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Vellar v Spandideas

Vellar v Spandideas

Case [2008] VSCA 139 7 August 2008

Limitation Periods

Negligence

Appeal

Civil Litigation & Procedure

Tort Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3809 of 2008

DOMINIC VELLAR
DOMINIC VELLAR	Applicant
v
THEA SPANDIDEAS	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	DODDS-STREETON JA and PAGONE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2008
DATE OF JUDGMENT:	7 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 139

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LIMITATION OF ACTIONS – Negligence – Medical practitioner – Personal injury – Whether limitation period had expired – When cause of action discoverable under s 27F of Limitation of Actions Act 1958 – Meaning of "fault" in s 27F(1)(b) – Whether limitation period should be extended under ss 27K, 27L.

PRACTICE AND PROCEDURE – Leave to appeal – Whether decision below attended by sufficient doubt – Whether substantial injustice.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D F R Beach SC and Mr S A O’Meara	John W Ball & Sons
For the Respondent	Mr Timothy P Tobin SC and Ms Marietta Bylhouwer	Arnold Thomas & Becker

DODDS-STREETON JA:

The applicant, Dr Dominic Vellar (the defendant below), seeks leave to appeal from a judgment given by a judge of the trial division on 6 June 2008.

The Facts

In February 1996, when the respondent, Mrs Spandideas (the plaintiff below), gave birth to her first child, an episiotomy was performed to facilitate the forceps delivery. The respondent subsequently experienced pain and difficulty with bowel motions and was referred by the applicant, Dr Vellar, a colorectal surgeon, who, on 26 April 1997 advised, and on 2 May 1997 performed, a lateral sphincterotomy to divide part of the internal anal sphincter.

Following the sphincterotomy, the respondent’s bowel problems increased and she began to experience, for the first time, faecal incontinence.

On 29 April 1997, she again consulted the applicant, who told her that the problem was a normal consequence of the sphincterotomy, which would eventually resolve.

On 3 June 1997, the respondent consulted another colorectal surgeon, Mr Tjandra, who advised and, on 6 June 1997, performed, an operation to repair the respondent’s internal and external sphincters. The respondent understood Mr Tjandra to say that the sphincter injury had been caused by the episiotomy during the birth of her child.

The respondent’s faecal incontinence did not improve and she also suffered from depression, panic attacks and ultimately, thoughts of suicide.

On 3 September 1997, the respondent consulted Slater & Gordon in relation to a potential claim.

The respondent gave birth to a second child in 1999. In June 2000, Slater & Gordon advised the respondent, whose incontinence had deteriorated, that she did not have a claim. The respondent’s mental health subsequently deteriorated and her marriage ended.

The respondent consulted a number of colorectal surgeons, including, in 2003, Professor Lobowsky, and Mr Bui. The latter, in October 2004, carried out a sphincter repair.

In May 2005, the respondent consulted new solicitors and, as a consequence, on 9 August 2006, attended a New South Wales colorectal surgeon, Mr Douglas, who informed her that the faecal incontinence had been caused by the negligence of the…

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.

Continue reading Vellar v Spandideas

Details

AGLC: Vellar v Spandideas [2008] VSCA 139
Case: [2008] VSCA 139
Decision Date: 7 August 2008

CaseChat Overview and Summary

Vellar v Spandideas involved a dispute between the plaintiff, a patient, and the defendant, a medical practitioner. The plaintiff sought damages for injuries sustained during a medical procedure, alleging that the defendant's negligence caused her injuries. The matter was before the court on an appeal from an earlier decision that dismissed the plaintiff's action on the basis that the statutory limitation period had expired. The court was required to determine whether the limitation period had indeed expired, and if not, whether the court had the discretion to extend the limitation period.

The court considered the meaning of "fault" in the context of the limitation period under s 27F of the Limitation of Actions Act 1958. The plaintiff argued that the limitation period should not start until the fault became discoverable. The court found that the plaintiff had established that the fault was not discoverable until a later date, and therefore the limitation period did not commence until then. The court also considered whether the limitation period should be extended under ss 27K and 27L of the Act. The court found that the plaintiff had not established that an extension was warranted under those sections.

The court found that the decision below was not attended by sufficient doubt to warrant leave to appeal. The court found that the plaintiff had not demonstrated a substantial injustice that would warrant an extension of the limitation period. The court held that the appeal should be dismissed.

The court did not make any orders, as the appeal was dismissed.

Orders