Van Eckeren v Watson & Rieger No. DCCIV-02-186
[2004] SADC 40
•9 March 2004
Margaret Van Eckeren
v Richard Wyndham Watson and Richard Rieger
[2004] SADC 40CIVIL
JUDGE DAVID SMITHIntroduction
In this action the plaintiff sues the defendant plastic surgeons, for damages in contract and tort for breaches of duty in connection with three nose reconstruction operations. Two operations were performed by the first defendant, respectively 23rd February 1979 and 25th January 1980 and the third was performed by the second defendant on the 28th January 1981. These proceedings were issued on the 8th February 2002. The action should have been commenced within “... three years next after the cause of action accrued ...” (s36 Limitation of Actions Act 1936). For the tort of negligence the cause of action arises or accrues when damage results. In respect of contract the cause of action accrues at the time of the breach giving rise to damage. Clearly the alleged causes of action against both defendants in respect of each of the operations arose or accrued at about the times of the surgery. So, on the face of it this proceeding is well and truly statute barred. Section 48 of the Limitation of Actions Act 1936 enables a plaintiff to apply for an order extending time in which to institute an otherwise statute barred action. The plaintiff has applied for such an extension
Pursuant to the order of Master Rice of this Court made on the 4th April 2003, the application pursuant to s48 is before me as a preliminary point. The defendants not only oppose the application but also seek to have the action struck out as an abuse of process. I will treat the abuse of process application as an alternative to the application to extend time.
The provisions of s48 material to this matter are as follows:
“48. (1) Subject to this section, where an Act, regulation, rule or by‑law prescribes or limits the time for
(a) instituting an action; or
(b) doing any act, or taking any step in an action; or(c)doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that
(a) the court has jurisdiction to entertain; or
(b)the court would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not
(a)apply to criminal proceedings; or
(b)empower a court to extend a limitation of time prescribed by this Act unless it is satisfied
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
(4) ...........................
(5) ...........................
(6) ............................
(the italics are mine)”
It can be seen that the Court ultimately has a discretion to exercise as to whether to grant the application. However, in order to qualify for the exercise of discretion the plaintiff must surmount either of the hurdles set out in (i) or (ii) of s48(3)(b). In this case, the plaintiff relies on (i) of s48(3)(b).
So to succeed the plaintiff must establish:
·that within 12 months of ascertaining facts material to her case she instituted these proceedings; and
·that in “all the circumstances of the case is it just to grant the extension of time”.
The interpretation of the above provisions was substantially settled by the High Court in 1987 in Sola Optical Australia Pty Ltd v Mills (1987) 75 ALR 513 though the Court deliberately did not explore the parameters of the statutory discretion (see 520, 521).
Credibility Reliability
No real issue of credit arose from the evidence limited as it was to the question of the extension of time. In that context, I accept as credible and reliable the assertions of fact of the plaintiff and her witnesses on the one hand and the defendants and their witnesses on the other. I make no findings as to the allegations of breach of duty or the denials of such, which emerged in the evidence. The merit of these claims is only fleetingly relevant in an application such as this. So my acceptance of the credibility of the witnesses does not extend to an acceptance of either the allegations or the denials of neglect.
The trial of this preliminary application took place over seven days. I set out hereunder my findings as to the relevant circumstances as disclosed by the evidence from both sides. What follows is a narrative of both cases which constitutes my findings. The evidence descended into considerable detail. I will not canvass all that has been led. Rather, what I set out hereunder is what I regard as the essential findings for the proper determination of this application.
The Plaintiff’s Case
The six nose reconstructions
In early 1979 the plaintiff consulted the first defendant. She said she requested him to remove a small bony lump on the bridge of her nose and make her nose more slender (16). She said that the first defendant did not warn her about possible complications (18). The surgery called a corrective rhinoplasty took place at the Lyell McEwen Hospital on 23rd February 1979 (see Exhibit D17 and D18). The plaintiff was unhappy with the outcome. She said that one side of the tip of her nose was longer than the other and that the nose was generally asymmetrical (19). She alleged that apart from the nose being cosmetically displeasing to her she suffered from some other complications (23, 30). The first defendant agreed to perform further surgery. That, called a tip rhinoplasty, took place again at the Lyell McEwen Hospital on the 25th January 1980 (see Exhibit D19). The plaintiff again was displeased with the outcome and alleged, inter alia, that the first defendant had over corrected the alignment of the tip of her nose (22). He referred her to the second defendant (22).
The plaintiff consulted the second defendant at his South Terrace rooms (24). She said that by then she was suffering from a range of difficulties including sleep disturbances and breathing difficulties, a dripping from her nose and “snuffles” (23). According to the plaintiff, the second defendant indicated to her that he could remove the unevenness in the bridge of her nose and restore its symmetry by, inter alia, putting cartilage in the area of the tip (25). The plaintiff alleged that he told her that he could make her nose more elegant (26). The plaintiff underwent this third rhinoplasty which as I said was performed by the second defendant at the Ashford Hospital on the 28th January 1981 (see Exhibit D3). She said that when the plaster was taken off she was devastated by what she saw. She said her nose was small, pointy and beaklike in appearance (26-28). She further elaborated on its parlous appearance saying that initially she hid herself away from the public (27). She complained about this to the second defendant who refused to perform any further surgery and recommended counselling (29, 30). She said that complications continued following this surgery and included breathing difficulties, neck pain, fatigue, coughing, including coughing up blood, and chest pain (30).
Undaunted by all this, the plaintiff underwent three further nose operations. Her general medical practitioner referred her to the plastic surgeon Dr Ian Leitch. Dr Leitch required her to undergo some counselling before operating on her (32). Apparently reassured, he then performed two further procedures on the plaintiff’s nose; the first at the Flinders Medical Centre in March 1983 and the second at the Flinders Medical Centre in July 1983. The plaintiff claimed that Dr Leitch “botched” the first procedure so that the second became necessary (39). Amongst other things she alleged her breathing difficulties continued to be a problem (36, 37).
The final nose operation took place in March 1984 at the Wakefield Memorial Hospital (57). This was performed by a plastic surgeon, Dr John Hokin, and Dr Robert Guerin, an Ear Nose and Throat Specialist was also involved. According to the plaintiff, the purpose of this final procedure was to address her breathing difficulties. She said it was to give “more airflow” (45). Again, the plaintiff was not satisfied with the results of this surgery.
Supreme Court Actions
The plaintiff considered that all of the above mentioned medical practitioners, the Wakefield Memorial Hospital and a certain Dr Dixon, who was the anaesthetist, were negligent and in breach of the contractual duty owed to her in connection with the particularised procedures. In respect of the final nose operation, she also claimed that her eyes were negligently injured by the use of an excessively strong solution.
So the plaintiff instituted a battery of Supreme Court actions some particulars of which I set out in the following table:
Cases Involving Rhinoplasties – Eye Injury Name of Action Action No. Date Issued Final Result Richard Wyndham Watson 2133/86 17/07/86 Discontinued 1987 Richard Anthony Rieger 2134/86 17/07/86 Discontinued 1987 Ian Oliver Westwood Leitch 1047/86 7/04/86 Heard before Perry J 1992. Appealed. Never heard. Lapsed John Andrew Baird Hokin 2135/86 17/07/86 Heard before Perry J 1992. Appealed. Never heard. Lapsed Robert Langley Guerin 2136/86 17/07/86 Heard before Perry J 1992. Appealed. Never heard. Lapsed Wakefield Memorial Hospital & abovementioned Hokin, Guerin and Dixon 554/87 1987 Heard before Perry J 1992. Judgment for $6100 (eye injury) These actions were not consolidated but “travelled together”.
Judgment delivered 5/11/92.
The above actions, which I will call the previous actions, against the defendants Watson and Rieger, were also prima face statute barred and so required an extension of time. As can be seen, those two previous actions against the defendants Watson and Rieger were discontinued in 1987. The plaintiff complained that her then solicitors, Messrs Andersons, wrongly advised her to discontinue (60). She reluctantly acted on their advice. The actions were discontinued on about the 6th October 1987 (see Exhibit D20).
The plaintiff continued to prosecute the actions against the other defendants listed in the table and, save for the claim in respect of her eyes, she did not succeed. On 5th November 1992 Perry J entered judgments against her in respect of the claims concerning the rhinoplasties (see Van Eckeren v Leitch & Ors Unreported Jud No S3689 del 5/11/1992). She appealed.
Apparently at about the same time as she was undergoing nasal surgery, the plaintiff was also undergoing gynaecological, urological and gastroenterological (73) procedures. In 1986 she sued five medical practitioners who were involved in various ways in those procedures. The five separate actions were heard in the Supreme Court before Justice Debelle who, on the 27th July 1993, dismissed them (see Van Eckeren v Skipper, Harbison, Porter, Pridmore and Bridgewater Unreported Jud No S4060 del 27/2/93). The fact and fate of these actions have no relevance to this matter save that the plaintiff sought to join the appeals against the decisions of Debelle J with those against the adverse decisions of Perry J and prosecute them together.
Due to a lack of funds and the refusal of legal aid, the plaintiff has not prosecuted the appeals. They have presumably lapsed.
The present action
Notwithstanding the discontinuance of the previous actions against the present defendants, the plaintiff said that she remained unhappy about the early nasal surgery and the ongoing complications, which, she was convinced, had resulted from it. This state of unhappiness was no doubt in part fuelled by the opinion of Dr Eugene Tan. In his report dated 13th December 1988, he said that “the narrowed air passages and valve like collapse could have been caused by the initial rhinoplasty” (see Exhibit P6). Indeed the oral evidence of Dr Tan before me was stronger. He said that the plaintiff’s present breathing problems, probably were, as opposed to could have been, related to the first rhinoplasty (254, 251, 262). Dr Tan gave evidence in the trial before Perry J in the Supreme Court and presumably his report was disclosed to the defendants in the lead up to the trial. The plaintiff relies on this report as constituting some notice to the present defendants that, notwithstanding the discontinuance, the claims against them were not at an end. I must say that I regarded the assertion of Dr Tan in evidence as drawing a long bow indeed. How, after no less than six bouts of nasal surgery dating back to 1979, and the suggestion of some procedure earlier in Germany, he could contend that the first was responsible for a nasal collapse, if there was one, escapes me. This contention, quite properly, was not explored in evidence and it is not necessary for me to have a concluded view about it.
The plaintiff retained her current solicitor, Peter Scerri, in about June 1999. He wrote to a number of people on the plaintiff’s behalf including the defendants and their former solicitors about, inter alia, preserving files and records (see Exhibit D2). This correspondence, like Dr Tan’s report, was said to be admissible in this application on the basis that it was some notice to the defendants of the enlivening of the claim against them.
The plaintiff consulted a Respiratory Physician, Dr Peter Anthony Frith, in about the year 2000 concerning her breathing difficulties. He gave evidence in this application. He said that he caused the plaintiff to undergo tests at the Sleep Disorders Unit at the Repatriation General Hospital in May, October and November of 2000. Armed with the findings from the unit and in particular from Dr Doug McEvoy, said to be “the State’s leading expert on Sleep Disorders”, Dr Frith, came to the following conclusion:
“My own synthesis is that Mrs Van Eckeren has become extremely anxious and introspective about her physical condition and this causes hyperventilation to the extent that, when voluntary control is withdrawn (as in sleep) there is no longer any need or stimulus to breathe. She therefore suffers apnoea at sleep onset. If this sleeping-waking cycle recurs many times through the night, the repeated apnoeas may result in repeated low blood oxygen levels, and, if she has sensitive blood vessels in the lungs (pulmonary circulation), she may develop constriction of these vessels recurrently. Ultimately this could increase the pressure within this circulation system (pulmonary hypertension). She is likely to have a waxing and waning of her breathing when awake, too, and this could accentuate these pulmonary circulation changes.”
Dr Frith communicated that view to the plaintiff’s solicitor by report dated the 9th February 2001 (see Exhibit P1). I accept that within approximately two weeks of the date of the report the plaintiff herself learned of that opinion (53, 54).
On the 8th February 2002 the plaintiff instituted these proceedings and necessarily the proceedings were “endorsed with a statement to the effect that the plaintiff seeks an extension of time ...” (see s48(4)).
The Defendants’ Case
I now turn to the defendants’ case and my findings in respect of it.
By reference to the Lyell McEwen Hospital Records, the first defendant, Dr Watson, acknowledged performing the Corrective Rhinoplasty on the 23rd February 1979 and a Tip Rhinoplasty on the 25th January 1980 (213, 229, 230). Apart from the hospital records Dr Watson’s own notes of pre and post operation consultations have been destroyed in either 1989 or about 1996 (217-219, 231, 232). He retired in 1993 (210). He said that he had no independent recollection of either the plaintiff or of the two surgical procedures (212, 212, 239). In particular he had no recollection of the plaintiff complaining of the outcome (215). When it was suggested that it could be inferred from the fact that a second procedure took place because the first did not fair well, Dr Watson explained that it was not unusual for there to be a series of operations when cosmetic surgery of the nose was involved (239, 240). Further, he said that when he received the letter from the plaintiff’s solicitor dated the 19th June 1999 (see Exhibit D2), which was said to be a Notice of Claim, he thought the plaintiff must have confused him “with some other surgeon” (232). Further, he said that by then all the records retained by him probably had been destroyed (232, 233). He said he did nothing about the said letter and following the service of these proceedings on him on the 25th April 2002, he again did nothing (234, 235). In any event, his insurer took over the conduct of his defence (235). Rather surprisingly, he had no memory of the institution of the July 1986 proceedings against him nor of their discontinuance 15 months later in October 1987 (245). He explained that he “... had been sued by a couple of patients and they are vivid memories but I can’t recall this. It couldn’t have come to much ...” (246).
It is clear from the evidence that an Ear Nose and Throat Specialist named Dr Palaiyur Rajagopalan was consulted by the plaintiff prior to the first rhinoplasty of the 23rd February 1979, and assisted Dr Watson at that surgery (see Exhibit D17; 99, 100, 214). Dr Rajagopalan died on the 26th October 2001 (see Exhibit D8). Nothing is known of the existence or otherwise of his notes (submission 235, 236).
The plaintiff was referred to the second defendant, Richard Anthony Rieger, by Dr Watson on about the 15th January 1981. Dr Rieger’s records set out, inter alia, that “... a revision of the previous rhinoplasty was carried out on the 28th January 1981. At that time an infracture with a small bony lump on the right nasal bone was removed plus excision of the alar cartilage on the left side.” (see Exhibit D3). Dr Rieger was not able to recognise the plaintiff in court and had no independent recollection of his contact with her (150, 154). His notes relating to the lead up consultations, the surgery and the follow-up consultations are in existence as are the notes of the Ashford Community Hospital where the procedure took place (see Exhibits D1 and D3). The two lots of notes are sparse and neither kindled Dr Rieger’s memory. He told the Court that his correspondence file, including a file relating to the plaintiff, was destroyed when he retired in 1997 (159). His notes in respect of a consultation on the 23rd February 1980 recorded “... look better ... will not admit it ...”. Later the notes recorded “... make no more appointments. Dr Rieger can’t do anymore for her ...”. The later note, Rieger said, was probably made by his secretary.
It is common ground that Wallmans Lawyers, at all material times, have acted for the defendants. Catherine Mary Schultz, who is the Practice Manager of Wallmans Lawyers, said in evidence that the files relating to the previous actions against the defendants were destroyed. In particular, the file relating to Dr Watson was marked for destruction on the 23rd May 1995 and searches recently at the offices of Wallmans Lawyers have been fruitless. Ms Schultz said she assumes it was destroyed in accordance with the firm’s policy on or about that date, the 23rd May 1995, when it was “earmarked” for destruction (see Exhibit D4, D5; 178). In relation to Dr Rieger, she said that Wallman’s file was destroyed on the 1st July 1996 (Exhibit D5; 183).
The plaintiff accepted that in October 1975 she consulted the late Dr Donald Robinson, a plastic surgeon, in the Royal Adelaide Hospital (113). Further, she agreed that she saw Robinson again on the 13th August 1980 which was after the second operation performed by Dr Watson (114). Dr Robinson died on the 7th August 2000, (see Exhibit D9), and, according to Dr Robinson’s widow, any records relating to the plaintiff, if in existence at the date of his death, would have been destroyed “between September and November 2000” (see Exhibit D11).
At about the time the plaintiff consulted Dr Watson, namely in 1979, the plaintiff’s referring general medical practitioner was Dr Finikiotis (99). He was still the plaintiff’s general medical practitioner or at least one of them in 1987 (102). It is agreed that the records of the plaintiff held in the practice of Dr Finikiotis, namely at the Elizabeth North Clinic, could not be located (see Exhibit D12).
In December 1983 the plaintiff began consulting the Ear Nose and Throat Specialist Dr Robert Guerin, presumably concerning her breathing difficulties (112). Dr Guerin died on the 24th October 1999 (see Exhibit D10).
Further, it is clear from the plaintiff’s evidence that at times material to this action she consulted with and was treated by Drs Klaveniek and Birdsey of the Flaxmill Road Surgery at Christies Downs. It is agreed that the medical practice there has no medical records relating to the plaintiff (see Exhibit D6).
The defendants called in their case, in this application, the solicitor Mr Dion McCaffrie of Messrs Andersons, who were the plaintiff’s solicitors prior to and at the time of the discontinuance of the previous actions against the current defendants on the 6th October 1987. Mr McCaffrie said in evidence that no record relating to those actions could be found. In particular he said that the files relating to the plaintiff were probably destroyed seven years after their completion (249).
Such are the facts which I find arise from the evidence.
With those facts in mind I now turn to the two matters which the plaintiff must establish to succeed.
Has the plaintiff ascertained facts material to her case and instituted these proceedings within 12 months of so doing? (s48(3)(b)(ii))
Whether or not facts material to the plaintiff’s case were ascertained by her within the meaning of s48(3)(b)(ii) is an objective enquiry. At p519 the Full Court of the High Court in Sola Optical said:
“There is no warrant for writing into the Act a further qualification that, to attract the operation of s 48(3)(b)(i), there must be some interaction between the material fact and the plaintiff’s decision to sue. It is materiality to the plaintiff’s case that must be shown. This is a broad general requirement that is capable of satisfaction by objective inquiry. To introduce notions, related to the decision to sue, that would require an examination of the subjective workings of the plaintiff’s mind would complicate the court’s task and impede rather than advance the purpose of the Act. A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word “material”, inter alia, to mean “Of such significance as to be likely to influence the determination of a cause”. Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to “facts material to the plaintiff’s case”.
(The italics are mine)
The plaintiff must ascertain the fact or facts personally (see Sola Optical 519, 520).
As previously indicated, I am satisfied that approximately two weeks after the 9th February 2001, which is the date of Dr Frith’s report, the plaintiff saw his report and herself learned that he was of the opinion that anxiety and introspection about her physical condition was causing hyperventilation which in turn was causing breathing difficulties and possible constriction of pulmonary circulation and pulmonary hypertension (52-54). Certainly Dr Frith’s view is an opinion as opposed to an assertion of fact, but that is not to the point. What was ascertained by the plaintiff was the fact that Dr Frith held that view (see Sola Optical 520; see also Smith v Land and House Property Corp (1884) 28 Ch D 7). Indeed, the fact of the existence and content of Dr Frith’s report was capable of being material to the plaintiff’s case in the sense that the report represented available evidence and could be called in support of her case (see Sola Optical 520).
Further, I am satisfied that Dr Frith’s opinion is material to the plaintiff’s case. In her evidence, the plaintiff complained of breathing difficulties from the time of if not the first then the second rhinoplasty (23). Also, I take Dr Frith’s reference to the plaintiff’s “physical condition”, about which he says she has become extremely anxious and introspective, to include the sequelae of the nasal surgery.
Finally, I find that these proceedings were issued within 12 months of the plaintiff learning of Dr Frith’s opinion. In particular, the summons was issued on the 8th February 2002 and, as I said, I accept what the plaintiff said in evidence, namely that Dr Frith’s report was shown to her by her solicitor “at least two weeks after or even shorter” (53). The matter she was there referring to was the date of the report, namely the 9th February 2001.
Accordingly, I find that the plaintiff has ascertained a fact material to her case and has instituted these proceedings within 12 months of so doing.
I turn now to the exercise of discretion.
In all the circumstances is it just to grant the extension of time? (s48(3)(b))
The first matter to be addressed is what are the considerations or parameters for the exercise of this discretion?
Early guidance to the considerations relevant to the exercise of this discretion came from the reasons for judgment of Judge JM White (as he then was) in Lovett v Le Gall (1975) 10 SASR 486. At 494 His Honour said as follows:
“The matters usually taken into account when the court is exercising its discretion whether or not to allow a dilatory plaintiff to proceed with his action when the defendant has applied to strike it out for want of prosecution seem to be relevant here, especially where the application is made after the limitation period has expired. The plaintiff is then at the mercy of the discretion. That type of plaintiff at least has a vested interest in an existing action and may be in a better position than the plaintiff here who had not commenced action within time. Cf. Bartrum v Kuhri [1935] SASR 273. Bearing in mind that difference and the fact that other factors are involved in the exercise of a s. 48 discretion, I propose to look at the important considerations in a striking out application. These are conveniently summarized by the learned Chief Justice in Ulowski v Miller [1968] SASR 277 at p280:-
“It must be remembered that we are dealing here with a discretion and in my opinion it ought not to be fettered by any absolute or inflexible rules. It clearly appears from [English and interstate] cases that the five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation”.
To the above list might be added the conduct of the plaintiff and the nature, importance and circumstances surrounding the ascertainment of the new material facts.”
(The italics are mine)
It needs to be noted that His Honour was there addressing the provisions of s48 which were inserted into the Act in 1972. Those provisions were different in form and content to the present provisions which were inserted into the Act in 1975. However, the statutory discretion was not materially different. While White J’s approach to the exercise of discretion was not challenged on the appeal, which followed his decision, (see Lovett v Le Gall (1975) 10 SASR 479), I would suggest that the Full Court impliedly endorsed His Honour’s approach to the issue of discretion (see Bray CJ at 485).
The construction of this section next arose vigorously in the case of Sola Optical. In the trial of the application for the extension of time, Bollen J extended time for the plaintiff to institute the proceedings (see Mills v Sola Optical Australia Pty Ltd (1986) 129 LSJS 32). At 48 Bollen J said in relation to the discretion as follows:
“Would it be just to grant the extension of time? I have considered the cases of Ulowski v Miller 1968 SASR 277, Mavra v Logan (1980) 24 SASR 567 and Walker v State Transport Authority (1985) VR 327, to which I was referred. I have taken into account the reason for the failure to issue the writ “in” time. I have given some weight to the fact that the plaintiff’s wish to seek damages was early known to the defendant. The only prejudice which the granting of the extension will cause the defendant will be the need to contest or settle the case. No other prejudice such as vanished witnesses has been shown. If the plaintiff is not granted an extension her chance to seek damages will be lost forever. That is, in this case, decisive.”
The decision of Bollen J was the subject of an appeal to a specially constituted five-member bench of the Full Court (see Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364). The parameters of the exercise of discretion were not agitated with any great vigour. However, I would suggest again that the approach taken by Bollen J, which, as can be seen, was the same as that taken by White J in Lovett v Le Gall, was endorsed by the majority Justices (see King CJ at 372, White J at 382, O’Loughlin J at 399). The terms of the grant of special leave to appeal to the High Court specifically excluded the agitation of the discretion.
Since Lovett v Le Gall the courts in this State have continued to apply to the exercise of the discretion embodied in s48, the considerations referred to by White J in Lovett v Le Gall as borrowed from applications to dismiss for want of prosecution, (see Ulowski v Miller [1968] SASR 277), and applications to renew stale writs (see Victa Ltd v Johnson (1975) 10 SASR 496).
In 1996 the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Brisbane Health Authority”) addressed the parameters of a statutory discretion to extend a limitation period conferred in s31(2) of the Limitation of Actions Act 1974 (Qld). In Pomeroy v Thwaites Witham Pty Ltd & Krantz (2001) SASC 125, the Full Court of the South Australian Supreme Court held that what the High Court said applied to the construction of s48(3)(b) of the Limitation of Action Act 1936 (SA). Justice Gray who delivered the leading judgment did not further explore considerations which may be relevant to the exercise of the discretion, save that he said:
“The application of either test leads to the same conclusion in this matter. Although this is not the occasion to express a concluded view about the correct approach, I consider that when dealing with an application to extend time the overriding enquiry should be - can there be a fair trial? The South Australian legislative scheme supports such an approach as it leaves the court with an unfettered discretion once an applicant has met the qualifying condition.”
(24 par (81))
The High Court Justices in the Brisbane Health Authority expressed some doubt about certain considerations relied upon by the Queensland Court of Appeal in the exercise of the discretion to extend conferred in the Queensland legislation. These same considerations have been relied upon from time to time by courts in this State when exercising the discretion embodied in s48(3)(b). In particular, in Brisbane Health Authority, Toohey and Gummow JJ said at 548 and 549:
“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application (Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 114 at 116-117; Posner v Roberts [1986] WAR 1 at 6). It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”
Then later at 549 and 550 their Honours said:
“In this regard we have difficulty with the notion of weighing prejudice to an applicant against prejudice to the respondent (cf Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 514, per Kirby P). In one obvious sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised. For that reason we do not accept the respondent's argument that the District Court fell into error in failing to balance the prejudice to the appellant against the prejudice against the respondent. It may be appropriate to temper that approach and to say that because the respondent has satisfied par (b) of sub-s (2), there is therefore evidence to establish her right of action. Even then, a weighing process is not called for. The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”
At pages 554 and 555 McHugh J said
“The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit.”
So, some revisiting of the time honoured considerations for the exercise of the discretion first espoused by White J in Lovett v Le Gall is warranted. By reference to the Brisbane Health Authority I set out some parameters guiding the exercise of the s48(3)(b) discretion.
(1) The discretion embodied in s48(3)(b) is not truly unfettered. Though the language conferring the discretion is wide and unconstrained, that does not mean virtually anything is relevant. It is always the case that the scope, intent and purpose of the legislation controls even the most generously worded discretion, so that extraneous matters cannot be taken into account (see O’Sullivan v Farrer (1989) 168 CLR 210, 216). In Brisbane Health Authority McHugh J said at 554:
“In determining what the justice of the case requires the judge is entitled to look at every relevant fact of circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period”.
(2) What is the “scope and purpose of the enactment”? In Sola Optical Australia the High Court Justices briefly spoke of it in the following terms:
“No doubt the broad purpose of the Act was substantially the same, namely, to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced. Section 48(1) confers, subject to the section, a general and unfettered power upon a court to extend the time prescribed by any Act (including the Limitation of Actions Act 1936 itself) or piece of subordinate legislation for instituting an action, or for doing any act in an action or with a view to instituting an action.”
(518)
An overview of the Act demonstrates that the policy of the law is to fix definite time limitations for prosecuting civil claims but permit an extension as an exception.
In the Brisbane Health Authority case at 552, 553 McHugh J identified four rationales which underpin statutes of limitation. These have clear application to the South Australian legislation. They are:
·as time passes evidence is lost;
·it is oppressive to allow the prosecution of an action long after the circumstances giving rise to it have passed;
·people ought, after a passage of time, be free to arrange their affairs on the basis that claims can no longer be made against them; and
·public interest requires that disputes be settled as quickly as possible.
As Justice McHugh pointed out at 553:
“The purpose of a provision such as s31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced” (see Sola Optical at 518). But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action.”
The language of the South Australian Act evinces such a policy.
(3) The general rule is that the limitation period will apply and any extension of it must be regarded as exceptional. It follows that an applicant must establish the exception. In particular, the applicant for an extension of time has “a positive burden of demonstrating that the justice of the case requires that extension” (see Brisbane Health Authority per McHugh J 553, 554).
(4) The scheme of s48 and in particular s48(3) provides a two-stage process. As previously indicated, in order to qualify for the exercise of the discretion the plaintiff must surmount either of the two hurdles set out in (i) or (ii) of s48(3)(b) (see Napolitano v Coyle (1977) 15 SASR 559 per Bray CJ at 569). But “to qualify is not to succeed” (see Lovett v Le Gall (supra) per Wells J at 486). After qualifying, to succeed the plaintiff must establish his entitlement to a favourable exercise of discretion.
(5) Qualifying for the exercise of discretion is not to be equated with a presumption that an extension should be granted unless the defendant can, for instance, establish some prejudice. The onus always remains with the plaintiff. So notwithstanding that the plaintiff has established, for instance, that she has ascertained “a fact material to her case and has issued the proceeding within 12 months of so doing” the onus of satisfying the court that the discretion should be exercised in her favour still remains on her (Brisbane Health Authority per Dawson J 554; Toohey & Gummow JJ 547; McHugh J 551, 554; Kirby J 567).
(6) With the exception of Dawson J and perhaps McHugh J, the High Court Justices in Brisbane Health Authority said that whilst the overall onus is upon the plaintiff, there is nonetheless an evidentiary onus on the defendant to call evidence of prejudice (see Toohey, Gummow JJ 547, Kirby J 566, 567). It seems that McHugh J did not wholly accept that proposition, but rather spoke of presumptive prejudice and actual prejudice. At page 551 His Honour said:
“Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
In particular, McHugh J said that if actual prejudice is established by the defendant then the extension of time cannot be granted but if prejudice can only be inferred by a long delay then, as I interpret his remarks, the court should nonetheless weigh up the impact of all the circumstances bearing in mind the overall onus borne by the plaintiff (see McHugh 555).
(7) The real question is “whether the delay has made the chances of a fair trial unlikely” (see Brisbane Health Authority per McHugh J 550). Further, at 548 Toohey and Gummow JJ said:
“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible.”
(8) The considerations relevant to the exercise of the discretion are not to be confined by inflexible rules. There could not be an exhaustive list of considerations. The power to extend is a “general and unfettered power” (see Sola Optical 518). To use the words of McHugh J in Brisbane Health Authority at 554:
“In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”
(The italics are mine)
So the discretion is confined only by the scope and purpose of the legislation conferring the discretion. Accordingly, setting out an exhaustive list of considerations would be inappropriate.
(9) As to the relevance of the considerations identified, by White J in Lovett v Legall being:
·length of delay;
·reason for delay;
·prejudice to defendant if time limit is extended;
·hardship to the plaintiff if time limit is not extended;
·conduct of both the plaintiff and the defendant in the litigation; and
·nature, importance and circumstances surrounding the ascertainment of the material facts.
I do not regard the High Court Justices in Brisbane Health Authority as precluding reliance on them save for the criticisms previously mentioned. Indeed, properly considered they are all matters which are arguably pertinent. But they are considerations which are subordinate to the important consideration of whether the delay has or has not made the chances of a fair trial unlikely.
As I have indicated, specific criticism has been levelled at the process of balancing hardship to the plaintiff against prejudice to the defendant and testing prejudice by asking whether the defendant is any worse off than it would have been if the action had been commenced within time but towards the ends of the limitation period. That should no longer be done.
(10) As indicated, the evidence in this application occasionally strayed into the merit of the plaintiff’s claims of neglect and the denials. That is inevitable where the application for extension is separated from the trial of the claims. However, the merit of the action is not a relevant consideration beyond the plaintiff establishing that she has a case fit to be tried. Consequently, most preliminary applications should go forward on the assumption that the plaintiff’s stale claim has arguable merit. It would be a rare case where a court in this sort of application could be satisfied that the plaintiff’s primary claim was patently absurd and wholly lacking in merit. In the case of Reeves v Leyland Motor Corporation (1984) 115 LSJS 62, when allowing an appeal against the entry of a judgment following a failure to comply with the terms of a self-executing order Cox J at 63 said:
“As to the merits of the case, I do not want to say anything on that by way of anticipating the decision that the Local Court will, in due course, have to make in adjudicating upon the respondent’s claim and the appellant’s counter-claim. Mr. Morcombe has referred me to the documents on the file, from the R.A.A. and from Amdel in particular, and has suggested that they do not really offer much promise of a successful defence to his client’s claim. Perhaps their role is a limited one, and no doubt the appellant would need further evidence to make out his case, but I am quite unable to say that his defence and his counter-claim are so lacking in merit that on this ground the appeal should not be allowed, or even, indeed, that that is a factor that can relevantly be taken into account against him.”
With those principles in mind I now turn to the exercise of discretion on the facts of this case.
It is my view that a fair trial is not possible. This action relates to events respectively 23 and 25 years ago. The period allowed for instituting proceedings for injuries arising from those events is three years. The delay is inordinate and brings with it both actual and presumptive prejudice. I set out hereunder the proven circumstances, the accumulation of which, convinces me that it would not be just to grant the extension of time.
Loss of Memory – Actual and Presumptive
The delays here are of such a dimension that the defendants actually and understandably have no memory of the plaintiff or of the circumstances surrounding the surgery complained of by her. As indicated, I accept without reservation their evidence as to their inability to remember. Further, what they have lost is the opportunity to canvass other evidence or call up memories of what may have been capable of assisting their case. This is an example of the presumptive prejudice spoken of by McHugh J in Brisbane Health Authority at 551:
“So it must often happen that important perhaps decisive evidence has disappeared without anybody now knowing that it ever existed.”
This is an overwhelming matter and by itself would lead to a conclusion that a fair trial would not be possible. But there is more.
Loss of records of defendants
Dr Watson destroyed his own records in either 1989 or 1996. The Lyell McEwen Hospital records relating to the procedures performed by Dr Watson in 1979 and 1980 are in existence but those records are sparse and did not enliven Dr Watson’s memory.
Dr Rieger has retained his notes and further the Ashford Community Hospital notes relating to the procedure performed by him in 1981 are in existence. However, again, both sets of records are sparse and did not assist Dr Rieger’s memory. His correspondence file, whatever it contained, was destroyed in 1997 when he retired.
Further, the solicitors files relating to both defendants were destroyed in the ordinary course of business of the solicitors, Messrs Wallmans Lawyers. In particular, Watson’s file was destroyed in 1995 and Rieger’s in 1996.
It could not sensibly be suggested that those records mentioned above which have been destroyed ought not to have been destroyed. What needs to be borne in mind here, is the third “rationale” for limitation periods, highlighted by Justice McHugh in Brisbane Health Authority case, namely:
“People should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.”
Deaths and Absence of Records of Potential Witnesses
A number of medical practitioners who had close contact with the plaintiff in relation to her claimed nasal problems are now dead.
·The plastic surgeon Dr Donald Robinson, whom the plaintiff consulted in the midst of the nasal procedures, died on the 7th August 2000 and his records have been destroyed;
·Dr Palaiyur Rajagopalan, the Ear Nose and Throat Surgeon, whom the plaintiff consulted and who assisted Dr Watson in the first operation at the Lyell McEwen Hospital in 1979, died on the 26th October 2001 and nothing is known of his records.
·Dr Robert Guerin, an Ear Nose and Throat Surgeon, whom the plaintiff consulted in about December 1983, and later sued, died on the 24th October 1999.
·Records from several general medical practitioners, namely Drs Klaveniek, Birdsey and Finikiotis, all of whom the plaintiff consulted at material times, cannot be located.
Now it cannot be said one way or the other that these witnesses and the records mentioned would have helped the defence of the defendants, but what is lost to the defendants, by reason of the passage of time, is the opportunity for them, by their representatives, to canvass evidence from those witnesses with the assistance of proper and full records. That now cannot be done.
Notice of Pending Claims
As indicated in the findings of fact, there were a number of items of evidence which were adduced on this application on the basis that the evidence constituted some notice of the re-enlivened claims, and so the argument went, had the effect of freezing or arresting the prejudicial passage of time. The items of evidence were:
·The institution of the 1986 action which was merely discontinued not legally terminated;
·The opinion of Dr Tan as per his report in 1988 and as conveyed to the Supreme Court in the 1992 trial before Perry J; and
·The letters from the plaintiff’s solicitor Mr Peter Scerri dated in 1999.
Certainly notice of a pending claim can act to ameliorate any ongoing prejudice caused by the passage of time, but none of the above evidence does that. The 1986 action was itself out of time and in any event was discontinued 15 months later in October 1987. That event, namely the discontinuance, would have encouraged the perception that the plaintiff regarded the action against the defendants as futile. By the time Dr Tan proffered his view, Drs Watson and Rieger were no longer involved in that Supreme Court action. Why would his view therefore put them on notice? True his view must have come to the attention of Messrs Wallmans Lawyers who continued to act for the other defendant medical practitioners in the suit before Perry J. But that cannot translate into notice to the defendants. The solicitors, Messrs Wallmans Lawyers, were no longer acting for the defendants. Their knowledge cannot be imputed to the defendants. And in any event that view of Dr Tan is almost 10 years after the events complained of. Finally, the correspondence from the plaintiff’s solicitor Mr Scerri was far too late to arrest the inevitable prejudice which had long since crystallised.
Conclusion
So in my view the evidence overwhelmingly demonstrates that a fair trial in this action cannot take place.
The application by the plaintiff to extend time to institute the present proceeding is dismissed. The consequence is that the action remains statute barred.
As indicated there was also an application by the defendants to strike out the action on the ground that it was an abuse of the processes of the Court. No argument was addressed to me on this application. The defendants’ counsel all but abandoned it. I regard the end result of the application to extend time as inevitable and obvious. Therefore, I am disinclined to deal with the abuse of process argument on the basis that I may be in error.
I will hear the parties as to any consequential orders and costs.
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