Tran v Au-Yong; Tran v Au
[2008] NSWSC 396
•2 May 2008
CITATION: Tran v Au-Yong; Tran v Au [2008] NSWSC 396 HEARING DATE(S): 21 April 2008
JUDGMENT DATE :
2 May 2008JURISDICTION: Common Law JUDGMENT OF: Harrison AsJ DECISION: (1) In proceedings 20297/2007 the notice of motion filed 4 September 2007 is dismissed.
(2) In proceedings 20361/2007 the notice of motion filed 22 April 2008 is dismissed.
(3) The plaintiff is to pay the defendants’ costs in both proceedings as agreed or assessed.CATCHWORDS: EXTENSIONS of limitation period - ss 60C & 60E LEGISLATION CITED: Limitation Act 1969
Victims Compensation Act 1996
Workers Compensation Act 1987CATEGORY: Procedural and other rulings CASES CITED: BHP Steel (AIS) Pty Limited v Giudice (& Ors) (Unreported, NSWCA, 7 March 1997)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1
Conway v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60
Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195
Drayton Coal Pty Limited v Drain (Unreported, NSWCA, 22 August 1995)
F J Walker v Webber (Unreported, NSWCA, 16 November 1999)
Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143
Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60
McLean v Sydney Water Corporation [2001] NSWCA 122
R v Wingo (Unreported, WACCA, 2 May 1990)PARTIES: In SC 20297/2007
Thong Quoc Tran (Plaintiff)
Dr Rosalind Au-Yong (First Defendant)
Dr Nicholas Doong (Second Defendant)
Sydney South West Area Health Service trading as Royal Prince Alfred Hospital (Third Defendant)In SC20361/2007
Thong Quoc Tran ( Plaintiff)
Dr Kenneth Au (Defendant)FILE NUMBER(S): SC 20297/2007; 20361/2007 COUNSEL: In 20297/2007
In 20361/2007
E G Romaniuk (Plaintiff)
I Butcher (First and Second Defendants)
J Downing (Third Defendant)
E G Romaniuk (Plaintiff)
I Butcher (Defendant)SOLICITORS: In 20297/2007
In 20361/2007
Edwards Michael Lawyers (Plaintiff)
Paul Tsaousidis (First and Second Defendants)
Frances Allpress (Third Defendant)
Edwards Michael Laywers (Plaintiff)
Paul Tsaousidis (Defendant)
In 20297/2007
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LISTASSOCIATE JUSTICE HARRISON
FRIDAY, 2 MAY 2008
JUDGMENT (Extensions of limitation period20297/2007 - THONG QUOC TRAN v DR ROSALIND AU-YONG
20361/2007 - THONG QUOC TRAN v DR KENNETH AU & ANOR
– ss 60C & E)
1 HER HONOUR: By notices of motion filed in both proceedings the plaintiff seeks to extend the time in which to commence proceedings as against the defendants pursuant to ss 60C and 60E of the Limitation Act 1969 in relation to medical advice and treatment he received following an assault that occurred on 5 September 1999. The defendants oppose the orders sought.
2 The plaintiff in both proceedings is Thong Quoc Tran. In proceedings 20297/2007 (the first proceedings) the first defendant is Dr Rosalind Au-Yong. The second defendant is Dr Nicholas Doong. The third defendant is Sydney South West Area Health Service trading as Royal Prince Alfred Hospital (the hospital).
3 In proceedings 20361/2007 the first defendant is Dr Kenneth Au (Dr Au). Consent orders have been entered in relation to the second defendant. Dr Au is now the sole defendant in proceedings 20361/2007 (the second proceedings).
4 The plaintiff relied on his affidavit sworn 7 January 2008 and that of his solicitor, Lisa Powell sworn 9 January 2008. The hospital relied on an affidavit of Judith Dixon sworn 19 March 2008.
5 The plaintiff gave evidence and was cross examined largely with the assistance of an interpreter. When he was asked to read a document, the plaintiff had to use the assistance of a magnifying glass. As a result of being assaulted (referred to later in this judgment in more detail) the plaintiff suffers from cognitive defects. Dr Paul Teychenne consultant neurologist found after psychometric testing that the plaintiff has short terms memory loss deficits. He had problems finding words that is he appeared to have an expressive dysphasia. He was irritable and easily upset. According to Dr Teychenne the plaintiff had poor verbal memory compared to his general intelligence and he had evidence of a recent memory deficit and had difficulty in recalling information after a time lapse of several minutes. Dr Teychenne concluded that it appeared that the plaintiff had a specific deficit in memory function and also an impairment in his ability to concentrate. Dr Teychenne considered that the plaintiff had a 35 percent deficit in cerebral function [report 17/09/2002 – Bundle 32].
6 When the plaintiff was cross examined, his answers were not necessarily responsive to the question that he had been asked. Because of the plaintiff’s brain impairment it was difficult for me to assess the plaintiff’s credibility. The defendants’ counsel submitted that the plaintiff, aside from being an advocate for his case, was not entirely truthful. In cross examination, surprisingly, the plaintiff agreed that he was trying to argue his case as opposed to telling this Court the truth (t 12.23). I accept that at times the plaintiff’s evidence was unreliable. The reliability of the plaintiff’s evidence so far as it relates to important topics will be canvassed later in this judgment.
Background
7 The plaintiff was born on 13 January 1964 in Vietnam. His is one of eight siblings, six of whom reside in Sydney, one resides in Vietnam and one resides in the United States of America.
8 In November 1979 the plaintiff and his family immigrated to Australia and established themselves in Sydney. In about 1982 the plaintiff became an Australian citizen. He is married.
9 In 1992 the plaintiff consulted a solicitor and commenced an unlitigated claim against the manager of a strata unit. He had walked into a transparent glass door and suffered injury to his face. His then girlfriend took him to a solicitor. He does not recall that he was advised in relation to any limitation period in which he had to commence proceedings. He received $15,000 by way of settlement. In 1993, the plaintiff was aware that his youngest brother had commenced a court case for personal injury (t 42.50).
10 Prior to the assault the plaintiff says that he was fit and healthy, had no problems with his vision and was not on any medication.
The assault
11 On 5 September 1999 at about 11.30 pm, the plaintiff was driving a taxi when his was robbed and beaten. He was hit around his head. He may have lost consciousness or blacked out for a few seconds. On the following day, he reported the incident to the police at Auburn Police Station.
12 Between 6 September 1999 and 27 October 1999, the plaintiff at various times consulted Drs Rosalind Au-Yong, Nicholas Doong, and Kenneth Au.
The attendance at Royal Prince Alfred hospital on 27 October 1999
13 On 27 October 1999 at 11.23 am the plaintiff attended the emergency department of Royal Prince Alfred hospital (the hospital). According to the hospital records the plaintiff was triaged nine minutes after arrival and assigned a rating of 5 (least urgent). Ms Judith Dixon the Senior Unit Manager in the Emergency Department saw the plaintiff in triage. She says that without the benefit of the emergency department case history notes for Mr Tran, she does not have any independent recollection of him at all. Even with the benefit of having read the case history notes, she has no actual recollection of seeing Mr Tran on 27 October 1999 or attending on him in the emergency department. She has read the medical records of Mr Tran and noted that she had made entries in the records and confirmed that the entries that she made and relied on those entries as to what had occurred.
14 In the hospital records, under the heading “nursing assessment” reads “Assaulted two months ago. Continuing headaches. Has had two CT scans. Last 25/10. Assaulted whilst driving taxi no counselling provided.” Ms Dixon confirmed that her signature appeared next to the entry.
15 Under the heading “clinical assessment” Ms Dixon wrote additional information that states, “LMO (Local medical officer) contacted Dr Au. Dr Lo neurology appt. Mr Tran reassessed has two CT scans that are normal. His LMO Dr Au had made neurology at appt for 4/11/99. Counselling being organised. Will attend LMO if further problems.” A print out shows that the plaintiff left the hospital at noon and his departure status was classified as “departed. Did not wait (DNW).” There is another entry under the heading “primary diagnosis” also stating that Mr Tran did not wait. The author of this entry is not known.
16 On 1 November 1999 Mr Tran consulted Dr Au who referred him to see a neurologist, Dr Jeremy, later that day. Dr Jeremy arranged for Mr Tran to be admitted to Westmead hospital the following day. On 2 November 1999 an urgent CT brain scan was performed and revealed there was a bleed in the plaintiff’s brain.
17 On 2 November 1999, an urgent neurosurgical evacuation of the subdural haematoma was performed. After the operation the plaintiff became aware that the vision in his left eye was substantially reduced and that he had reduced hearing and tinnitus in his left ear. Subsequent craniotomy revealed increased intracranial pressure. After the operation the plaintiff’s headaches, dizziness and nausea went away. The loss of vision in the left eye persisted despite surgical and other treatment and was considered to be permanent. Mr Tran also had an increasing impairment of vision in his right eye.
The first proceedings
The plaintiff’s claim as against the first defendant (Dr Au-Yong)
18 By statement of claim filed in the first proceedings on 4 September 2007, the plaintiff pleads that during the period from 6 September 1999 to 28 October 1999 he consulted the first defendant for medical services in relation to his then symptoms and health.
19 On 6 September 1999 the plaintiff presented to Dr Au-Yong with a head injury as a result of an assault on 5 September 1999. He complained of headache when moving his head and presented with bruises to the face and haemoptysis. On 8 September 1999, the plaintiff presented with headache and nose pain. On 13 September and 17 September 1999, he presented with continuing headaches and was referred for a CT scan which was reported as normal. On 25 September 1999, he continued to complain of severe headaches. On 1 October 1999 he presented with continuing headaches and a further CT scan was recommended. On 9 October 1999 and 13 October 1999, the plaintiff attended with continuing headaches and it was noted that no CT scan had been conducted; no further steps were taken to arrange a CT scan. On 28 October 1999 the plaintiff presented with headache and nausea and Dr Au-Yong prescribed Deptran and Maxolon.
20 The plaintiff alleges that Dr Au-Yong in providing medical services failed to correctly diagnose his condition, failed to carry out any or adequate examinations and investigation and failed to refer him to a hospital, clinic or specialist for further examination, investigation and treatment of his then symptoms and health.
The plaintiff’s first claim as against the second defendant (Dr Doong)
21 On 27 September 1999, the plaintiff presented with chronic severe headache. On 11, 19 and 22 October 1999 he presented with symptoms including severe headache, vomiting and blurred vision. The plaintiff alleges that in proving the medical services Dr Doong failed to correctly diagnose his condition, failed to carry out any or adequate investigations and examination and failed to refer him to a hospital, clinic or specialist for further examination, investigation and treatment of his then symptoms and health.
The plaintiff’s claim as against the third defendant (the hospital)
22 On about 27 October 1999, the plaintiff consulted the emergency department of the hospital for medical services in relation to his then symptoms and health. He presented with an/or complained of symptoms including continuing headaches for a period of two months following an assault. The plaintiff was not admitted to the hospital and it was suggested that he consult with his general practitioner in the event of continuing problems.
23 The plaintiff alleges that the hospital in providing the medical services failed to correctly diagnose his condition, failed to carry out any or adequate investigations and examination and failed to refer him to a hospital, clinic or specialist for further examination, investigation and treatment of his then symptoms and health.
24 The particulars of negligence as against the defendants are firstly, failed to correctly diagnose the plaintiff’s condition; secondly, failed to carry out any or adequate investigations and examination of the plaintiff’s then symptoms and health as to lead to the diagnosis of the plaintiff’s condition; thirdly, failed to refer the plaintiff to a hospital, clinic or other more specialist practitioner to undergo further investigations; fourthly, failed to refer the plaintiff to a hospital, clinic or other more specialist practitioner to obtain immediate and earlier medical services to correctly diagnose the plaintiff’s medical condition; fifthly, failed to treat the plaintiff adequately or at all; and sixthly, failed to exercise reasonable care in the provision of the medical services. The plaintiff pleads that as a result of the defendants negligence he has suffered injury, loss and damage.
The second proceedings
25 By statement of claim filed 4 September 2007, the plaintiff pleads that on about 25 October 1999 until 1 November 1999 he consulted Dr Au for medical services in relation to his then symptoms and health.
26 On 25 October 1999 the plaintiff presented with symptoms and complaints including chronic severe headaches, dizziness, nausea, tinnitus, deterioration in vision and difficulty sleeping in the context of his sustaining a head injury in an assault two months prior. On 1 November 1999 the plaintiff presented with symptoms and complaints including severe nausea and vomiting, increased levels of headache and dizziness and symptoms indicative of papilloedema.
27 The plaintiff alleges that in proving the medical services Dr Au failed to correctly diagnose his condition, failed to carry out any or adequate examination and investigation and failed to refer him to a hospital, clinic or specialist for further examination, investigation and treatment of his then symptoms and health.
28 The particulars of negligence are that Dr Au firstly, failed to correctly diagnose the plaintiff’s condition; secondly, failed to carry out any or adequate investigations and examination of the plaintiff’s then symptoms and health as to lead to the diagnosis of the plaintiff’s condition; thirdly, failed to refer the plaintiff to a hospital, clinic or other more specialist practitioner to undergo further investigations; fourthly, failed to refer the plaintiff to a hospital, clinic or other more specialist practitioner to obtain immediate and earlier medical services to correctly diagnose the plaintiff’s medical condition; fifthly, failed to treat the plaintiff adequately or at all; and sixthly, failed to exercise reasonable care in the provision of the medical services.
29 On about 2 November 1999, the plaintiff was diagnosed with subdural haematoma and he underwent a burr hole drainage of the subdural haematoma.
30 As against the defendants in both proceedings, the plaintiff alleges that as a result of the failure to properly diagnose his condition it was left untreated and he suffered deterioration in his vision. For the purposes of this application, there are expert reports of Drs Fisher and Raftos which provide support for the plaintiff’s cliam that these doctors and the hospital advice and/or treatment was negligent. The plaintiff has a loss of vision in his left eye of 100 percent and loss of 60 percent of vision in his right eye.
The Law
31 Section 60A of the Limitation Act 1969 (the Act) provides a procedure for a five year (maximum) extension of the three year limitation period for personal injury cases.
32 The plaintiff relies on ss 60C and 60E of the Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in many cases, such as Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (Unreported, NSWCA, 7 March 1997); Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143; McLean v Sydney Water Corporation [2001] NSWCA 122; and more recently in Conway v Scotts Refrigerated Freightways Pty Ltd [2008] NSWCA 60 which provides a summary of prior decisions. 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.
33 Section 60C applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury: s 60C(1). Subsection (2) provides:
“(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.”
34 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;
(h) the extent of the plaintiff’s injury or loss.”(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;
35 In Conroy v Scotts Refrigerated Freightways the New South Wales Court of Appeal stated (at [91]-[93] per McColl JA):
“91 …I accept that in focusing on the prejudice to a defendant arising from the delay by reason of the fact that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available, s 60E(1)(b) looks to the period between the expiration of the limitation period and the time of the extension application. However the governing requirement (s 60(1)) is to have regard to “all the circumstances of the case”. The attention drawn in s 60(1)(a) to the “length of and reasons for the delay” requires the court to examine the period which has elapsed since the cause of action accrued. This approach takes into account the rationales for limitation periods identified in Brisbane South which focus on the time which has elapsed since the cause of action accrued, rather than since the limitation period expired.
93 In Schering-Plough Pty Ltd v Page (at [15]) Sheller JA (with whom Meagher JA agreed) after referring with approval to Mason P’s statement in Zegarac concerning the significance of proof prejudice, added that the Court should also be mindful of the matters referred to in Gleeson CJ’s judgment in Salido v Nominal Defendant (1993) 32 NSWLR 524 (at 532-3), observing (at [16]) that ss 60C and 60E spelt out expressly matters which to some extent, at least, were embraced by the Chief Justice’s remarks. He said:92 In considering a s 60C application, the court is required to take the s 60E factors into account to the extent that each is relevant to the circumstances of the case: Zegarac (at 197). Thus Mason P (at 199) held that “proof of prejudice, even ‘significant’ prejudice does not dictate the rejection of an application to extend time” and that while “[e]vidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case … [i]n weighing prejudice, its impact upon a fair trial is the primary focus”. Priestley JA (at 221) was also of the view that the court “had power, in the proper exercise of its discretion in a particular case, to order an extension of time, notwithstanding either the presumptive or proved prejudice to the defendant which would be caused by that extension”.
- “15…The discretion conferred upon the Court is to be exercised judicially in a manner that furthers the purposes of the statutory context, the immediate purpose, as with any limitation period, being to protect defendants against the injustice of stale claims and to promote forensic diligence. Bearing those matters in mind, the question is whether in the circumstances of each individual case the applicant for leave has demonstrated that it is just and reasonable that leave should be granted. The diligence or lack of diligence shown by a plaintiff or a plaintiff’s representatives in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff’s delay will also be material. The effect, if any, of the delay upon the defendant’s ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.”
The length and reasons for delay - s 60E(a)
36 The causes of action accrued in January 2000 at the latest. The limitation period expired in January 2003. The applications seeking the extension of time both were filed on 4 September 2007 just less than five years out of time and nearly eight years after the cause of action arose.
37 The plaintiff’s explanation for delay is that his former solicitors did not advise him that he could take proceedings against the doctors and the hospital for medical negligence. Hence, he did not know that he had an action against the doctors and the hospital until 2007.
38 Below I have summarised the advice the plaintiff received from both his former solicitors and current solicitors.
The former solicitors - Brydens
39 In February 2000, the plaintiff says that he had an initial consultation with a Caucasian male solicitor together with an interpreter at Brydens solicitors. The plaintiff says that aside from when he attended court, he had only one face to face (the conference) with a solicitor and received several phone calls from the firm’s receptionist who spoke to him in his language. There are no solicitor’s file notes of the conference. The plaintiff says that the conference was of one hour’s duration. The plaintiff deposed that he recalled that at that conference he told the solicitor about the damage to his eyesight, the loss of his vision, the circumstances of the assault and about the different doctors that he had seen before his operation at Westmead hospital. He recalled telling the solicitor about the doctors who had treated him and the operation. The plaintiff gave evidence that he could not remember if he told the solicitor that he had been to the emergency department of the hospital.
40 The plaintiff says he relied on the solicitor to bring a claim in respect of what had happened to him. He says that he told the solicitor all the relevant information and he thought Brydens would take legal action on his behalf against the relevant party. The plaintiff says that he told Brydens he had eyesight problems, headache, a tingling in his ears and that these were the problems after the operation. He says that he thought Brydens would know how to handle all the legal issues on his behalf.
41 The plaintiff, in cross examination, stated that he had no idea as against whom he might take legal action. He did not know about the possibility of taking action against the taxi company, nor the person who assaulted him, nor the doctors or the hospital. At no stage did he ask his solicitors against whom he might bring an action. He gave evidence that he did not know and did not care who the solicitors sued so long as they won the case.
42 Later during cross examination, the plaintiff said that he thought the solicitor might take legal action against the taxi company, against the doctors, against the insurance. Anything was a possibility and they were possibilities. He says that from the beginning to the end it was never discussed which party was going to be sued. However, when the plaintiff was shown letters from Brydens referring to a possible victim’s injury claim, he conceded that there was a possibility that at the initial consultation the solicitor may possibly have discussed victim’s injury compensation. The plaintiff said that he did not mention to Brydens that he was upset with the doctors and those types of things because he thought Brydens would have an idea how to take care of his case and that if Brydens were acting for him in that court case then he would be fine (t 21).
43 By letter dated 29 March 2000, Brydens wrote to the plaintiff confirming instructions to act on his behalf and advising that the plaintiff had potential rights pursuant to the Victims Compensation Act 1996 and possibly the Workers Compensation Act 1987. Again, by letter dated 14 April 2000, the solicitors wrote to the plaintiff advising that the plaintiff might be able to bring a claim for victim’s compensation for any losses, which were not covered by the Workers Compensation Act. In 2002 the plaintiff’s workers compensation claim was settled.
44 Between 2002 and 2006, a period of four years, the plaintiff did not seek any further legal advice. In 2007, the plaintiff’s youngest brother suggested that he consult another solicitor and provided him with a list of solicitors.
The current solicitor Ms Lisa Powell
45 On 21 March 2007, the plaintiff attended an initial conference with his current solicitor Ms Powell. This solicitor obtained initial instructions and ascertained that Mr Tran had been involved in an assault on 5 September 1999 and that he had consulted a number of medical practitioners at Royal Prince Alfred and Westmead hospitals.
46 Ms Powell understood, at that stage, that those consultations had taken place in the period from about 6 September 1999 to 24 April 2000. She also understood that Mr Tran was then suffering from significant loss of vision in both eyes, but that the left eye was much worse than the right. She ascertained that Mr Tran’s former solicitor had pursued a claim for workers compensation entitlements pursuant to the relevant statutory scheme. She formed the view that the medical treatment provided to the plaintiff warranted investigation as to whether that medical treatment had been negligent and whether Mr Tran might have a claim against the medical practitioners and the hospital in respect of his current condition.
47 In Ms Powell’s initial conference with Mr Tran she asked Mr Tran if his former solicitor had discussed the quality of the medical treatment provided by the medical practitioners and the hospital. Mr Tran advised Ms Powell to the effect “I have always blamed the Doctors and the Hospital for my situation…I told the Solicitors about that and I left it for them to look after it.”
48 However, during cross examination the plaintiff gave evidence that was inconsistent and at odds with the statement of Ms Powell referred to above. The plaintiff gave evidence that after the operation he felt very upset because he thought that the doctors should have advised him to go for a CT scan once he had a headache. The plaintiff agreed that after the CT scan and the operation (in November 1999) he thought that if the doctors had sorted out his problem a bit earlier he could have avoided having his visual problems and his eyesight would be okay (t 10.3). At (t 10.5-26) the following exchange took place:
“Q. Now, when you went to see Ms Powell you were still feeling angry about the doctors, weren't you?
A. I was very upset, yes.
Q. That was the reason you went to see Ms Powell, wasn't it?
A. Yes.
Q. Because by the time you did this you had had seven years, or so, of poor eyesight?
A. Yes.
Q. And you had always blamed the hospitals and doctors at the hospital for your situation?
A. Yes.
Q. That is the way you had felt all the time since late 1999?Q. When you say you blamed the doctors and hospitals for the situation, mean to say you had always thought that if they had done the right thing for you back in 1999, you could have had better eyesight?
A. Yes.
A. Yes.”
49 The plaintiff was asked that when he went to see his former solicitors, Brydens, whether he felt anger towards the doctors. He was asked this question in various forms seven times and each time he failed to give a responsive answer. Sometimes there was a long pause but no answer. This question was the only one which elicited the long pauses. Eventually he said that when he saw Brydens he did not feel unhappy (t 11.29) and when asked “So this is the situation: in late 1999, having been through the scan, the operation, the improvement in the symptoms and having felt upset with the doctors, you go to Brydens and you just say you no longer feel upset. Is that right?” The plaintiff replied, “Yes” (t 12.15-19). This answer is implausible. It was then that the plaintiff agreed that he was trying to argue his case as opposed to telling the Court the truth.
50 Essentially, what the plaintiff is saying is that he relied on his solicitors to handle all the issues on his behalf and that he did not know and did not care who his solicitors sued so long as they won the case. He says that he never discussed with the former solicitors which party was going to be sued.
51 While I accept the plaintiff has memory problems and, in truth, may not remember whether or not he told his solicitors about being upset with the medical advice and treatment he received so far as his eyesight was concerned, it is my view that by not caring as to who was being sued demonstrates a remarkable lack of diligence. If, as I have found, the plaintiff always blamed the doctors and hospital for the damage to his eyesight, he had an obligation to ensure that he told his solicitors about it. Solicitors cannot act in a vacuum. They act on instructions from the client. Although the plaintiff has continued to be upset about the treatment he received from the doctors and hospital, it took a further four years before he did anything about it.
52 In light of the conflicting and unreliable evidence on this topic, I cannot determine whether or not he told his former solicitors that he blamed the doctors. His evidence on this topic is most unreliable. However, I do find that shortly after the operation the plaintiff has always blamed the doctors and hospital for not requesting a CT scan earlier. Since 2000, the plaintiff has known that if a CT scan had been done earlier his eyesight would have been all right. I do not accept the plaintiff’s evidence that for the period that the plaintiff was consulting Brydens his upset about the doctors and hospital completely dissipated only to be reactivated after 2002.
Extent to which delay caused prejudice - s 60E(b)
53 There is no evidence that had the plaintiff commenced the proceedings within the limitation period that any evidence would have been lost. The doctors’ notes and hospital records are still available. The doctors and the triage nurse at the hospital are also available to give evidence.
54 It is now over eight years since the cause of action arose. I accept that there will be presumptive prejudice of the type referred to in R v Wingo (Unreported, WACCA, 2 May 1990) (which was referred to with approval, by McHugh J, in Brisbane South Regional Health Authority v Taylor). Dr Raftos did not think a nurse was capable of assessing a patient, diagnosing the cause of the headache and working out whether they needed to be assessed in hospital or to make an appointment in several days time without doing a full neurological examination and performing a CT scan. Dr Raftos, a senior specialist in emergency medicine, gave evidence that the apparent agreement, that the plaintiff went to see his local doctor on 4 November 1999, was inappropriate.
55 As previously stated Ms Dixon, the employee of the hospital who interviewed the plaintiff and took notes, no longer has any independent recollection of the plaintiff. She is a critical witness. To some extent she would be able, at trial should there be one, to rely upon her usual practice as it was in 1999. Dr Raftos says that if the plaintiff decided to leave without seeing the doctor, he should have been cautioned to the effect “you have a serious headache, it might be caused by a condition which may cause you to die within 24 hours. If you leave you run the risk” and a notation that this specific warning was given should have been written in the hospital notes. However, in the absence of a specific advice in the notes, Ms Dixon’s recollection becomes very important to the hospital’s case.
56 While on the topic of records, the doctors’ medical records are available. There are medical records used in the plaintiff’s workers compensation proceedings as to the state of his eyesight. The doctors and the triage sister are available to give evidence.
57 If the plaintiff succeeds in establishing breach of duty against the defendants, each defendant would only be liable for the damages caused by him or it. This would involve a consideration of the degree to which the vision could have been salvaged as at the time the plaintiff saw the individual defendant and at the time that he should have undergone a CT scan. Another complication is the apparent failure of the plaintiff to undergo a CT ordered on 1 October 1999. If the damage were permanent at a time before either or each of the defendants became involved, the plaintiff’s case would fail, as there would be no damages on a visual loss awarded against one or more defendant.
58 There is very little reference to the plaintiff complaining of visual difficulty in the doctors’ notes. The plaintiff’s evidence is inconsistent and unreliable. At one point, the plaintiff says the visual problems commenced several weeks before the operation, then he says two to three weeks before the operation, then he says just before the operation. Dr Raftos says that without a clear chronology of the development of the visual problems, in order for him to decide when the visual problems became irreversible he could only make a generalisation (t 36).
The time at which the injury became known to plaintiff - s 60E(c)
59 The plaintiff knew that his serious loss of vision had occurred by January 2000 at the latest.
Time at which nature and extent of the injury became known to plaintiff – s 60E(d)
60 A person can know the nature and extent of his or her injuries even is he or she is ignorant of the final form. It is also uncontroversial that where a person knows the various signs and symptoms of his or her condition and a reasonable person in his or her position would know of the potential for a particular final state, that is sufficient to establish knowledge of nature and extent – see F J Walker v Webber (Unreported, NSWCA, 16 November 1999).
61 The plaintiff was aware of his visual loss soon after the operation in late 1999. He was aware of the fact that he had a permanent loss if not then certainly when he made his workers compensation claim in July 2000. There is no suggestion that after late 1999/early 2000 the plaintiff’s visual problems increased. The plaintiff has become more aware of the problem his lack of vision causes since he married in 2003.
Time at which plaintiff became aware of connection between injury and defendant’s act or omission – s 60E(e)
62 In considering knowledge or ignorance of the relevant connection, the court looks to knowledge or ignorance of acts or omissions, not the legal complexion that can be put upon them – see Drayton Coal Pty Limited v Drain (NSWCA, 22 August 1995, unreported) at 5. From early 2000 the plaintiff’s was of the view that the hospital should have examined and investigated him further so that a CT scan could have been performed, as it ultimately was done at Westmead hospital on 2 November 1999. In 2002 the plaintiff also believed he should have been treated earlier, thus preventing his loss of vision.
63 The hospital submitted that even if it be found that his knowledge of the connection was not complete, it was extensive enough, when coupled with his delay and failure to seek legal advice, that it is not just and reasonable that time be extended – see Drayton Coal v Drain at 6.
Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f)
64 There is no conduct by the defendant which induced the plaintiff to delay bringing action.
Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g)
65 This topic has been outlined earlier in this judgment. Shortly after the assault occurred the plaintiff took legal proceedings against his employer. In 2002 workers compensation proceedings were settled. It was not until March 2007 that the plaintiff sought further legal advice in relation to the doctors, hospital and his lack of vision. Both proceedings were commenced on 4 September 2007; six months after the plaintiff consulted his current solicitor.
Extent of plaintiff’s injury or loss - s 60E(h)
66 The plaintiff has lost 100 percent of vision in his left eye and up to 60 percent of vision in his right eye. The plaintiff has a serious injury which impacts severely on his everyday life and has made him virtually unemployable The plaintiff’s damages will be assessed on the basis of the loss of chance of a better outcome. From any damages awarded a deduction will be made of all workers compensation entitlements, both past and future – see Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60.
67 While I accept that the plaintiff should not be penalised because of his cognitive defects, nevertheless, it is still my view that he did not act with forensic diligence because in 2000 he did not care which parties were sued so long as he won. Now, some eight years later, the doctors and hospital will largely have to rely upon their notes but it is conversations they had with the plaintiff that are of importance. To some extent the doctors and hospital staff can rely upon their usual practice in 1999 but again they will have to rely on their memories. The task of trying to prepare their cases for trial is made more difficult because the plaintiff’s recall of significant events is unreliable. In these circumstances the defendants will not be afforded a fair trial. I have taken the matters referred to in s 60E(a) to (h) into account. I have also taken into account all the circumstances in the case – s 60E(1). It is my view that the plaintiff has not discharged his onus. I am not satisfied that it is just and reasonable to extend the limitation against any of the defendants. The notices of motion are dismissed.
Costs
68 Costs are discretionary. Normally costs follow the event. In both proceedings the plaintiff is to pay the defendants’ costs as agreed or assessed.
The Court orders
(1) In proceedings 20297/2007 the notice of motion filed 4 September 2007 is dismissed.
(3) The plaintiff is to pay the defendants’ costs in both proceedings as agreed or assessed.(2) In proceedings 20361/2007 the notice of motion filed 22 April 2008 is dismissed.
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