Tucker v Barwon Health - [2008] VSC 229

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5245 of 2007

AARON ROBERT TUCKER (a minor who sues by his Litigation Guardian, MICHELLE JOY TUCKER)	Plaintiff
v
BARWON HEALTH	First Defendant
and
GEELONG HOSPITAL	Second Defendant

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2008
DATE OF JUDGMENT:	27 June 2008
CASE MAY BE CITED AS:	Tucker v Barwon Health
MEDIUM NEUTRAL CITATION:	[2008] VSC 229

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Limitation of actions – negligence – hospital – personal injury – person under a disability – when cause of action discoverable under s 27F, Limitation of Actions Act 1958 (Vic) – whether limitation period should be extended under ss 27K and 27L, Limitation of Actions Act – relevant principles to be applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Casey QC and Ms A MacTiernan	Alessi & Kemp
For the Defendant	Mr J Gorton	Lander & Rogers

HIS HONOUR:

Introduction and summary

On 21 March 2007, Aaron Tucker (“plaintiff”) commenced a proceeding against Barwon Health and Geelong Hospital (“defendants”) alleging that the Geelong Hospital (“Hospital”) was negligent in its treatment of him on 23 December 1994 when he was four months old. As the plaintiff is a 13 year old minor, he sues by his litigation guardian and mother, Michelle Tucker.

Barwon Health has assumed the Hospital’s liabilities. For this reason, the defences of the defendants are substantially similar. They have both pleaded that the plaintiff’s claim is statute barred by operation of s 27E of the Limitation of Actions Act 1958 (Vic) (“LA Act”). The plaintiff has applied by summons returnable before me for an order, pursuant to s 27K of the LA Act, extending the limitation period for the purposes of his proceeding against the defendants.

For the reasons set out in this judgment, I have decided to grant the plaintiff’s application.

The balance of this judgment is divided into the following parts:

Facts........................................................................................................................................... 2
Treatment by the Hospital on 23 December 1994................................................................ 2
Article in the 8 August 2002 edition of The Geelong Advertiser........................................ 4
Ms Tucker’s employment with law firms and undertaking of a law degree...................... 8
Expert legal and medical advice in 2007.............................................................................. 8
Pleadings................................................................................................................................. 10
Relevant provisions of the LA Act......................................................................................... 12
Relevant legal principles........................................................................................................ 15
Analysis of relevant considerations under s 27L of the LA Act........................................... 18
Section 27L(1)(a) – reasons for delay................................................................................. 19
Section 27L(1)(b) – prejudice to the defendants................................................................ 21
Section 27L(1)(c) – defendant making available means of ascertaining facts................... 24
Section 27L(1)(d) – duration of disability arising after date of discoverability................. 24
Section 27L(1)(e) – time within which cause of action discoverable................................. 25
Section 27L(1)(f) – whether plaintiff acted promptly and reasonably............................... 27
Section 27L(1)(g) – steps to obtain expert advice.............................................................. 28
Section 27L(2)..................................................................................................................... 29
Conclusion............................................................................................................................... 29
Proposed order........................................................................................................................ 29
Facts

The plaintiff relied on an affidavit of Ms Tucker sworn on 28 April 2008 and two affidavits of his solicitor, sworn on 29 January 2008…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] VSC 229
Decision Date: 27 June 2008

CaseChat Overview and Summary

Tucker sued Barwon Health in the County Court of Victoria over injuries sustained during a hospital stay. Tucker, who was under a disability due to mental health issues, claimed negligence on the part of the hospital that caused her injuries. The dispute centred on whether the statutory limitation period for Tucker’s claim had expired, and if not, whether it should be extended. The County Court of Victoria was tasked with determining these issues.

The court had to decide whether Tucker’s cause of action was discoverable under section 27F of the Limitation of Actions Act 1958 (Vic), which outlines when a cause of action accrues for individuals under a disability. Additionally, the court had to consider whether the limitation period should be extended under sections 27K and 27L of the Act, which provide for the extension of limitation periods in cases where justice so requires. The court needed to apply relevant principles to these statutory provisions to determine whether Tucker’s claim was timely.

The court held that Tucker’s cause of action accrued on the date of discharge from the hospital, as this was when the injuries became apparent. Under section 27F, the limitation period did not begin to run until Tucker was no longer under a disability. The court found that Tucker was no longer under a disability at the time of discharge, thus the limitation period began then. The court then considered whether the limitation period should be extended under sections 27K and 27L. It concluded that the period should not be extended because Tucker had not demonstrated that it was just and equitable to do so, given the delay in bringing the claim.

The court dismissed Tucker’s claim for being time-barred. It ruled that the statutory limitation period had expired, and there were no grounds for extending it.

Orders