Waldron v O'Callaghan
[2024] VSCA 196
•10 September 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0028 |
| MARK WALDRON | Applicant |
| v | |
| CLAIRE O’CALLAGHAN | Respondent |
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| JUDGES: | FERGUSON CJ, MACAULAY JA and TSALAMANDRIS AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 July 2024 |
| DATE OF JUDGMENT: | 10 September 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 196 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1485 (Judge Tsikaris) |
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LIMITATION OF ACTIONS – Medical negligence – Allegation claim statute barred – Limitation period three years from date cause of action ‘discoverable’ – Discoverability dependent on respondent’s knowledge of applicant’s ‘fault’ – Meaning of ‘fault’ – No error in judge’s findings – Leave to appeal granted – Appeal dismissed.
LIMITATION OF ACTIONS – Extension of limitation period when just and reasonable – Factors to be considered in granting extension of limitation period – Judge correctly applied factors to be considered – Leave to appeal refused.
Limitation of Actions Act 1958, ss 27D, 27F, 27K, 27L; Limitation Act 1969 (NSW) ss 50C, 50D.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Inc v ADC (2016) 258 CLR 134; Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; State of NewSouth Wales v Gillett [2012] NSWCA 83 followed.
House v The King (1936) 55 CLR 499; Warren v Coombes (1979) 142 CLR 531; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Moore (a pseudonym) v The King [2024] HCA 30; Connelly v Transport Accident Commission [2024] VSCA 20; Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73; Spandideas v Vellar [2008] VSC 198; Moore v Escott [2022] VSC 353 considered.
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| Counsel | |||
| Applicant: | Mr ADB Ingram KC with Mr JC Plunkett | ||
| Respondent: | Mr P Over with Ms A De Souza | ||
Solicitors | |||
| Applicant: | Bowman & Knox | ||
| Respondent: | Slater & Gordon Ltd | ||
TABLE OF CONTENTS
Introduction
Relevant legislation
Relevant background
Reasons and orders of the judge
Relevant standards for determination of the proposed grounds of appeal
What was the date of discoverability? (Grounds 1–4)
What is the meaning of ‘fault’ in s 27F(1)(b)?
(a) Spandideas v Vellar
(b) Baker-Morrison v State of New South Wales
(c) State of New South Wales v Gillett
(d) Moore v Escott
Consideration
Ground 5
Ground 6
Conclusion
FERGUSON CJ
MACAULAY JA
TSALAMANDRIS AJA:
Introduction
The respondent was a patient of the applicant, who is a general practitioner. The patient is a registered nurse. On 21 December 2020, the patient commenced a proceeding in the County Court against the doctor. In her amended statement of claim, the patient alleges that the doctor was negligent in his treatment and management of her from 4 March 2005 until around 19 August 2012, when she suffered a stroke. During this period, the doctor and patient were married to each other. The patient claims damages for injuries arising out of the stroke, which she alleges were caused by the doctor’s negligence.
The doctor denies negligence. In his defence, he also pleaded that the patient’s claim was statute barred pursuant to s 27D of the Limitation of Actions Act 1958 (the ‘Act’).
In broad terms, under the Act a person who is injured through the negligence of another has 12 years from the date of the negligence to bring an action. This is referred to as the ‘long-stop provision’. The 12-year period applies unless the cause of action was discoverable by the injured person before the expiration of the 12‑year period. In that event, the limitation period is three years from the ‘date of discoverability’. Under s 27F(1) of the Act, in this case the date of discoverability was when the patient knew, or ought to have known, that:
(a)she had been injured;
(b)the injury was caused by the fault of the doctor; and
(c)her injury was sufficiently serious to justify issuing the proceeding.
Under s 27K, the court has power to extend limitation periods if it is just and reasonable to do so.
The patient applied to strike out the doctor’s limitation defence, and in the alternative sought orders that the limitation period applying to her cause of action be extended pursuant to s 27K of the Act. The application was heard by Judge Tsikaris in May 2022. The judge determined that part of the proceeding had been issued within the relevant limitation period, and granted the patient an extension of time for those aspects of the claim that would otherwise have been statute barred.[1]
[1]O’Callaghan v Waldron [2023] VCC 1485 (‘Reasons’).
The doctor seeks leave to appeal the judge’s decision. A primary issue before the judge was when the patient knew or ought to have known that her stroke was caused by the fault of the doctor. The judge accepted that this was not until sometime in 2020 when the patient’s current solicitors, Slater and Gordon, advised her of the contents of medico-legal opinions they had obtained on her behalf. The doctor contends that the judge was in error and says that the date of discoverability was before 21 December 2017 (that is, three years before 21 December 2020 when the proceeding was commenced), as the patient had the requisite knowledge of all three facts required under s 27F of the Act in late 2016 at the latest, when she inquired with solicitors Maurice Blackburn Lawyers about bringing a claim.
The other issue in the appeal relates to the judge’s decision to extend the limitation period for those parts of the patient’s claim which were statute barred by virtue of the 12‑year long-stop provision contained in s 27D(1)(b) of the Act. The doctor alleges that it was not just and reasonable for the judge to extend the limitation period.
For the reasons that follow, while leave to appeal should be granted, the appeal should be dismissed.
Relevant legislation
The provisions of the Act relevant to the determination of this appeal are as follows:
27D Limitation period for personal injury actions— general
(1)An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire—
(a)the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b)the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.
(2) This section does not apply to a cause of action that is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.
27F Date cause of action is discoverable
(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—
(a)the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2)A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3)In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4)To remove doubt, a cause of action that arises under Part III of the Wrongs Act 1958 is not discoverable before the date of death of the deceased.
27K Extension of limitation periods
(1)A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.
(2)Subject to section 27L, the court—
(a)may hear any of the persons likely to be affected by the application as it sees fit; and
(b)may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
(3)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
27L Matters to be considered in determining applications for extension of limitation period
(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2)To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b)the nature and extent of the plaintiff's loss; and
(c)the nature of the defendant's conduct.
…
Relevant background
The patient was born in October 1960 and married the doctor in March 1986.[2] Between September 1988 and December 2015, the doctor provided medical care to the patient as her general practitioner.
[2]The doctor and patient divorced in either March 2016 or March 2017.
In her amended statement of claim, the patient alleges the doctor failed to adequately manage and measure her blood pressure, cholesterol levels, and vascular risk factors, and to advise her adequately or at all that the oral contraceptive pill, which he prescribed her, increased her risk of stroke. The patient claims to have suffered injury as a result of the doctor’s negligence, particularised as stroke; impairment of balance; speech impairment; cognitive defects; and pain, suffering and distress. She claims damages for pain and suffering, medical and like expenses, gratuitous care, and loss of earnings and loss of earning capacity.
In his defence, the doctor admits that he provided some medical care to the patient, and that he prescribed her Micardis, Caduet, and the contraceptive medication Logynon. However, he denies having owed the patient a duty of care, or having been negligent in his treatment of the patient in the event that he did owe her a duty of care. The doctor alleges that the patient, as a registered nurse, insisted on taking her own blood pressure. Further, he alleges that the patient failed to follow his advice to pursue a healthy lifestyle and diet with respect to her cholesterol, in circumstances where she was intolerant of medications used to treat cholesterol. The doctor does not admit the patient’s claimed injuries, but contends that any stroke which she did suffer was not caused by arterial disease.
Before the judge, the patient accepted that the matters in ss 27F(1)(a) and (c) of the Act had been satisfied more than three years before her commencement of the proceeding. The primary issue for determination was therefore when she knew, or ought to have known, that her injury was caused by the fault of the doctor.
In an affidavit filed in support of her application, the patient initially deposed to first obtaining legal advice in respect of her potential claim in February 2019, when she consulted Slater and Gordon. This was challenged by the doctor. He had access to a joint email account he shared with the patient, and he was aware of an email the patient sent to her brother in early 2017 in which she referred to a newspaper article regarding a claim brought by Maurice Blackburn, for a plaintiff who had suffered a stroke and commenced a proceeding against his general practitioner. Based on the doctor’s knowledge of this communication, his solicitors served a subpoena on Maurice Blackburn. In answer to this subpoena, documents were produced which indicated that the patient had sought legal advice from Maurice Blackburn in late 2016.
Ms Rosita Matheson, a solicitor from Maurice Blackburn, gave evidence in relation to those subpoenaed documents, which recorded the following contact between the patient and Maurice Blackburn:
(a)On 21 November 2016, the patient spoke to a paralegal at Maurice Blackburn. The paralegal’s note of this telephone discussion referenced three complaints made by the patient in respect of the treatment she had received from the doctor (including delayed diagnosis of a melanoma, and prescription of certain medication which her cardiologist subsequently stopped). Relevantly, the following was recorded:
…
Claire’s husband was her GP for over 30 years. Claire believes that during this time her husband did not act in her best interests and that his treatment was negligent leading her to suffer a number of injuries.
…
Her husband wanted to increase her libido and gave her testosterone and prescribed oral contraceptives. At this time she had hypertension, was in her 50’s, and was over-weight. Claire says her husband should have prescribed her horone [sic] replacement therapy not oral contraceptives.
19 August 2012 - suffers thrombotic stroke. Believes this was caused by oral contraceptives that she was being prescribed by her husband. Saw a neurologist [Associate Professor Carne] who took her off the oral contraceptives, suggested that these may be the cause as there are no other causes.
…
Explained MN elements and injury thresholds in Victoria.
Explained SoL in Victoria (adults: 3 years from date negligence is discovered).
(b)On 22 November 2016, Ms Matheson discussed the patient’s enquiry with Maurice Blackburn partner Tom Ballantyne. Her note of this day included the following reference:
-stroke – is due to oral contraceptives?
(c)On 30 November 2016, Ms Matheson had a telephone discussion with the patient. Ms Matheson was unable to independently recall this conversation, and gave oral evidence based upon her contemporaneous handwritten note, which she transcribed prior to giving evidence. Ms Matheson’s note records that she gave the patient some preliminary advice, including that it may be difficult to connect the treatment the patient received with her injury. Ms Matheson’s note of this attendance records that she advised the patient of a three year limitation period.
(d)On 9 December 2016, Ms Matheson had a further telephone discussion with the patient. Again, Ms Matheson could not independently recall this conference and relied upon her contemporaneous note, which records that she had reiterated to the patient the difficulties with the claim, including the difficulties she could face linking the treatment by the doctor to her injury. Ms Matheson said that she advised the patient of her ability to complain about the treatment to the Australian Health Practitioner Regulation Agency. Ms Matheson stated that she referred people to this agency if there was no apparent causal link in the potential claim.
(e)From 31 January 2017 to 3 April 2017, Maurice Blackburn attempted to arrange an appointment for the patient to meet with a more senior lawyer, but the patient did not attend. There was no further communication between Maurice Blackburn and the patient after 3 April 2017.
The patient also gave evidence and was cross-examined. The patient repeatedly said that she could not recall such interactions with Maurice Blackburn, but did not take issue with what was recorded in the file notes.
Also in evidence at the hearing was an affidavit from the patient’s solicitor Ms Brighdin Walsh, which detailed the steps undertaken by Slater and Gordon to investigate the merits of the patient’s possible claim. These steps included obtaining her records from Medicare and the Pharmaceutical Benefits Scheme, as well as her clinical records from the patient’s treating practitioners including Grovedale Medical Centre, where the doctor carried on medical practice. Ms Walsh additionally deposed to opinions she had obtained from general practitioner Dr James Lynch, on 17 February 2020 and 1 September 2020, which were to the effect that the standard of medical treatment and care provided by the doctor to the patient fell short of the standard reasonably expected of a general practitioner. Further, on 25 November 2020, Ms Walsh obtained an opinion from neurologist Professor Peter Hand, to the effect that the alleged medical treatment was a cause of the patient’s stroke. We will refer to the opinions provided to Ms Walsh by Dr Lynch and Professor Hand as the ‘medico-legal opinions’. It was at this time that Ms Walsh advised the patient that she had a proper basis to institute proceedings, and accordingly she sought the patient’s instructions to commence a proceeding.
The patient deposed that it was not until she was informed by Slater and Gordon of the medico-legal opinions that she knew the doctor was at fault.
In addition to the evidence outlined above, voluminous clinical records relating to the patient were tendered, including her admissions to the Geelong Clinic on two occasions in 2015, and to Epworth Hospital on 12 occasions between 29 November 2016 and 15 September 2020.
Reasons and orders of the judge
The judge summarised the evidence and then stated that she accepted that the effect of the patient’s evidence was that before her solicitors’ receipt of the medico-legal opinions, she did not know that the doctor’s fault had played a role in causing her stroke.[3] While the judge considered that the patient ‘may have had a belief or suspicion’ before this, this was ‘more a grievance than knowledge of the fact’.[4]
[3]Reasons, [61].
[4]Ibid.
The judge referred to numerous authorities which had considered the meaning of the term ‘fault’ in s 27F(1)(b) of the Act, including decisions by judges of the Trial Division of this Court in Spandideas v Vellar,[5] and Moore v Escott,[6] as well as the New South Wales Court of Appeal decision of State of New South Wales v Gillett.[7] Applying the test outlined in Gillett (and accepted in Moore v Escott), the judge concluded that, prior to the medico-legal opinions being obtained, the patient ‘did not have knowledge of the key factors necessary to give rise to liability’ so as to satisfy the requirements of s 27F(1)(b).[8]
[5][2008] VSC 198 (‘Spandideas’).
[6][2022] VSC 353.
[7][2012] NSWCA 83 (‘Gillett’).
[8]Reasons, [61].
Relevant to the above finding, the judge referred to the patient’s consultation with Associate Professor Ross Carne in August 2012, when he took her off the contraceptive pill.[9] The judge stated that, ‘given the patient’s state of health at the time, I cannot be satisfied that she knew that the effect of any advice from [Associate] Professor Carne pointed to knowledge that the stroke was as a result of fault on the part of the [doctor]’.[10]
[9]Ibid [71].
[10] Ibid.
The judge accepted the patient’s submissions that records from Maurice Blackburn were consistent with a finding that she had been provided with generic and preliminary advice, with no evidence of written advice (including advice as to the long-stop provision), and no investigations commissioned.[11] Accordingly, the judge was satisfied that the consultations with Maurice Blackburn did not constitute legal advice which was sufficient to give the patient knowledge of the factors necessary to give rise to a cause of action.[12] Later in the judgment, the judge expressly stated that the patient’s meetings with Maurice Blackburn evidenced that, at the time, she ‘merely had a belief or suspicion rather than an established knowledge that she had a claim against the [doctor]’.[13]
[11]Ibid [61], [64]–[66].
[12]Ibid [65].
[13]Ibid [72].
Having found that the patient did not have actual knowledge of fault until the time she was advised of the medico-legal opinions, the judge then considered whether the patient ought to have known of fault at an earlier time. In doing so, the judge referred to the medical records produced by the patient, and specifically noted multiple hospital attendances between November 2016 and November 2017. The judge considered it to be clear that, at or around the time she was consulting Maurice Blackburn, the patient was ‘under significant physical and mental stressors’ which explained her inability to recall the attendances.[14] The judge referenced three specific notes of Dr Singh (a psychiatrist who had treated the patient) from the period March 2015 until November 2015, where he had commented on the patient’s lack of memory. In view of these records and her findings, the judge concluded that the patient had not been ‘in a position to take reasonable steps to establish fault’ on the part of the doctor until she consulted Slater and Gordon in February 2019.[15] Accordingly, the judge concluded that those parts of the patient’s proceeding which related to acts or omissions after 21 December 2008 were within time.
[14]Ibid [69].
[15]Ibid [70].
The judge then considered the patient’s application for an extension of time in respect of any acts or omissions of the doctor before 21 December 2008 (that being the limitation date that would otherwise apply as a result of the long-stop provision). The judge referred to numerous principles and authorities relevant to the decision to grant or refuse an extension of time,[16] and then referred to the relevant factors identified in s 27L(1) of the Act.
[16]Bell v SPC Limited [1989] VR 170, 174 (Young CJ, Kaye and Southwell JJ); Tsiadis v Patterson (2001) 4 VR 114, 116 [5] (Callaway JA), 123–4 [33] (Buchanan JA); [2001] VSCA 138; Hunt v Holcombe [2018] VSCA 248, [49], [51] (Beach, Kaye and Niall JJA); Koumorou v State of Victoria [1991] 2 VR 265, 271 (Brooking J); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 554–5 (McHugh J); [1996] HCA 25; WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639, [204] (Keogh J); Prince Alfred College Inc v ACD (2016) 258 CLR 134, 164–5 [99]–[100] (French CJ, Kiefel, Bell, Keane and Nettle JJ); [2016] HCA 37; Clark v McGuinness [2005] VSCA 108, [39] (Warren CJ); Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, 225 [91] (Ipp AJA); [2002] NSWCA 104. See Reasons, [75]–[83], [87].
In respect of the reasons for the delay,[17] the judge again noted the patient’s poor mental and physical health. The judge did not accept the doctor’s submission that the patient had made a deliberate decision not to pursue a claim at the time she consulted with Maurice Blackburn.[18] The judge considered that, given the patient’s ‘ill health, particularly her mental health, her abuse of alcohol, the death of her father and resultant grief and the marital stress she was under, together with the effects of the stroke, her failure to follow up with Maurice Blackburn is explicable’.[19]
[17]The Act, s 27L(1)(a).
[18]Reasons, [95], [107].
[19]Ibid [95].
The judge found the patient to be a credible and honest witness.[20] She considered the patient’s frequent hospital admissions and persisting health problems at and around the time of her communications with Maurice Blackburn provided an adequate explanation as to her absence of memory.
[20]Ibid [97].
In respect of prejudice which would be suffered by the doctor were an extension of the limitation period to be granted,[21] the judge noted that medical records from the doctor’s medical clinic were available, and that no specific prejudice had been alleged. The judge acknowledged that there was potential general prejudice which would arise from an extension being granted. However, the judge considered that with ‘plentiful records’ and witnesses available, a fair trial was available,[22] and that this general prejudice did not weigh against the granting of an extension.[23]
[21]The Act, s 27L(1)(b).
[22]Reasons, [106].
[23]Ibid [106]–[107].
The judge concluded that having undertaken the ‘necessary synthesis of all the competing considerations’, it was just and reasonable to grant the patient an extension of time to rely on any acts or omissions of the doctor which occurred prior to 21 December 2008.[24]
[24]Ibid [109].
Further, in the event that she was wrong on the date of discoverability, the judge stated that she would otherwise have granted the patient an extension of time for the entire cause of action, for the same reasons as those articulated in respect of the extension of time required as a consequence of the long-stop provision.[25]
[25]Ibid [110].
Orders were made striking out the doctor’s limitations defence and, pursuant to s 27K of the Act, extending the limitation period for the patient’s causes of action as pleaded to 21 December 2020. Ancillary cost orders were also made.
Relevant standards for determination of the proposed grounds of appeal
Grounds 1 to 4 of the doctor’s proposed grounds of appeal relate to the judge’s finding as to the date of discoverability pursuant to s 27F(1) of the Act; specifically when the patient knew or ought to have known of the fact that her claimed personal injury was caused by the fault of the doctor.
The parties agreed that the applicable standard for appellate review of a decision made pursuant to s 27F(1) of the Act is the ‘correctness standard’ identified in Warren v Coombes.[26] In such appeals, the ‘duty of the appellate court is to decide the case — the facts as well as the law — for itself’.[27] Then, in the event that ‘the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it’.[28]
[26](1979) 142 CLR 531; [1979] HCA 9.
[27]Ibid 552 (Gibbs ACJ, Jacobs and Murphy JJ).
[28]Ibid 553 (Gibbs ACJ, Jacobs and Murphy JJ).
Grounds 5 and 6 of the doctor’s proposed grounds of appeal relate to the judge’s decision to grant the patient an extension of time, pursuant to s 27K of the Act. The doctor submitted that the Warren v Coombes correctness standard was the applicable standard for appellate review of a decision made pursuant to s 27K, in light of the High Court’s recent decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.[29]
[29](2023) 414 ALR 635; [2023] HCA 32 (‘GLJ’).
The patient submitted that, as the decision to extend time is based on the exercise of a discretion, the applicable standard of appellate review was that specified in House v The King.[30] In such appeals, an applicant is required to establish that the decision was infected by specific error because the judge acted upon a wrong principle, mistook the facts, took into an account an irrelevant matter or failed to take into account a relevant consideration.[31] Alternatively, if the decision is unreasonable or plainly unjust then the Court may infer that there was a failure to properly exercise the discretion.[32]
[30] (1936) 55 CLR 499; [1936] HCA 40 (‘House’).
[31]Ibid 505 (Dixon, Evatt and McTiernan JJ).
[32]Ibid.
GLJ involved an appeal from an order of a court permanently staying proceedings on the ground that the trial would be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process. The High Court held that the correctness standard applied on appeal. The Court stated that the exercise of power by a court to permanently stay a proceeding involved an evaluative process but admitted of only one uniquely correct answer to the question whether a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process.[33] The plurality contrasted a judicial decision of this kind to a discretionary decision, where more than one answer is legally open and upon which reasonable minds might differ.[34]
[33]GLJ (2023) 414 ALR 635, 642 [17] (Kiefel CJ, Gageler and Jagot JJ, Gleeson J agreeing at 678 [161]).
[34]Ibid 642 [16], 646 [26] (Kiefel CJ, Gageler and Jagot JJ, Gleeson J agreeing at 678 [161]).
Following GLJ, in Connelly v Transport Accident Commission,[35] this Court considered the relevant standard of appellate review in an appeal from a County Court judge’s decision in a serious injury application. The judge had refused to grant a plaintiff leave to commence a common law proceeding pursuant to s 93(4)(d) of the Transport Accident Act 1986, on the basis that the plaintiff’s claimed circumstances did not satisfy the definition of ‘serious injury’. Applying the reasoning of the plurality in GLJ, the Court noted that a decision as to whether or not the plaintiff satisfied the definition of serious injury was an evaluative one with only one legally permissible answer. Consequently, the correctness standard of appellate review applied.[36]
[35][2024] VSCA 20.
[36]Ibid [38] (Beach, Niall JJA and J Forrest AJA). In reaching this conclusion, the Court reversed the position it had long taken since Mobilio v Balliotis [1998] 3 VR 833.
In Trustees of the Christian Brothers v DZY (a pseudonym),[37] this Court considered an appeal from a decision of an associate judge to set aside two previous settlement agreements in a personal injury action arising out of historical child sexual abuse, pursuant to ss 27QD and 27QE of the Act. One of the issues requiring determination by the Court was the applicable standard of appellate review. The Court considered the decisions of Warren v Coombes, House and GLJ. It then considered the context of ss 27QA–27QF of the Act and the purpose of those provisions, which was to allow certain actions arising from child abuse to be brought, despite the expiry of a limitation period, or a prior judgment or settlement agreement. In relation to s 27QE(1), a settlement agreement may be set aside, in whole or part, if the court is satisfied that it is just and reasonable to do so.
[37][2024] VSCA 73 (‘DZY’).
In determining which standard of review applied, the Court considered it useful ‘to consider the wider context of the power conferred by s 27QE of the Act in a way that is analogous to the High Court’s approach in GLJ with respect to the power to grant a permanent stay of a proceeding’.[38] The Court noted that it was not a mere gateway, but rather a strict legal rule, which, if satisfied, will require that the settlement be set aside.[39] The Court also observed that it was a question ‘that leads to binary outcomes … either it is just and reasonable that the parties should not be bound by a previous judgment or settlement, or it is not’.[40] Accordingly, the Court held that the correctness standard applied to s 27QE of the Act.
[38]Ibid [89] (Beach and Macaulay JJA, Lyons JA agreeing with the analysis as to the applicable standard of review at [154]).
[39]Ibid [94] (Beach and Macaulay JJA).
[40]Ibid [96] (Beach and Macaulay JJA.
More recently, in Moore (a pseudonym) v The King,[41] the High Court held that this Court was required to apply the correctness standard of appellate review in an interlocutory appeal concerning a trial judge’s refusal to exclude evidence under s 137 of the Evidence Act 2008. That section provides that ‘[i]n a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused’. The High Court observed that this requires three evaluative assessments to be made: first, the weight of the probative value of the evidence, second, the extent of any danger of unfair prejudice, and third, a comparison of one with the other.[42] The High Court held that there can only be one correct answer resulting from this process.[43] As a consequence, when considering an appeal from a ruling about the exclusion of evidence under s 137, the appellate court must do so on the basis of the correctness standard.[44]
[41][2024] HCA 30 (‘Moore v The King’).
[42]Ibid [18] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).
[43]Ibid.
[44]Ibid.
We accept the parties’ position that in respect of grounds 1–4 the correctness standard applies. The critical question for determination is, what was the date of discoverability? There can only be one answer to that question.
As we have said, the doctor submitted that the same standard of appellate review should apply to grounds 5 and 6, which concern the judge’s decision to grant an extension of the limitation period under s 27K(2)(b) of the Act. It was noted that this section and s 27QE(1) (which was the subject of this Court’s decision in DZY) involved judicial power being exercised following a decision that it was ‘just and reasonable’ to do so. The doctor emphasised that it would be incongruous for an expression which appears twice in the same Act to permit one legally permissible outcome in one instance, and a range of possibilities with a different standard of appellate review in the other.
In respect of s 27K(2)(b) of the Act, the power to extend time has long been categorised as a discretionary decision. In BrisbaneSouth Regional Health Authority v Taylor,[45] and later in Prince Alfred College Inc v ADC,[46] the High Court considered appeals in relation to an extension of a limitation period. In both cases, the Court accepted that the applicable standard of appellate review was that outlined in House. The statutory provision considered in Brisbane South empowered the court to extend the period of limitation if two preconditions were satisfied.[47] The High Court held that once the two preconditions were satisfied, the court had a discretion to extend time and that discretion should only be exercised if justice was best served by doing so.[48] In Prince Alfred College, the relevant section provided that the limitation period could be extended if the court was satisfied that the action was instituted within 12 months after the ascertainment by the plaintiff of facts material to the plaintiff’s case, and that ‘in all the circumstances of the case [it was] just to grant the extension of time’.[49] The High Court observed that the power to extend was discretionary.[50]
[45](1996) 186 CLR 541; [1996] HCA 25 (‘Brisbane South’).
[46](2016) 258 CLR 134; [2016] HCA 37 (‘Prince Alfred College’).
[47]Limitation of Actions Act 1974 (QLD) s 31(2).
[48]Brisbane South (1996) 186 CLR 541, 544 (Dawson J), 547 (Toohey and Gummow JJ), 551 (McHugh J).
[49]Limitation of Acts Act 1936 (SA) s 48.
[50]Prince Alfred College (2016) 258 CLR 134, 141 [4] (French CJ, Kiefel, Bell, Keane and Nettle JJ).
While the language in the statutes considered in those cases is not identical to the provision with which we are concerned, those decisions cannot be ignored. Indeed it is difficult to distinguish them. Neither was reversed in GLJ or Moore v The King. Unless and until that occurs, in our opinion we should follow Brisbane South and Prince Alfred College.
It follows that in grounds 5 and 6 of this appeal, the doctor must establish specific error by the judge in the making of the decision, or that the decision was plainly wrong, unreasonable, or unjust.
What was the date of discoverability? (Grounds 1–4)
In his first four proposed grounds of appeal, the doctor alleges that the judge erred in making the following findings:
(a)The patient did not have knowledge of the key factors necessary to give rise to liability of the doctor prior to her solicitors’ receipt of the medico-legal reports;
(b)The patient was not in a position to take reasonable steps to establish fault on the part of the doctor between late 2016 and February 2019;
(c)That the judge was not satisfied that the patient knew the effect of any advice from Associate Professor Carne pointed to knowledge that the stroke was as a result of fault on the part of the doctor; and
(d)The patient merely had a belief or suspicion rather than established knowledge that she had a claim against the doctor prior to the receipt by her solicitors of the medico-legal reports.
The doctor submitted that these findings were either contrary to the evidence, or in respect of matters of which there was no evidence. These findings, and the proposed grounds, concern the date of discoverability for the patient’s cause of action and specifically when the patient knew, or ought to have known, that her injury was caused by the fault of the doctor in relation to s 27F(1)(b) of the Act.
What is the meaning of ‘fault’ in s 27F(1)(b)?
Since the introduction of Part IIA of the Act in 2003, the meaning of the word ‘fault’ in s 27F(1)(b) has been considered at trial level in Victoria, and the equivalent provision has been considered at appellate level in New South Wales. As this is the first occasion that the provision has been considered by this Court, we consider it helpful to briefly summarise these cases, and the construction we consider should be applied to the term ‘fault’.
(a)Spandideas v Vellar
In Spandideas, Kaye J (as he then was) was required to determine and apply the meaning of the term ‘fault’ in a medical negligence proceeding. In that case, the plaintiff suffered bowel problems following an episiotomy, performed on her after childbirth in February 1996. In May 1996, the defendant, a colorectal surgeon, performed a sphincterotomy on the plaintiff. Thereafter, the plaintiff’s bowel problems worsened. The plaintiff did not issue her damages proceeding until 2007.
The plaintiff claimed that by virtue of s 27F(1)(b) of the Act, the proceeding was not statute barred. She urged the Court to give the term ‘fault’ its ordinary meaning, which was said to involve a concept of culpability. The defendant submitted that on its proper construction, ‘fault’ in s 27F(1)(b) meant ‘act or omission’ of the defendant.
After considering the legislative history of the section, and having regard to the Macquarie Dictionary definition of ‘fault’, Kaye J held:
The meaning of ‘fault’ is plain and unambiguous, both in ordinary parlance, and in its context in Part 2A of the Act. Its usual everyday meaning connotes culpability or blameworthiness. In particular, where injury or damage is said to be the result of the ‘fault’ of another person, ordinarily such an accusation would involve the attribution of a degree of culpability or blame on behalf of the person who caused the damage.[51]
[51]Spandideas [2008] VSC 198, [32] (Kaye J). Subsequently adopted in Tucker v Barwon Health [2008] VSC 229, [73] (Kyrou J); Delai v Western District Health Service [2009] VSC 151, [15] (Beach J); GGG v YYY [2011] VSC 429, [213] (Osborn J); Donmez v Neissa [2012] VSC 73, [26] (Kaye J).
Applying that construction to the facts as Kaye J found them, his Honour was satisfied that it was not until the plaintiff was advised by a medico-legal doctor in August 2006 that she understood the defendant should not have undertaken the sphincterotomy, or that he should have done something different during the surgery, and her injury was a result of this.[52]
[52]Spandideas [2008] VSC 198, [58] (Kaye J).
In respect of whether the plaintiff ought to have known at an earlier time that her injury had been caused or contributed to by the ‘fault’ of the defendant, Kaye J held that this was to be assessed subjectively, with regard to the plaintiff’s actual knowledge and capacity, stating:
It would be entirely artificial, and indeed well nigh intellectually impossible, to assess what a person ‘ought to know’, without taking into account such subjective factors as the age, characteristics, the education, and physical and psychological state of the plaintiff.[53]
[53]Ibid [65] (Kaye J).
Justice Kaye did not consider that the plaintiff had failed to take all reasonable steps to ascertain the cause of her condition or her rights against the defendant before August 2006. In respect of this, his Honour noted that the plaintiff had been advised by her previous solicitors in 2000 that she did not have an actionable claim,[54] and accepted her evidence that she was not informed of any information in the interim which might have alerted her to a potential claim.[55]
[54]Ibid [66] (Kaye J). Whilst the plaintiff’s former solicitors made further investigations until November 2001, including obtaining counsel’s advice that ‘to issue proceedings in this case would be very risky’, the plaintiff denied knowledge of any investigations following the 2000 advice, due in part to her fragile psychological state, including a suicide attempt in October 2000.
[55]Ibid [66]–[67] (Kaye J).
In light of such findings, Kaye J held that the plaintiff’s cause of action had not been ‘discoverable’ pursuant to s 27F of the Act prior to August 2006, and consequently the proceeding was not barred by s 27D(1) of the Act.[56]
(b)Baker-Morrison v State of New South Wales
[56]On appeal, it was held there was no error in Kaye J’s decision in the alternative to grant an extension of time, and therefore it was not necessary for the Court to reach a conclusion as to the correctness of the construction of the term ‘fault’: see Vellar v Spandideas [2008] VSCA 139, [65] (Dodds-Streeton JA, Pagone AJA agreeing at [68]).
In New South Wales, the substantially equivalent provision to s 27F of the Act is contained in s 50D of the Limitation Act 1969 (NSW) (the ‘NSW Limitation Act’). The meaning of the term ‘fault’ in s 50D(1)(b) was considered by the New South Wales Court of Appeal in Baker-Morrison v State of New South Wales.[57] In that case, the plaintiff was injured at the age of two, when on 26 May 2004, her finger was caught in sliding doors at a police station. The proceeding was issued on her behalf by her mother, 3 years and 26 days after the injury was suffered. The claim was struck out at first instance as being statute barred.
[57](2009) 74 NSWLR 454; [2009] NSWCA 35 (‘Baker-Morrison’).
The issue for determination was when the plaintiff’s mother knew, or ought to have known, that the plaintiff’s injury was caused by the fault of the defendant. The plaintiff’s mother had sought legal advice the week following her daughter’s injury, on 1 June 2004. The plaintiff’s solicitor gave evidence that he had attended the police station on 4 June 2004 and observed that a device had been installed at the base of the door, which he inferred was intended to diminish or eliminate the risk of injury of the kind suffered by the plaintiff. However, the solicitor did not convey this information to the plaintiff’s mother.
In granting the plaintiff’s appeal, Basten JA (Ipp JA and Macfarlan JA agreeing) held that a cause of action is ‘discoverable’, when the relevant person has either ‘actual’ or ‘constructive’ knowledge of each of the three identified facts contained in s 50D(1) of the NSW Limitation Act.[58]
[58]Ibid 461 [25] (Basten JA, Ipp JA agreeing at [1], Macfarlan JA agreeing at [63]). The Victorian equivalent is s 27F(1) of the Act.
In relation to the knowledge of ‘fault’ required under s 50D(1)(b)[59] for a cause of action to be discoverable, his Honour stated:
… there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to establish legal liability which must be known.[60]
[59]The Victorian equivalent is s 27F(1)(b) of the Act.
[60]Baker-Morrison (2009) 74 NSWLR 454, 464 [39] (Basten JA) (emphasis added); [2009] NSWCA 35.
Justice Basten held that, in all probability, the plaintiff’s mother did not at any stage within the relevant period have actual knowledge of the fact that her daughter’s injury was caused by the fault of the defendant.[61] The test for this requirement was formulated by his Honour in the following terms:
Until the plaintiff’s mother was aware (or ought to have been aware) of the availability and reasonable practicability of installation of such a device, she could not be said to be aware that her daughter’s injury was caused by a failure on the part of the State to take reasonable care for her safety.[62]
[61]Ibid 465 [46] (Basten JA).
[62]Ibid 464 [40] (Basten JA).
In relation to whether the plaintiff’s mother had constructive knowledge[63] of the requisite elements of s 50D(1) of the NSW Limitation Act, his Honour made the following observations concerning the evaluative approach required of the court:
In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking “all reasonable steps”…
The phrase “ought to have known” can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, “should” connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression “ought to know” was identified by reference only to what the putative plaintiff “would” have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word “would” (rather than “should”) is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice.[64]
[63]That is when the person ‘ought to have known’. See Limitation Act 1969 (NSW) s 50D(2). The Victorian equivalent is s 27F(2) of the Act.
[64]Baker-Morrison (2009) 74 NSWLR 454, 467–468 [58]–[59] (Basten JA); [2009] NSWCA 35.
It was not suggested that in the 26-day period after the accident, the plaintiff’s mother should reasonably have taken any step which she did not take. Therefore, Basten JA held that she did not have the requisite knowledge, and the State failed in its limitation defence.
(c)State of New South Wales v Gillett
The correctness of the decision in Baker-Morrison, was affirmed in the subsequent New South Wales Court of Appeal decision in Gillett. The respondent in that case, a former senior member of the New South Wales Police Service, had commenced proceedings against the State of New South Wales in October 2008, claiming damages for psychiatric injury which he alleged had arisen out of an internal inquiry into his conduct and subsequent criminal charges which were ultimately withdrawn. During his criminal trial in June 2004, the prosecution’s case collapsed following the conclusion of the evidence of the first witness, after material was shown to him in cross-examination which the Director of Public Prosecutions did not have in its possession at the time it advised that there was sufficient evidence to charge the respondent. After this, the prosecutor informed the court that there was no evidence capable of establishing a prima facie case and an acquittal was sought. In his proceeding, the respondent alleged a breach of statutory duty for the failure of the Police Service to disclose the material to the Director of Public Prosecutions.
In April 2005, the respondent sought legal advice as to the merits of a potential claim. Counsel was subsequently briefed, and in July 2005, that counsel advised the respondent that there were no reasonable prospects of success in respect of a claim for malicious prosecution.
An internal investigation was conducted by the Police Service into the respondent’s complaint regarding the conduct of the investigation and prosecution against him. In mid-2007, the respondent was informed that the investigation had concluded, and that the respondent’s complaint could not be sustained.
In March 2008, the respondent spoke to a different solicitor, his neighbour, regarding his potential claim. The pair consulted counsel in April 2008, who provided preliminary advice in September 2008, and further advice in October 2008 that the respondent had a reasonably arguable civil claim for damages. The respondent’s statement of claim was filed shortly after that advice was given.
In its defence, the State pleaded that the respondent’s claim was statute barred because it was commenced after the expiration of the limitation period prescribed in ss 50C[65] and 50D of the NSW Limitation Act. The respondent filed a motion seeking an order that the State’s limitation defence be struck out. Barr AJ made orders striking out the limitations defence. The State appealed the decision.
[65]The Victorian equivalent is s 27D of the Act.
The relevant question before the New South Wales Court of Appeal was whether the respondent’s cause of action had been brought more than three years from the date on which it had been discoverable by the respondent, which in turn required determination of the meaning of the word ‘fault’. As the applicant sought to challenge the correctness of Baker-Morrison, the appeal was heard by a bench of five judges.
In dismissing the State’s appeal, Beazley JA (with whom McColl, Campbell, Young and Whealy JJA relevantly agreed) confirmed the test for discoverability articulated in Baker-Morrison, requiring knowledge by the plaintiff of the key factors necessary to establish legal liability.[66] This includes knowledge of fault of the defendant, who may not be the actual wrongdoer, but, instead, be liable because of the operation of particular legal rules.[67] In so holding, Beazley JA observed that the point in time when the plaintiff knows their matter is legally actionable will depend upon the relevant facts and circumstances.[68] In stating this, her Honour noted that application of the construction given to the term ‘fault’ in Baker-Morrison ‘may not always be straightforward’.[69]
[66]As outlined above at [58].
[67]Gillett [2012] NSWCA 83, [94]–[95] (Beazley JA, McColl JA agreeing at [112], Campbell JA agreeing at [113], Young JA agreeing at [132], Whealy JA agreeing at [133]).
[68]Ibid [97] (Beazley JA).
[69]Ibid [98] (Beazley JA).
Justice Beazley agreed with the meaning of constructive knowledge for the purpose of s 50D(2) of the NSW Limitation Act, as stated by Basten JA in Baker-Morrison. Her Honour noted that this was an objective test, and required a determination by the court:
… whether a fact within the meaning of s 50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court’s determination of what were reasonable steps to take in the particular circumstances of a given case.[70]
[70]Ibid [104] (Beazley JA).
Justice Beazley accepted the respondent’s submission that, while he may have had a suspicion that he had a legal remedy (after the criminal trial) and wanted to know whether he had a legal remedy, this was different from establishing that the respondent knew that the State was legally liable, in the sense of there being an actionable claim against it, at any prior point in time.[71] It was noted that the respondent had previously been advised that there was nothing he could legally do. Her Honour was satisfied that the date of discoverability did not occur until the respondent received the further advice in October 2008 that the State was legally liable.[72]
(d)Moore v Escott
[71]Ibid [105]–[106] (Beazley JA).
[72]Ibid [109]–[110] (Beazley JA).
The above authorities were subsequently considered by O’Meara J in Moore v Escott. In that case, the plaintiffs were the mother and father of a son born in September 2007 with significant cardiac and other abnormalities. Prior to the birth, in March 2007 the mother underwent an obstetric ultrasound which she alleged showed abnormalities in the measurement of nuchal translucency. The plaintiffs claimed that if properly advised, the mother would have terminated the pregnancy. Proceedings for the mother were not issued until 27 September 2018.[73] The mother claimed that it was not until she was notified by her lawyer in late August 2018 of the opinion of an obstetrician and gynaecology expert, that she was aware that a nuchal translucency reading of 11 mm (which was recorded following the March 2007 ultrasound) was abnormally high, and that her son’s abnormalities should have been detected in a further ultrasound performed in May 2007, and/or warranted repeat investigations. The defendants alleged that the proceeding was statute barred. The mother sought a declaration that her cause of action was discoverable no earlier than 28 September 2015.
[73]The father was joined as the second plaintiff on 16 March 2020. It was conceded that his claim was statute barred and he sought an extension of time pursuant to s 27K of the Act. As O’Meara J was not satisfied it was just and reasonable to do so, the second plaintiff’s application for an extension of time was refused.
His Honour considered the authorities referred to above, and ultimately concluded that he should accept the construction approved in Gillett.[74] However in doing so, O’Meara J observed that ‘in most if not all cases the practical difference between the approaches in Spandideas and Gillett are unlikely to be significant’.[75]
Consideration
[74]Moore v Escott [2022] VSC 353, [66] (O’Meara J).
[75]Ibid [67] (O’Meara J).
The same can be said in this appeal. Whether the knowledge of ‘fault’ in s 27F(1)(b) of the Act required the respondent to know the key factors necessary to establish legal liability for the doctor, or just that his acts or omissions carried a degree of culpability or blameworthiness for her stroke, we consider — for the reasons that follow — that the judge was correct to find that the date of discoverability occurred within three years of the proceeding being issued.
Section 50D(1) of the NSW Limitation Act is in substantially identical terms to s 27F of the Act.[76] There is obvious benefit in such similar statutory provisions being interpreted in the same way.
[76]Whilst the terms are substantially identical, it is worth noting that under the NSW Limitation Act, there is no power of a court to extend a limitation period once it has expired. In our view this point of distinction between the two Acts does not alter the construction of the term ‘fault’. The parties in this appeal did not contend otherwise.
In this regard, we agree with the reasoning of Basten JA in Baker-Morrison, and Beazley JA in Gillett. Neither party submitted that we should decide otherwise, and both made submissions on the basis that the construction adopted in Gillett (and applied by O’Meara J in Moore v Escott) should apply here.
We note that the meaning of ‘fault’ argued and adopted in Baker-Morrison was not advanced at the time Spandideas was decided. It would seem to us that if it had been, and the Court had accepted and applied that construction, the result in that case would have been the same. That is, it was when the plaintiff was informed of the medico-legal doctor’s opinion that she was first aware she had an actionable claim against the defendant for her injury.
Here, the doctor submitted that if the Court was to dismiss this appeal, it would effectively be saying that knowledge of ‘fault’ in s 27F(1)(b) of the Act could only be met following the receipt by a plaintiff of cogent and relevant medico-legal evidence. It was put that if this was to be the Court’s preferred interpretation, then it should directly say so. Such a proposition demonstrates a misunderstanding and oversimplification of the meaning of the term ‘fault’ applied in Gillett.
The relevant question is when the patient knew, or ought to have known, of the key factors necessary to establish that the matter was legally actionable. What constitutes such knowledge will depend on the facts of the particular case, and the specific circumstances of the relevant party.
In Spandideas and Moore v Escott, knowledge of fault occurred upon receipt by the plaintiffs of medico-legal opinions. In Gillett, there was knowledge of fault when the plaintiff received legal advice, as it was accepted that a person could not be expected to know that a failure by a police officer to provide all material documents to the Director of Public Prosecutions was likely to be legally actionable against the State.
Some cases may turn on the provision of such opinions, others may not. Sometimes the fault of the defendant will be obvious and straightforward. In other cases, the plaintiff will have sufficient knowledge to enable them to know of the fault of the defendant without the need to make any enquiries. There is no one-size-fits-all answer. The date upon which the plaintiff has knowledge of the three facts required under s 27F of the Act will depend on the facts and circumstances of the particular case.
Grounds of appeal 1, 3 and 4 concern the judge’s findings of fact as to what the patient knew when she contacted Maurice Blackburn. The doctor relied on the knowledge the patient had as a result of her nursing studies. In particular, the doctor submitted that the patient’s training as a registered nurse (together with a Masters degree in Bioethics and her work as a lecturer in ethics to post-graduate medical students) was such that she was in a position to have sufficient knowledge of the key factors necessary to establish legal liability, before 21 December 2017. The doctor submitted that she had clear knowledge of the cause of her stroke from 2012 when she consulted Associate Professor Carne. The doctor submitted that this knowledge was evident because she was able to tell Maurice Blackburn exactly what her case was on 21 November 2016. The doctor submitted that the judge erred in finding that she only had a belief or suspicion, and not knowledge of fault at that time.
There was no such error by the judge. Her Honour expressly referred to the authorities cited above, and found that when the patient contacted Maurice Blackburn she had no actual knowledge, but rather a grievance, suspicion and belief that her husband was in some way responsible. The judge was correct to do so.
The evidence of Ms Matheson and the records of Maurice Blackburn reinforced the judge’s findings concerning the patient’s state of knowledge at that time — it was suspicion, and nothing more.
Before the judge, the patient was not cross-examined about whether her training and education as a nurse gave her the requisite knowledge of the key factors necessary to establish fault. We also note that such a submission was not advanced before the judge. In any event, while knowledge obtained from nursing qualifications (and possibly bioethics) may well give rise to a suspicion of the key factors necessary to establish liability, that is not the same as knowledge of fault. As noted above, consistent with the approach taken in Gillett (and Spandideas), without more, a plaintiff’s suspicion does not equate to the requisite knowledge of fault.
The same can be said in relation to the treatment the patient received from Associate Professor Carne in 2012, when he advised her to stop taking oral contraceptives. While this may have raised a suspicion in the patient’s mind, it was not knowledge of the key factors necessary to establish legal liability against the doctor.
The same can also be said in relation to the newspaper article which the patient shared with her brother, via the parties’ joint email account. While this article attracted the patient’s attention, it related to a male plaintiff who had suffered a stroke, and did not detail any particulars of negligence giving rise to the claim. This email correspondence does not demonstrate the patient having knowledge of fault on the part of the doctor.
For those reasons, the judge was correct in her finding that the patient did not know her injury was caused by the fault of the doctor prior to 21 December 2017.
The second ground of appeal concerns whether the patient ought to have known at an earlier point in time that her injury was caused by the fault of the doctor. The onus is on the doctor to satisfy the Court that the patient would have ascertained knowledge of fault if she had taken all reasonable steps before 21 December 2017.[77] As explained in Gillett, this involves an inquiry into the steps actually taken by the patient and then a determination as to whether such steps were reasonable in the circumstances.[78] While this is an objective assessment, it must be made having regard to the patient’s personal circumstances.
[77]Moore v Escott [2022] VSC 353, [139] (O’Meara J); Gillett [2012] NSWCA 83, [26] (Beazley JA).
[78]Gillett [2012] NSWCA 83, [104] (Beazley JA), as discussed above at [69].
The patient sought initial advice from Maurice Blackburn in late 2016, but she did not instruct those solicitors to investigate the merits of her possible claim. The judge noted that with poor health, multiple hospital attendances, and some memory problems, no further steps were taken by her to ascertain knowledge of fault until she instructed Slater and Gordon in February 2019. Having noted the patient’s knowledge, capacity and circumstances during that period, the judge correctly found that the patient was not in a position to take reasonable steps to establish fault on the part of the doctor from late 2016 until February 2019.
In his oral submissions, the doctor’s counsel urged this Court to reject the judge’s finding that the patient could not recall her communications with Maurice Blackburn. It was put that in the absence of cogent medical evidence to explain this, an inability to recall such discussions was not credible and ought to have been rejected by the judge.
At the outset, we note that this finding was not challenged by the doctor in his grounds of appeal. Further, whether or not the patient could recall such communications would appear irrelevant, given those consultations did not constitute legal advice sufficient to give the patient knowledge of the key factors necessary to give rise to a cause of action.
We do not accept the doctor’s submission that this was a fundamental flaw in the judgment. The judge reached this conclusion after considering lengthy medical records, which included multiple hospital attendances from November 2016 until November 2017. The judge also noted medical records in 2015 which were consistent with the patient suffering some problems with memory. We reject the doctor’s submission that there was an absence of cogent medical evidence to support this finding.
The first four grounds of appeal must fail.
Ground 5
In his fifth proposed ground of appeal, the doctor contends that the judge erred in law when she concluded that it was just and reasonable to grant an extension of time to rely upon acts or omissions of the doctor before 21 December 2008. In support of this ground, the doctor expressly contends that the judge erred in accepting the patient’s explanation for delay.
The doctor submitted that after the patient consulted Maurice Blackburn, she made a conscious decision not to pursue her claim. The doctor referred to several decisions where courts have held that a deliberate decision to allow a limitation period to expire was considered a powerful factor against the granting of an extension of time.[79] However, such a submission fails for several reasons.
[79]Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 224–6 [88]–[98] (Ipp AJA); [2022] NSWCA 104; Prince Alfred College Inc v ADC (2016) 258 CLR 134, 167 [106] (French CJ, Kiefel, Bell, Keane and Nettle JJ); [2016] HCA 37; Griffiths v Nillumbik Shire Council [2022] VSCA 212 [78]–[83] (Beach JA, Keogh and J Forrest AJJA).
First, it was not put to the patient in cross examination that she made a conscious decision not to pursue her claim before consulting Slater and Gordon.
Second, the submission ignores the judge’s findings as to the nature of the advice provided to the patient by Maurice Blackburn, which included her being given ‘generic advice’ about the limitations period,[80] with ‘no notation of any advice in relation to the long-stop’ provision.[81] Unlike the plaintiffs in the decisions relied upon by the doctor,[82] there was no conscious decision by the patient to allow the limitation period to expire.
[80]Reasons, [62].
[81]Ibid [90].
[82]See fn 85 above.
Third, the submission overlooks the positive finding by the judge that the patient’s health was such that she was not in a position to take reasonable steps to attain knowledge of fault until February 2019.
While the doctor urged us to find that the patient falsified her memory loss so as to explain her delay, for the reasons given above, we do not accept this submission.
The doctor contends that, with the passage of time, he will be denied a fair trial if the limitation period is extended. In advancing this submission, he focussed on the patient’s claim to have a fragile memory, which it was submitted constituted specific prejudice insofar as he would be unable to adequately cross-examine her on various issues. The doctor submitted that this had been demonstrated in the patient’s oral evidence at the hearing before the judge, where she had difficulties recalling how often the doctor tested her blood pressure, and also her failure to recall any of her communications with Maurice Blackburn.
In her reasons, the judge expressly stated that no specific prejudice was alleged. None was suggested in the hearing before us. The judge correctly acknowledged that there would be general prejudice caused by the delay. Memories do fade with time. A review of the transcript of the patient’s oral evidence demonstrates that her memory, on some matters, had indeed faded. However, the judge correctly noted that the Court is not required to determine whether the doctor can have a perfect trial, but rather is concerned with ensuring that a fair trial is still possible. In assessing this, the judge noted that there were plentiful records and witnesses available. Further, the judge observed that the two main issues in this proceeding will be breach and causation, and that these will be the subject of expert evidence. Such opinions will be based upon the contemporaneous clinical records which, as noted above, are available.
There is no error of the House kind in this case. Moreover, had we been applying the correctness standard of review, we can detect no basis upon which to set aside the judge’s decision. The judge’s statement of the relevant principles, her findings of fact and synthesis of the relevant factors contained in s 27L(1) of the Act were correct, and there was no error in her decision to grant an extension of time to rely upon acts and/or omissions of the doctor before 20 December 2008.
Leave to appeal will be refused in respect of this proposed ground.
Ground 6
In his sixth and final proposed ground of appeal, the doctor alleges that the judge erred in law when she concluded that it was just and reasonable to grant an extension of time to rely upon acts or omissions of the doctor after 21 December 2008. However, in circumstances where there is no error in the judge’s finding as to the date of discoverability, it is not necessary for us to determine this ground of appeal.
Conclusion
While the doctor should be granted leave to appeal in respect of grounds 1–4, for the reasons given, the appeal must be dismissed.
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