acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages
56Once again, a discussion of this section overlaps with the earlier discussion about the fact that the plaintiff appears to have done everything promptly and reasonably once she retained her solicitors. It is the solicitors who have not acted promptly and reasonably.
(g) The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received
57The plaintiff’s affidavit material reveals that she attended her solicitors in October 2016. Her affidavit material sets out steps and mis-steps taken to obtain medical/expert advice relevant to the common law claim. However, as already indicated, those steps do not excuse the fact that the “long stop” limitation period was allowed to expire.
58As submitted on behalf of the defendant, the solicitors had two and a half years to “line up the ducks”,[25] and they could have, and should have, obtained sufficient medical and expert material to be in a position to issue proceedings before the expiration of the “long stop” limitation period.
[25]T125, L20
The conduct of the plaintiff’s solicitors
59The factors set out in s27L of the Act are not exhaustive. There can be other matters that must be taken into account in the synthesis, to determine if it is just and reasonable to order the extension of the period of limitation. In this particular application, the conduct of the plaintiff’s solicitors is front and centre as one of the matters that I must take into account.
60At the risk of repetition, the plaintiff’s solicitors accept that their negligence meant that the “long stop” limitation period was allowed to expire.
61The parties each made submissions regarding the conduct of the plaintiff’s solicitors and referred to relevant authorities. I have taken the submissions and authorities into account.
62One authority that the plaintiff placed emphasis upon was Delai v Western District Health Service and Anor.[26] In Delai, Beach J dealt with a factual scenario where the plaintiff was said to have a potential claim in negligence against her solicitors, and that was a relevant matter, so it was said by the defendant in that case, to not extend the limitation period, although after the synthesis of all relevant matters his Honour extended the limitation period..
[26][2009] VSC 151
63As Beach J said in Delai, by reference to the possibility of a claim against the solicitor:
“This, of course, does not mean that in every case where there is the possibility of successfully bringing proceedings against a solicitor, that the discretion contained in s 23A (or in this case s 23K) should be exercised against the plaintiff.”[27]
[27]Ibid, at [27]
64Further, in Delai, Beach J said at paragraph 34:
“Whilst it might be said that the plaintiff’s prospects in such a case are reasonable, in reality there is insufficient material before me to enable a definitive conclusion as to the plaintiff’s likely prospects of success in such a proceeding. While the existence of a potential claim is relevant, it is not, in my view, a matter to be accorded great weight in the performance of the synthesis required by s 27K. Further, there are two additional reasons why only limited weight should be accorded to this matter. They are:
(a)First, any damages recovered from the plaintiff’s solicitors would only be for the loss of the right to sue the current defendants rather than damages for the injuries actually sustained.
(b)Secondly, there are added costs and an added complexity associated with bringing a new claim against the plaintiff’s solicitors, rather than the present proceeding.”[28]
[28]Ibid, at [34]
65The defendant referred to the decision of Forrest J in Gordon v Norwegian Capricorn Line (Australia) Pty Limited,[29] a decision referred to by Beach J in Delai. In Gordon, Forrest J said at paragraph 86:
“It follows that a potential claim against former solicitors is a relevant consideration, but that the question of what weight is to be given to it depends on the circumstances; a court must be careful in ascribing weight to the prospect of such a claim, given that the full circumstances surrounding such a claim may not be known. A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against the solicitors as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms – diminution in the value of the claim as well as any added costs and the complexity of the proceeding against the former solicitor.”
[29][2007] VSC 517
66In Gordon, the facts were that the solicitors on the record for the plaintiff at the relevant time allowed a limitation period to expire. The solicitors in that case did not suggest they had any answer for their conduct and, on the facts of that case, Forrest J determined that the plaintiff had a powerful, if not overwhelming case, against the solicitors[30] and that it was a case where the strength of a claim against the solicitors could be determined. His Honour held that the existence of a viable, indeed, strong cause of action against the plaintiff’s original solicitors as being of significant consideration. Ultimately, after a synthesis of all relevant matters, his Honour was not persuaded in all the circumstances to extend the period of limitation.[31]
[30]Ibid, at [107]
[31]Ibid, at [114]
67The defendant further referred to Damman v Peninsula Health,[32] a decision of T Forrest J involving a limitation period and a potential cause of action against solicitors. In that case, his Honour held that the fault for the delay lay largely with the plaintiff’s former solicitors for failing to commence proceedings when in time and, in fact, there was the evidence where the plaintiff’s former solicitor apologised and admitted “we had stuffed up”.
[32][2012] VSC 572
68As T Forrest J observed in Damman, the claim against the solicitor appeared reasonably clear-cut. After undertaking a synthesis of all relevant factors in that case (which was a case about sexual assault where the alleged perpetrator had died), his Honour concluded that it was not just and reasonable to extend the limitation period.
69Ultimately, the availability of a cause of action against the plaintiff’s solicitors is one of the matters to take into account in the synthesis that is required to be undertaken, but it is not determinative of the outcome.
70In the present case, the plaintiff’s principal cause of action against the defendant, on the evidence before me, is not what I would describe as a simple case such as the factual scenario in Gordon or, indeed, in Damman and that is in my view a distinguishing feature of this proceeding. To some extent, the difficulty that the plaintiff’s solicitors have had, notwithstanding their lack of urgency, to identify and obtain appropriate expert opinion, emphasises that the complexity of the liability case, as to some extent does the conclusion of the Medical Panel, that the plaintiff did not, contrary to her assertion, have a significant brain injury. However, the facts of this application do provide considerable detail about the conduct of the plaintiff’s solicitors and reveal negligence. There is no need to speculate as to the strength of the claim she may have against her solicitors.
71The claim against her solicitors is different to the claim against the defendant. I accept that it would involve her needing to retain new solicitors with delay and expense, further complicated by the related application for judicial review. These are relevant matters to take into account, but so is the fact that the refusal to extend the period of limitation is to some extent ameliorated by the potential claim against the solicitors.
72The defendant submitted that whether the plaintiff is permitted to proceed against the hospital, or will instead sue her solicitors, either case will involve the merits of the plaintiff’s underlying case against the hospital being tested which, to some extent, is correct. Although, by the same token, the issue should not be conflated as simply substituting one defendant for another. The potential cause of action against the solicitors is not the same as the claim against the defendant, even if some of the evidence required to prove either claim is ultimately the same.
Is it just and reasonable to extend the limitation period?
73The delay in this proceeding is considerable, but I do not consider it inordinate.
74There is general and specific prejudice as a result of the delay, particularly in regard to the lack of recall of the nursing staff and the anaesthetist involved in the plaintiff’s care at the time of the medical event. But that alone does not, in my judgment, deprive the defendant of an acceptably fair trial for the reasons already given.
75There is then the need to consider the clear failure by the plaintiff’s solicitors to prevent the expiry of the “long stop” limitation period, described by the defendant as an “overwhelming” claim against them. While this is a very relevant circumstance to take into account, again in isolation it does not mean the application should be refused.
76To allow an extension of the limitation period will obviously deprive the defendant of the benefit of the limitation period. On the other hand, to refuse the application to extend time will obviously deprive the plaintiff of the ability to bring a claim against the defendant and will send her down a potentially lengthy and expensive path to prosecute an available cause of action against her solicitors, which must be remembered is a cause of action for the right to sue the current defendant rather than for damages for the injuries actually sustained.[33]
[33] Delai (op cit)
77Next, the defendant submitted that the word “just” in s 27K(2)(b) “has work to do” as it is not only a test of reasonableness. In that context, the defendant submitted that it would not be just and reasonable to extend the limitation period because the reason the proceeding is statute barred is the negligence of the solicitors.
78But, the plaintiff only became aware that she had a potential claim against the defendant in early-mid 2016. Thereafter, she acted promptly and retained solicitors and left the progress of her claim in their hands, ignorant of the “long stop”. There can be no criticism of her. The cross examination, in my opinion, also revealed she has a reasonable recall of the events at the hospital.
79In circumstances where the cause of action became discoverable in early-mid 2016, the plaintiff herself has acted reasonably, relevant witnesses have been located and are still available albeit with vague memory of events, together with the availability of relevant clinical records and the ability to obtain relevant expert opinion, means that, in my view, an acceptably fair trial is still available to the defendant. The plaintiff’s solicitors let her down by allowing the “long stop” to expire, but in circumstances where an acceptably fair trial is still available to the defendant, in my view it would be unjust to the plaintiff to force her to commence a different proceeding against her current solicitors, which is not as simple as substituting one defendant for another.
80A synthesis requires a combination of circumstances, some of which might point in different directions, to arrive at a result. It is not a matter of weighing one against the other, for example, it is not a matter of weighing a potentially strong negligence claim against the solicitors to the exclusion of other circumstances. Ultimately, I conclude that when all relevant circumstances and matters are synthesised, it would be just and reasonable to extend the period of limitation.
81Therefore, for the reasons given, the application to extend the period of limitation is allowed.
82I shall hear from the parties as to consequential orders.
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