Smith v Scard

Case •

[2002] NSWSC 650

•

26 July 2002

No judgment structure available for this case.
CITATION: Smith v Scard [2002] NSWSC 650
CURRENT JURISDICTION: Common Law
FILE NUMBER(S): SC 20605/2000
HEARING DATE(S): 8 July 2002
JUDGMENT DATE: 26 July 2002

PARTIES :


Lorraine Smith
(Plaintiff)

Andrew Muir Scard as executor of the will of Harry Tyer, deceased
(First Defendant)

Central Sydney Area Health Service
(Second Defendant)
JUDGMENT OF: Master Harrison
COUNSEL :

Mr M Rollinson
(Plaintiff)

Mr S Woods
(First Defendant)

Mr R Sergi
(Second Defendant)
SOLICITORS:

Carters Law Firm
(Plaintiff)

Blake Dawson Waldron
(First Defendant)

Lynn Boyd
(Second Defendant)
CATCHWORDS: Extension of time - ss52, 60C & E, 60G & I Limitation Act - medical negligence
LEGISLATION CITED: Limitation Act 1969 (NSW)
CASES CITED: State Rail Authority v Hammond (1988) 15 NSWLR 396
Kirby v Leather [1965] 2 QB 367
Pointon v Walkley (1951) SASR 121
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
BHP Steel (AIS) Pty Limited v Guidice (& Ors) (NSWCA, unreported, 7 March 1997)
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
McLean v Sydney Water Corporation [2001] NSWCA 122
Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315
Szerdahelyi v Bailey, Ortado v Bailey, Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997)
Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485
Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995)
Manfield v Heather [2002] NSWCA 36
Drayton Coal Pty Limited v Drain (NSWCA, Cleeson CJ, unreported 22 August 1995)
Deming No 456 Pty Limited v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129
DECISION: (1) The plaintiff's notice of motion filed 9 November 2000 is dismissed; (2) The plaintiff is to pay the defendants' costs as agreed or assessed.

- 9 -

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      MASTER HARRISON

      FRIUDAY, 26 JULY 2002

      20605/2000 - LORRAINE SMITH v
              ANDREW MUIR SCARD AS EXECUTOR OF
              THE WILL OF HARRY TYER, DECEASED
              & ANOR
      JUDGMENT (Extension of time – ss 52, 60C & E, 60G & I
      Limitation Act; medical negligence)

1 MASTER: By notice of motion filed 9 November 2000 the plaintiff seeks an extension of time within which to commence proceedings pursuant to ss 60C and E and ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act); or alternatively pursuant to s 52 of the Act. By amended notice of motion filed 5 April 2002 the plaintiff sought additional orders namely, a declaration that at all material times from about 18 November 1992 until about early 1998 she was disabled as defined in s 11(3)(b)(i) of the Act and by virtue of s 52 of the Act the limitation period for the plaintiff’s causes of action was suspended during that period. The first defendant Andrew Muir Scard is sued as executor of the will of Dr Harry Tyer who died on 2 July 1995. The second defendant is Central Sydney Area Health Service.

2 The plaintiff relied of her affidavit sworn 4 November 2000, the affidavit of Alan Carr sworn 5 November 2000 and two affidavits of her solicitor Trevor John Carter sworn 17 February 2001 and 12 December 2001. The first defendant relied on the affidavits of Julie Chandra affirmed 31 January 2002, 26 March 2002, 3 July 2002 and 8 July 2002 and the affidavit of Dora Doukas sworn 8 July 2002. The second defendant relied on the affidavits of Melinda Conry affirmed 11 December 2001 and 2 April 2002.

3 The plaintiff was born on 21 November 1943 and is currently 58 years of age. She is a chronic sufferer of deforming poly arthritis. The plaintiff has undergone a number of surgical procedures at Rachel Forster Hospital (the hospital). In 1988 she underwent a left knee replacement, in 1989 a right hip replacement and in 1992 a right knee replacement. The plaintiff now uses a wheelchair. I examined the plaintiff carefully when she was examined and cross examined. I formed the view that she gave evidence to the best of her recollection and gave truthful evidence.

4 On 2 November 1992 the plaintiff was admitted to Rachel Forster Hospital for a complete right knee replacement under the care of Dr Harry Tyer. The plaintiff alleges that on 11 November 1992 she suffered a cerebrovascular stroke because anti-coagulant medication that she had been receiving was inappropriately ceased prior to her undergoing the knee replacement operation. It is now alleged that an earlier stroke may have occurred undetected while she was in hospital after the operation. Further the plaintiff alleges that the defendants did not advise her of the risks involved in ceasing the anticoagulant medication and had she been properly advised of those risks she would have chosen either not to proceed with the surgery unless the medication was administered or alternatively have chosen not to proceed with the surgery at all. Additionally the plaintiff alleged that the defendant failed to resume, or advise the plaintiff to resume, the medication after the operation.

5 I shall consider firstly whether the plaintiff is under a disability; secondly, extension under subdivision 2; and finally an extension of the limitation period under subdivision 3.


      Disability

6 Relevantly “disability” is defined in s 11(3)(b)(i) of the Act as follows:

          “(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.”

7 Section 52 states:

          “(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

                  (ii) the date of the person’s death,
                  (whichever date is the earlier), 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 he is under the same or another disability at any time during the limitation period.”

8 According to Kirby P in State Rail Authority v Hammond (1988) 15 NSWLR 395, s 52 evolved from the 1926 Limitation Act which allowed those of non compos mentis (of unsound mind) to bring actions when they are of sane memory.

9 Lord Denning when dealing with the words “unsound mind” in Kirby v Leather [1965] 2 QB 367 at 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.”

10 In Pointon v Walkley (1951) SASR 121 Mayo J said that it may be accepted that ‘unsound’ is the antithesis of ‘sound’. ‘Sound’, when used in connection with body or mind, denotes the presence of perfect health or, putting it in another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality.

11 The plaintiff suffered a major stroke on or about 11 November 1992. As a result of her stroke she suffered paralysis to the right side of her body and her speech was limited to a few words. She was unable to dress, feed or shower herself. She undertook speech therapy whilst she was in rehabilitation and for approximately twelve months after her stroke. She still requires assistance to dress, feed and shower herself. She has been unable to manage her own affairs since her stroke and unable to travel by herself, and has a full time personal carer. After her stroke, the plaintiff suffered from a loss of memory and impaired speech. Over the next two to three years her speech improved slightly but she still suffers from severe memory loss. She still has some difficulty understanding information that is given to her and having a conversation. From 1992 until 1997 the plaintiff says that she was completely occupied with recovering from her stroke and did not realise what had occurred. The plaintiff’s carer and partner Mr Carr gave support to the plaintiff’s view of her mental capacity. This view is not supported by the medical practitioners.

12 Dr Peter Kendall, consultant physician, in his report dated 11 August 2000, stated that the plaintiff is dysphasic and had an impaired memory. After her stroke she had poor memory and concentration, which in Dr Kendall’s opinion would rob her of initiative, including the ability to give instructions in a legal sense. Dr Kendall concludes that, in his opinion, the patient could not have been expected to given legal instructions for a long time after her stroke, and that no-one around her would have been able to advise her appropriately then. Dr Kendall is a physician and I place less weight on his evidence concerning the plaintiff’s mental capacity. Dr Errol Tompkins psychiatrist, in his report dated 4 July 2002 (Ex B) opined that from his examination of the plaintiff it was his opinion that in the early 1990’s she was mentally incapable of making informed decisions about her future and it would have been far beyond her ability to give instructions to a lawyer.

13 Dr Diana Caine, clinical neuropsychologist, in her report dated 11 June 2002 opines that in the early aftermath – perhaps the first six or even twelve months – of the plaintiff’s stroke, the plaintiff’s ability to reason, plan or take action may well have been impaired. However, Dr Caine is of the opinion that the nature of this event was not such as to have caused impairment in her ability to understand, consider advice or to give instructions about any legal action after that time. Dr JDG Watson, consultant neurologist, in his report dated 10 June 2002, opines that the plaintiff was significantly incapacitated in the first three to four months after her stroke. However after about March or April 1993 he is of the opinion that she would have been able to understand the full import of what had happened and be able to approach this problem, remembering enough of the details, such that she did not have a substantial impediment of reason.

14 Doctors Caine and Watson hold a fairly consistent view that the plaintiff was under a disability for a period of between 4 to 12 months after the stroke. Dr Tompkin’s view of the length of period of disability is less precise. I accept that the plaintiff was under a disability pursuant to s 52 up to and including 11 November 1993. For the period 11 November 1992 to 11 November 1993 the running of the limitation period is suspended.


      Sections 60C and E of the Act

15 The plaintiff relies on s 60C and E or alternatively s 60G and s 60I(1)(a)(iii) of the Limitation Act. Section 60J provides that an order may not be made under subdivision 3 unless the time has expired for making an order under subdivision 2 – see s 60J. Sections 60 C and E fall within subdivision 2 whereas s 60G and s 60I fall within subdivision 3. That being so, I shall consider ss 60C and E first and if the plaintiff fails with this application I shall consider the alternative s 60G and s 60I. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Sydney City Council v Zegarac (1998) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.

16 Section 60C provides:

          “Ordinary action (including surviving action)

          60C(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."

17 This application falls within the time limit provided by s 60C because time commenced to run in relation to the cause of action from 11 November 1993. The limitation period expired on 11 November 1996. The notice of motion was filed on 9 November 2000, ie, within the five year period referred to in s 60C(2).

18 Section 60E provides:

          “Matters to be considered by the court

          60E(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.”

19 In relation to ss 60C and 60E of the Act, Mason P in Zegarac referred to propositions which were uncontroversial. They are:


      (1) Section 60C confers a judicial discretion.

      (2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is “just and reasonable” to make the order for extension.

      (3) In exercising the discretion, the court is required “to have regard to all the circumstances of the case” (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) “to the extent that they are relevant to the circumstances of the case”.

      (4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General’s second reading speech that are set out in the order judgments, and which McHugh J discusses in Taylor .

      (5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles.

20 Justice Powell in Zegarac stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA’s further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do; and secondly although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant.

21 The principles concerning prejudice have recently been considered by the Court of Appeal in Wynter (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 where their Honours stated that the effect of the High Court decision in Taylor’s case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal – see McLean.

22 It cannot be just and reasonable to extend time if the plaintiff does not have a real case to advance. The applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff’s cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish her cause of action. (See Szerdahelyi v Bailey (NSWSC unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485; Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995); and Manfield v Heather [2000] NSWCA 36.

23 The particulars of the plaintiff’s claim in negligence (para 9 S/C) against the defendants is as follows:

          “(a) Gave and obtained no proper or adequate warning or consent;
          (b) Failed to advise the plaintiff that the operation would require temporary cessation of her medication beforehand, with resulting risks to her heart condition;
          (c) Failed to advise the plaintiff that, in view of that risk, she should consider whether to proceed with the operation;
          (d) Failed before or during the operation, to detect a thrombus in the plaintiff’s left ventricle;
          (e) Failed to advise the plaintiff that the thrombus substantially increased the risk referred to in particular (a), and that she should not proceed with the operation and should resume the medication;
          (f) Failed to resume, or advise the plaintiff to resume, the medication after the operation.”

24 At the hearing, counsel for the plaintiff did not formally discontinue the allegations of negligence relating to warnings and consent, ie, paragraphs 9(a) to (e) inclusive of the statement of claim. However particular 9(f) of the statement of claim was the only allegation of negligence which was pressed. The change in the plaintiff’s case came about because the report of Dr Kendall, a physician, dated 7 July 2002 gives a revised medical opinion. After Dr Kendall’s attention was drawn to the fact that the plaintiff was administered the anticoagulant Fragmin during her stay in hospital, he agrees that the use of Fragmin as “a very sound routine chosen electively by most experienced and cautious orthopaedic surgeons, particularly in lower limb joint surgery to guard against deep venous thrombosis which in many cases could lead to fatal pulmonary embolism.” Dr Kendall did not realise at the time of writing his earlier reports that the plaintiff was on Fragmin, and makes no criticism of the hospital or its doctors for choosing that course. The complaint of the plaintiff therefore is simply that the defendants failed to resume, or to advise the plaintiff to resume, taking aspirin after discharge. Accordingly, I strike out paragraphs 9(a) – (e) of the statement of claim as there is no real case to advance in relation to these allegations of negligence.

25 As previously stated that leaves only the allegation of negligence that the defendants failed to resume or advise the plaintiff to resume the medication after the operation (9f). In his report dated 7 July 2002 Dr Kendall stated it was highly probable that the plaintiff suffered a second and more serious myocardial infarction during the postoperative period, which for some reason was not detected by the surgical team at Rachel Forster.

26 Dr Kendall continued:

          “…So far so good, but then, instead of restoring her to her Aspirin anticoagulation regime, which had to be interrupted for her operation, the Fragmin regime was not followed by Aspirin, the clot fragmented and caused her stroke. It is that clot and not a clot from a previous healed infarct which was the cause.

          Thus, the disastrous stroke occurred because, for some reason, the vital Aspirin therapy was not re-instituted. It could easily have been done so during the last day of her Fragmin therapy, although indeed, many physicians would have used a small dose of Aspirin all along, to take advantage of the anti-platelet function in addition to the anti-clotting function of the Fragmin. It is more probable than not that the stroke would not have happened.”

27 Despite furnishing a number of earlier reports, this is the first time Dr Kendall identified a second more serious undetected myocardial infarction suffered during the post operative period. When giving evidence Dr Kendall expanded on his latest written report by stating that the stroke followed an arterial thrombosis. Dr Ellis in his report dated 8 July 2002 agreed that aspirin has been used prophylactically for prevention of arterial thrombosis. However Professor Nade reported that it would not be usual practice to tell a patient to take aspirin after their discharge from hospital. If a patient has been taking aspirin prior to surgery, it would be proper practice to advise a patient to stop taking aspirin pre-operatively. According to Professor Nade it is not the role of an orthopaedic surgeon to instruct a patient to take aspirin post-operatively.

28 Dr Ellis disagrees with Dr Kendall’s opinion that the stroke followed an arterial thrombosis. Dr Ellis, a cardiologist stated that the plaintiff had suffered an antero-septal myocardial infarct and that after discharge she continued to take aspirin. Thus the mechanism that caused the stroke is in dispute as is the issue of whether the plaintiff continued to take aspirin after leaving hospital. These are issues to be determined at trial. I am satisfied that the plaintiff has a real case to advance in relation to whether she should have been advised to resume taking aspirin post discharge from hospital.

29 I turn to consider the factors specified in s 60E of the Act.


      The length and reasons for delay - s 60E(a)

30 The cause of action accrued on 3 November 1992 and the running of the limitation period is suspended until 11 November 1993. The limitation period expired on 11 November 1996. The application seeking the extension of time was filed on 9 November 2000, ie nearly 4 years out of time. I accept that with the passing of time, there will be presumptive prejudice.

31 It was in early 1998, the plaintiff and Mr Carr visited Dr Wilson who explained how he believed her stroke had happened, using a model of a human heart. He said words to the effect “The stroke was caused by a blood clot. Possibly the clot moved away from your heart to the brain.” It was this event that was the catalyst for the plaintiff to investigate whether she had a claim against the medical practitioners and hospital for negligence.

32 After this hearing the plaintiff gave evidence that when a doctor admitted her to hospital on 2 November 1992 for the knee operation she was asked what medications she was taking. She told him that she took medication for arthritis, blood pressure and aspirin. The plaintiff cannot recall the name of the tablet that contained aspirin but she thinks that it came in a bottle. The admitting doctor took the tablets that the plaintiff had brought to hospital with her. At the time of admission a doctor at the hospital told the plaintiff that she should have stopped taking aspirin before the operation because “it makes you bleed (or something)”.

33 Just prior to discharge, Dr Tyer in the company of his entourage of doctors, told the plaintiff that she could go home and that she would be able to throw her crutches away as she would no longer need them. On discharge a male doctor whose name the plaintiff cannot recall gave her an appointment card detailing her next appointment with Dr Tyer. He returned to her some of her tablets that had been handed in on admission. The arthritis and blood pressure tablets were returned. However the plaintiff was adamant that the aspirin was not given back to her. She assumed that she was to continue to take the medication that was returned to her but acknowledged that no-one told her not to take aspirin. It is in relation to these events that the plaintiff now alleges that the defendants were negligent.


      Extent to which delay caused prejudice - s 60E(b)

34 This issue is critical as to whether the defendants can obtain a fair trial. The plaintiff’s hospital records from Rachel Forster hospital from 1965 to 1993 are available. The hospital records from Bankstown/Lidcombe hospital where the plaintiff was admitted after the stroke in November 1992 are also available.

35 As previously stated the plaintiff cannot recall the name of the doctor who discharged her from hospital on 13 November 1992, but remembers that he was male and relatively young. The medical officers employed by the second defendant involved in the plaintiff’s treatment were the (then) medical registrar, Dr Armin Mohamed, the rheumatology registrar, Dr Peter Youssef, the then intern, Dr Mark Sadler and the orthopaedic registrar, Dr John Negrine.

36 The hospital records for that day that the plaintiff was admitted to hospital include an entry by a doctor named Dr Hunt which, as best as I can decipher, reads:


          “13/11 HUNT
          S/B Dr Tyer ..… W… improving. ROM still limited. Ph ..… clips to stay. D/C for clinic on Wednesday … RO Clips if medical team happy.”

37 According to the plaintiff, that doctor returned her tablets with the exception of the aspirin and handed her an appointment card detailing the next appointment with Dr Tyer. The notes do not shed any light on what the plaintiff was told in relation to taking her current medication. Dr Hunt is not a doctor that has been identified as being involved in the plaintiff’s care during her stay in hospital. At this stage his whereabouts are unknown.

38 The next entry in the hospital notes reads:

          “Nursing 13.11.92 09.20. Appointment in OPD for RO clips made for Wed 18.11.92 1400 – (signed) L Sullivan RN.”

39 As Dr Kendall in his report dated 7 July 2002 points out it is impossible for anyone to say what control of the medical (ie non-surgical) aspects of postoperative treatment would have been closely in Dr Tyer’s own hands, or alternatively would have been left to his registrar and RMO. Broadly speaking, the better they perform, the less direct involvement by the surgeon or physician is required. It is not known what the nature of the relationship between Dr Tyer on the one hand and his registrar and RMO on the other hand was. Dr Tyer has died. Further Dr Tyler treated the plaintiff from about 1965 onwards so had developed a doctor/patient relationship over many many years. His widow, Ms Gale Abroon has searched her late husband’s medical records and could not find any records pertaining to the plaintiff.

40 Dr Tong states that he remembers the plaintiff and recalls seeing her between approximately 1990 and 1995. He does not recall the plaintiff being under any mental or physical incapacity which would have prevented her from understanding or communicating with him. He believes she understood the medical advice and treatment which he gave to her. He recalls that the plaintiff may have attended his appointments with a companion, however it was not so that the companion could explain medical advice to her. He communicated directly with the plaintiff.

41 Dr Negrine, a Registrar at Rachael Forster Hospital whilst the plaintiff was operated on, has advised that he has no recollection of the plaintiff. Dr Negrine informed the second defendant that he may have never seen the patient because the surgical team was split in two and according to the records the patient’s surgery was assisted by Dr Ian Incoll. Dr Incoll has no recollection of the plaintiff. With reference to the hospital notes, he states that he was the assisting surgeon at her right knee replacement on 2nd November 1992. He participated in her pre- and post-operative care during her admission, in the role of a Junior Orthopaedic Registrar. He has no personal recollection of the treatment provided to Mrs Smith.

42 I am satisfied there is significant prejudice to the defendant in preparing its case for trial primarily arising out of the fact that Dr Tyer died on 2 July 1995. The whereabouts of Dr Hunt are unknown. The first defendant is unable to take instructions from the medical practitioner whose treatment of the patient lies at the core of the alleged cause of action, nor can evidence be adduced concerning instructions given by Dr Tyer to hospital staff concerning the treatment of the plaintiff, including advice and post operative care. The relationship between Dr Tyer and the doctors employed by the hospital is not known, and this lack of evidence affects both defendants. The importance of the interplay of relationships between the doctor and the hospital was referred to by Dr Kendall and cannot now be ascertained.


      The time at which the injury became known to plaintiff - s 60E(c)

43 The plaintiff was aware that she had suffered an injury shortly after the stroke occurred on 11 November 1992 and was admitted to Lidcombe Hospital.


      Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant’s act or omission and extent of plaintiff’s injury or loss - s 60E(d), (e) and (h)

44 It took some years for the plaintiff to become aware of the nature and extent of the plaintiff’s injury from the 11 November 1992 stroke.

45 The plaintiff first became aware of the connection between her injury and the defendants’ act or omission in early 1998 when she visited Dr Wilson. However at this hearing, these acts or omissions became irrelevant and even at the hearing the plaintiff never gave evidence that she was now aware that the defendants should have told her to resume aspirin after discharge from hospital.


      Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f)

46 There is no conduct by the defendants which induced the plaintiff to delay bringing action.


      Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g)

47 After the plaintiff saw her solicitor, medical reports were obtained but proceedings were not commenced until November 2000. It is my view that having regard to the circumstances of the case the defendants are significantly prejudiced and will not be able to obtain a fair trial. It is not just and reasonable to extend the limitation period. The plaintiff fails in her application under ss 60C & E of the Act.


      Subdivision (3)

48 The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990 and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action:

          “…if an application for such order is made within:
              (a) the period of three years referred to in s 60I; or
              (b) the period of three years commencing 1 September 1990.”

49 The application to extend time was made on 9 November 2000 which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be “within the period of three years referred to in s 60I”.

50 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such a period as it determines”.

51 The relevant provisions of s 60I are as follows:

          “(1) A court may not make an order under s 60G or 60H unless it is satisfied that:
              (a) the plaintiff:
                  (i) did not know that personal injury had been suffered; or
                  (ii) was unaware of the nature or extent of personal injury suffered; or
                  (iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
                  at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

              (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”

52 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:


      (1) As at 11 November 1996 (the expiration of the relevant limitation period she was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

      (2) That she did not become aware of that or those or she ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to her) earlier than 9 November 1997.

53 However as previously stated time was suspended from 11 November 1992 until 11 November 1993.

54 The practical effect is to require the plaintiff to identify specifically what fact or facts she claims not to have known as at 11 November 1996, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I (1)(a); and to show by (evidence) the date on which she acquired knowledge thereof (being a date later than 9 November 2000); or to show that that fact was or those facts were still unknown to her on that date.

55 Counsel indicated that the plaintiff relied on s 60I(1) (a)(iii)


      (iii) Whether the plaintiff was unaware of the connection between personal injury and the defendant’s act or omission

56 Section 60I (1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. The acts or omissions referred to in s 60I (1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, will be found in the plaintiff’s particulars of negligence. - Drayton Coal Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). The words “become aware” means that the plaintiff must have knowledge and awareness of the fact that such a statement was given – Deming No 456 Pty Limited v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 151.

57 The plaintiff submitted that she was unaware of the connection between the personal injury and the defendant’s acts or omissions until early 1998 when the possibility of negligence in her treatment at Rachel Forster Hospital in 1992 was raised with her for the first time. In early 1998, the plaintiff and Mr Carr visited Dr Wilson who explained how he believed her stroke had happened, using a model of a human heart. He said words to the effect:

          “The stroke was caused by a blood clot. Possibly the clot moved away from your heart to the brain.”

58 Mr Carr said to the effect:

          “Dr Tyer said there was a heart irregularity during the operation. Lorraine had stopped taking the heart medication.”

59 Dr Wilson replied to the effect:

          “It could have been given in a drip.”

60 As previously stated the plaintiff did not give any evidence as to when and if she became aware of the contents of Dr Kendall’s most recent medical report and whether she was aware that the failure to take aspirin post discharge caused her stroke. Hence this knowledge does not form any part of a viable cause of action against the defendants.

61 I am not satisfied on the evidence that the plaintiff has become aware of the connection between her personal injury and the defendant’s acts or omissions and does not pass this threshold requirement. Thus the plaintiff does not satisfy the requirements of s 60I(1)(a)(iii).

62 However, in case I am wrong in relation to s 60I(a)(iii). I turn to consider whether it is just and reasonable to extend the limitation period.


      Just and reasonable

63 For reasons given earlier I consider that the plaintiff has a real case to advance in relation to whether she was instructed to take aspirin post discharge. For the reasons outlined earlier and in particular the death of Dr Tyer and the whereabouts of Dr Hunt being unknown, I consider that the defendants will suffer significant prejudice. The defendants will not be able to obtain a fair trial. It is not just and reasonable to grant an extension of time pursuant to ss 60G & I of the Act. The plaintiff’s application fails.

64 Normally costs should follow the event. The plaintiff should pay the defendant’s costs.

65 The orders I make are:


      (1) The plaintiff’s notice of motion filed 9 November 2000 is dismissed.

      (2) The plaintiff is to pay the defendants’ costs as agreed or assessed.
      **********
Last Modified: 07/29/2002
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Cases Cited

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Statutory Material Cited

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A v City of Swan [No 5] [2010] WASC 204
A v City of Swan [No 5] [2010] WASC 204
Holt v Wynter [2000] NSWCA 143