Taylor v Brisbane South Regional Health Authority

[1995] QCA 338

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 28 of 1995

Brisbane

[Taylor v. Brisbane South Regional Health Authority]

BETWEEN:

SHARON ANNETTE TAYLOR

Appellant

AND:

BRISBANE SOUTH REGIONAL HEALTH AUTHORITY

Respondent

Fitzgerald P.
Davies J.A.

Ambrose J.

Judgment delivered 15/08/1995

Joint reasons for judgment by Davies J.A. and Ambrose J.; separate concurring reasons by Fitzgerald

P.

APPEAL ALLOWED WITH COSTS.

CATCHWORDS:	LIMITATION OF ACTIONS: s.31(2) Limitation of Actions Act 1974; whether a discretion exists to refuse to extend time notwithstanding satisfaction of paras.(a) and (b) of s.31(2); factors to consider in determining whether to refuse application.
Counsel:	Mr. D. Rangiah for the appellant Mr. P. A. Keane Q.C., with him Mr. P. A. Freeburn for the respondent
Solicitors:	Paul Richards & Associates for the appellant Minter Ellison Morris Fletcher for the respondent

Hearing Date: 20 July 1995

IN THE COURT OF APPEAL	[1995] QCA 338
SUPREME COURT OF QUEENSLAND	Appeal No. 28 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Ambrose J.

[Taylor v. Brisbane South Regional Health Authority]

BETWEEN:

SHARON ANNETTE TAYLOR

(Plaintiff) Appellant

AND:

BRISBANE SOUTH REGIONAL HEALTH AUTHORITY

(Defendant) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 15/08/1995

The circumstances giving rise to this appeal are generally set out in the reasons for judgment of Davies

J.A. and Ambrose J., but I propose to add a little by way of elaboration. However, I should first say

something of my understanding of the operation of sub-s. 31(2) of the Limitation of Actions Act 1974.

The respondent accepted that the appellant had satisfied the requirements of paragraphs (a) and (b) of

that provision; that being so, the appellant submitted that she was entitled to an order extending the

period of limitation for her action against the respondent without reference to any other considerations; the respondent, on the other hand, argued that such an order could only be made if the appellant

established that the respondent would not be prejudiced by the lapse of time since the appellant’s cause

of action arose, or perhaps if she established some other unspecified matter which would justify the

exercise of the court’s power in her favour.

The foundation of the respondent’s argument was that, by sub-s. 31(2) of the Limitation of Actions Act,

the court “may order” that the period of limitation be extended; this, it was said, indicated that the power

is discretionary (once the statutory pre-conditions were satisfied), and, since the discretion is expressed

as a power to make, not refuse, an order, it was for the appellant to demonstrate why the discretion

should be exercised in her favour.

Provision is made in the Acts Interpretation Act 1954 with respect to the use of the word “may” and

the grant of power in permissive terms: see sub-ss. 23(1) and 32CA(1). Further, the principles

governing the exercise of a power given to a court in such terms have been frequently discussed: see,

for example, Lamb v. Moss (1983) 49 A.L.R. 533, 548ff. The other members of the Court consider

that a court has a discretion whether to grant or refuse an extension of the period of limitation

notwithstanding that it is satisfied as to the matters contained in paras. (a) and (b) of sub-s. 31(2) of the

Limitation of Actions Act, and I am content to proceed on that basis. However, mere prejudice to an

intended defendant though the delay which has occurred during a period when “a material fact of a

decisive character relating to the right of action was not within the means of knowledge of the applicant”

cannot necessitate the dismissal of an application for an extension of the period of limitation; to import

such a notion would be to rewrite the section, especially since a presumption of prejudice through delay forms part of the policy justification behind statutes of limitation (as the respondent submitted in para.

8 of “Further Written Submissions” supplied to this Court after the hearing). An applicant for an order

extending the period of limitation could not ordinarily establish that the intended defendant was not

prejudiced by the delay between the time when the cause of action arose and the time when the

applicant acquired means of knowledge of the “material fact of a decisive character” on which the

application is based, and I do not think he or she is required to do so; further, I cannot identify any other

matter which an applicant must prove to obtain the order sought.

Other policy factors underlying statutes of limitation to which the respondent referred were the public

interest in finality of disputes, the protection of prospective defendants against “stale demands”, the

unfairness of such demands associated with the consequences which flow from the lapse of time, the

desirability that a person who does not sue promptly should lose his or her rights, etc. However, none

of these matters seems to me of particular significance. There are also considerations which favour

prospective plaintiffs who, through no fault of their own, have been unaware of their rights. The policy

choice or balance between these competing considerations is not left to the court for decision on a case-

by-case basis, but has been made by the legislature and is contained in the terms of the Limitation of

Actions Act. The Court’s task is to give effect to the statutory policy by implementing the legislation

according to its correct construction. That seems to me to leave the court with the standard judicial

discretion, i.e., to do what is just and equitable in all the material circumstances.

Even so, the comparison or balancing of competing factors is more difficult than superficially appears,

since the critical consideration, i.e., whether or not an applicant for an extension of the period of limitation has a good cause of action will often, perhaps usually, be unknown at the time when the

discretion falls to be exercised.
On the face of the appellant’s material, she has a good cause of action (apart from the period of

limitation); the respondent does not seem to dispute that she is entitled to succeed if her account of her

discussion with Dr Chang is correct or, even if she is incorrect as to what was said, if her diagnosis at

the time was “Pelvic Inflammatory Disease”. There is also the possibility - no more at this stage - that,

even if her diagnosis was, as the respondent contends, menorrhagia/dysmenorrhoea, a hysterectomy

was not an appropriate procedure at the appellant’s stage in life, at least without extensive counselling.

As against that, as the other members of the Court point out, the consequences of delay to the

respondent seem little different now from the position which would have existed towards the end of the

statutory limitation period. Further, I do not consider that the primary judge was correct in concluding

that a fair trial was impossible or improbable. On the contrary, as the respondent contended in another

(inconsistent) part of its argument, in support of a proposition that the appellant’s version of her

discussion with Dr Chang was unlikely to be believed, the lapse of time will make it more difficult for

the appellant to have her version accepted.

In my opinion, therefore, the discretion miscarried and an order extending the period of limitation should

have been made.

The appeal should be allowed, and an order made extending the period of limitation to 31 August 1995.

The respondent should pay the appellant’s taxed costs of the proceedings below and in this Court,

including any reserved costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 28 of 1995

Brisbane

Before Fitzgerald P.
Davies J.A.
Ambrose J.

[Taylor v. Brisbane South Regional Health Authority]

BETWEEN:

SHARON ANNETTE TAYLOR

Appellant

AND:

BRISBANE SOUTH REGIONAL HEALTH AUTHORITY

Respondent

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND AMBROSE J.

Judgment delivered the 15th day of August 1995

This is an appeal from an order of a District Court Judge dismissing an application pursuant to

s.31(2) of the Limitation of Actions Act 1974 to enable the appellant to bring an action for negligence

against the respondent. That sub-section provides:

"Where on application to a court by a person claiming to have a right of action to which
this section applies, it appears to the court -

(a)         that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b)        that there is evidence to establish the right of action apart from a defence found on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly."

It was conceded by the respondent that the appellant had established each of the requirements

in paras.(a) and (b) of sub-s.(2). The questions before this Court were whether, notwithstanding

satisfaction of those two requirements the Court had a discretion to refuse to extend time; and, if so,

whether the learned primary Judge was wrong in exercising that discretion in the way in which he did.

On 16 April 1979 the appellant, who was then aged only 20, attended at the Casualty

Department of the Princess Alexandra Hospital complaining of severe period pain and heavy bleeding.

Two days later a laparoscopy was performed and on 29 May that year she consulted Dr. Chang a

gynaecologist at the hospital. As it now emerges there is a clear conflict between what the appellant

says Dr. Chang told her and Dr. Chang's apparently contemporaneous notes of that conversation. She

swears that he told her that she was bleeding internally and needed a hysterectomy operation as soon

as possible; that that was the only way to stop the pain which she was suffering. He also told her, she

says, that she might die if she did not have this operation. Dr. Chang's notes, on the other hand indicate

that there was a discussion between them in which he referred to three possibilities; doing nothing,

hormonal therapy or a hysterectomy. The notes also indicate that she preferred a hysterectomy after

discussion in relation to risks. The appellant's evidence is that she was never informed of any

alternatives to hysterectomy and that she would not have had a hysterectomy had she not been told that

her condition was life-threatening without it. A hysterectomy operation was performed on her on 5 June

1979 and she says that she has suffered pain ever since.

In an affidavit filed on behalf of the respondent, Ms. Feeney, a solicitor employed by the respondent's solicitors, says that the hospital records of the Princess Alexandra Hospital show that Dr. Chang was a Professor of Gynaecology at the University of Queensland who undertook clinical duties

at Princess Alexandra Hospital in 1979. She says that her subsequent inquiries have revealed that Dr.

Chang now resides in HongKong. She adds that her attempts to contact Dr. Chang have been

unsuccessful. She does not reveal what those attempts were.

On those facts the learned primary Judge held that, assuming that the appellant had satisfied the

requirements of sub-s.(2)(a) and (b) there was still a general discretion vested in him to extend time or

not as justice might require. His Honour expressed the view that it was unlikely that Dr. Chang, even

if located, would have any recollection of the above conversation. He concluded that the lapse of time

between the allegedly negligent conduct and the action, if it were commenced at the time of the

application before him, would render a fair trial of the issues highly improbable and, for that reason,

dismissed the application.

The use of the word "may" in the first line of the last paragraph of sub-s.(2) supports the learned

primary Judge's conclusion and the respondent's contention that a court has a discretion to refuse an

extension of the period of limitation notwithstanding that it is satisfied as to the matters contained in

paras.(a) and (b) of that sub-section. Such a discretion was held to exist in Waters v. McUean (C.A.

No. 55 of 1978, 30 May 1978 unreported) and assumed to exist in Castlemaine Perkins Limited v.

McPhee [1979] Qd.R. 469 at 471, 472. See also Kosky v. Trustees of the Sisters of Charity [1982]

V.R. 961 at 968. We would also conclude that such a discretion exists under the sub-section. For

the reasons appearing below it is unnecessary and undesirable in this case to attempt to elucidate the

criteria upon which such a discretion should be exercised.

The basis upon which the learned primary Judge exercised his discretion against the appellant

was the perceived unfairness, as against the respondent, of a trial nearly 16 years after the conversation

and operation, caused by the unlikelihood that Dr. Chang would now have any recollection of that

conversation even if he were located.

It may be accepted that prejudice to the defendant, making a fair trial highly improbable, may

justify the refusal of an extension of the limitation period under s.31(2). However, in order to determine

whether the defendant would suffer prejudice in consequence of an order extending time, what must be

compared is an action instituted within time, but perhaps towards the end of the period of limitation, and

one instituted now. It may be thought to be unlikely that, say, two and a half years after the above

conversation, and many operations later, Dr. Chang would have had any independent recollection of

it. In any event there was no evidence from which it could be inferred that, by reason of the expiration

of time between the end of the limitation period and the date of the application before the learned

primary Judge, the defendant suffered any prejudice which would have decreased the likelihood, as

against it, of a fair trial. The respondent accepted the evidentiary onus on this question.

Whilst it appeared from its oral submissions that it accepted the evidentiary onus on this

question, the respondent, in written submissions made after the conclusion of the hearing of this appeal,

submitted that the onus on this question lay on the appellant.

The scheme of the section, in our view, is that, upon compliance with paras.(a) and (b), the

applicant is entitled to an extension of time unless there is some matter justifying the exercise of a

discretion against the granting of an extension. Once that is accepted, the evidentiary onus on this

question is plainly on the respondent and, for the reasons we have given, was not discharged here.

The learned primary Judge, in our view applied the wrong test. He sought to compare a trial

at or shortly after the above conversation and operation with one occurring in consequence of an action

instituted now. The application of the correct test requires a conclusion that the application should have

been allowed. The appeal should be allowed with costs.