Taylor v Brisbane South Regional Health Authority

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IN THE COURT OF APPEAL	[1995] QCA 093
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

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.
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