Yates v Southern Sydney Area Health Service

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4462 of 2000

PATRICIA ANNE YATES	Plaintiff
v
SOUTHERN SYDNEY AREA HEALTH SERVICE	Defendant

---

JUDGE:	Smith J.
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2002
DATE OF JUDGMENT:	2 October 2002
CASE MAY BE CITED AS:	Yates v Southern Sydney Area Health Service
MEDIUM NEUTRAL CITATION:	[2002] VSC 419

---

Limitation of actions – Extension of time – s. 60C Limitation of Actions Act (1969) NSW.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin and Miss B. Orr	Stringer Clark
For the Defendant	Mr P. Rose, QC and Mr G. Moloney	Hunt & Hunt

HIS HONOUR:

Application by Summons dated 16 August 2002

Patricia Anne Yates seeks an order nunc pro tunc extending time for the issuing of proceedings against Southern Sydney Area Health Service pursuant to s. 60C Limitation Act 1969 (New South Wales).

Background to Application

By writ dated 13 March 1998, Ms Yates has brought proceedings against Southern Sydney Area Health Service (the defendant) claiming damages for injuries, loss and damage resulting from the alleged negligence of the defendant. In her statement of claim she alleges that she was employed by the defendant at Sutherland Hospital at Cronulla in New South Wales and that, during that employment, in or about late January 1991 and on 4 February 1991, suffered perforations of her hand by the cutting of a lancet and pricking with a needle. She alleges that the perforations by the lancet and the needle occurred as a result of the defendant's failure to provide a proper and safe system of work, place of work and plant and appliances and its failure to provide efficient supervision of that work. Particulars alleged were as follows:

"Particulars of Breach of Duty

(a) Failing to take any or any adequate precaution for the safety of the plaintiff;

(b) exposing the plaintiff to risk of injury which could have been avoided by reasonable care.

(c) failing to instruct or adequately instruct the plaintiff in the duties she was performing;

(d) failing to observe the plaintiff was in a position of peril in the circumstances;

(e) requiring the plaintiff to perform dangerous activities at an excessive rate;

(f) failing to institute and supervise a procedure for the handling of needles and lancets;

(g) knowing that there was a risk of perforation, failing to establish a system that minimised the risk of infection flowing from such perforations;

(h) failing to have any or any sufficient system to screen patients of high risk in relation to infection so that perforations with equipment used on them would be minimised."

Ms Yates alleges that as a result of the perforations she contracted Hepatitis C which has resulted in liver damage and the need to submit to lengthy, extensive medical treatment involving a range of drugs which produce adverse effects. In particular she alleges that she has experienced the following:

(a) Interferon treatment from January 1996 to January 1997 and (in conjunction with Ribavarin) from June 1998 to July 1999 with side-effects similar to chemotherapy;

(b) significant loss in energy and capacity necessitating continuing reductions in her workload from July 1998 onwards;

(c) depression and anxiety, treated by Dr Gault from October 1998 to August 1999;

(d) liver damage, with associated high risk of developing cirrhosis in the liver and 5% chance of developing cancer of the liver;

(e) loss of weight, blurring of vision, manic personality changes, thyroid toxycosis;

(f) complications from medication caused stomach ulcer, which was established by gastroscopy in May 99, skin conditions and a haemarroidectomy, which resulted in a urine retention problem requiring catheterization.

She alleges that she has incurred and will continue to incur hospital, pharmacological and medical expenses.

She also alleges that the injury has impaired her ability to work as a nurse and to continue in that career and she claims loss of earnings and loss of earning capacity.

The Relevant Limitation Period

It appears that if the Limitation of Actions Act 1958 (Vic) applied, the writ was issued within the relevant limitation period – not more than six years from the date on which the person first knows that he or she has suffered personal injuries and that they were caused by the act or omission of some person.[1] The writ was issued in 1998 within, it is said, three years of the plaintiff becoming aware that she had sustained the injuries as a result of the act or omission of the defendant. At the time the proceedings were issued they also had to comply with the Limitation Act 1969 (NSW) by reason of the choice of Law (Limitation Periods) Act 1993. It may have been arguable at that time that the proceeding was issued in compliance with both legislation but in light of the High Court judgment delivered in Pfeiffer v Rogerson[2] on 21 June 2000 the relevant limitation law governing the proceeding was and is that of New South Wales only – the lex loci delicti. It is common ground that that is the governing law.
[1]s. 5(1)A.
[2](2000) 203 CLR 503.

The relevant provisions of the Limitation Act 1969 (NSW) are as follows:

"18APersonal Injury

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to:

(a) a cause of action arising under the Compensation to Relatives Act 1897, or

(b) a cause of action that accrued before 1 September 1990.

(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims."

Thus, absent any other provisions, the action was statute-barred at the time the writ was issued. The legislation, however, provides for what is described as a "Secondary Limitation Period" in Subdivision 2 of the Act. The relevant provisions there, it is common ground, are the following:

"60APurpose of this Subdivision

The purpose of this Subdivision is to provide a procedure for a 5 year (maximum) extension of the 3 year limitation period for personal injury cases. It applies to causes of action that accrue on or after 1 September 1990.

60BThis Subdivision applies only to new causes of action

This Subdivision applies only to causes of action that accrue on or after 1 September 1990.

60COrdinary action (including surviving action)

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines. …

…

60E Matters to be considered by Court

(1) In exercising the powers conferred on it by section 60C …, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay,

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c) the time at which the injury became known to the plaintiff,

(d) the time at which the nature and extent of the injury became known to the plaintiff,

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission,

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(h) the extent of the plaintiff's injury or loss.

(2) – (4) … "

It is common ground that the effect of the legislation is to permit the Court to extend the three-year limitation period for a further maximum period of five years – thus to an outer limit of eight years.[3] The delay referred to in the section does not appear to be defined but would seem to refer to any relevant delays that have occurred in the particular case – in this case the delay in issuing the writ and the delay in applying for an extension of time. Alternatively, if it relates only to the delays in issuing the writ, the delays in applying for extension of time are relevant to the decision to be made under s 60C.
[3]McMillan v Bevan [2002] NSW CA 143.

I was referred to a number of authorities, both Victorian and New South Wales, which counsel have submitted are relevant to my consideration of the New South Wales provisions. I will confine my references in these reasons to the New South Wales authorities where the relevant provisions have been considered.

In Schering-Plough Pty Ltd v Page,[4] Sheller, JA summed up the approach to be taken under s 60C(2) as follows:
[4][2002] NSW CA 4.

"15 In approaching an application for an extension of the limitation period under s60C(2) the Court must take into account all of the circumstances of the case including each factor mentioned in s60E(1) to the extent that it is relevant to the circumstances of the case; Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199. In doing so, the Court should be mindful of the matters referred to in the judgment of Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532-3. The discretion conferred upon the Court is to be exercised judicially in a manner that furthers the purposes of the statutory context, the immediate purpose, as with any limitation period, being to protect defendants against the injustice of stale claims and to promote forensic diligence. Bearing those matters in mind, the question is whether in the circumstances of each individual case the applicant for leave has demonstrated that it is just and reasonable that leave should be granted. The diligence or lack of diligence shown by a plaintiff or a plaintiff's representatives in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

16 Sections 60C and 60E spell out expressly matters which to some extent, at least, are embraced by the Chief Justice's remarks. The judge here was bound to have regard to all the circumstances of the case and to the extent that they were relevant to the circumstances of the case the matters listed in paras (a) to (h).[5]

[5]Meagher, JA concurred with Sheller, JA; Brownie, AJA dissented on the facts.

His Honour referred to passages in two earlier judgments. The first concerned the analysis of Mason, P in Sydney City Council v Zegarac[6].
[6][1998] 43 NSWLR 195.

To put that reference in context it is necessary to refer to earlier passages in the reasons of Mason, P where he considered, inter alia, the applicability of the High Court decision of Brisbane South Regional Health Authority v Taylor[7]. Apparently that decision had been "correctly" viewed by the profession as "requiring greater stringency in the approach to the exercise of statutory discretions to extend limitation periods than has been evidenced in many applications."[8]
[7](1996) 186 CLR 541.
[8]Per Mason, P at 196.

His Honour stated the following propositions which he suggested were uncontroversial:

"1. Section 60C confers a judicial discretion.

2. The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is 'just and reasonable' to make the order for extension: see also Brisbane South (at 544, 547, 554, 567-568).

3. In exercising the discretion, the court is required 'to have regard to all the circumstances of the case' (s. 60E(1)). It is also required to have regard to the eight factors listed in s. 60E(1) 'to the extent that they are relevant to the circumstances of the case.'

4. Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which are identified in those passages from the Attorney-General's Second Reading Speech that are set out in the other judgments, and which McHugh, J discussed in Brisbane South (at 551-553): see also Kirby, J (at 563-564)."

His honour then turned to the issue of the impact of prejudice to the defendant and did so by referring to the provisions of s 60E(1)(b) (above). His Honour commented:

"This carefully phrased paragraph should be examined before rushing to the dicta in Brisbane South. Indeed, it raises a question as to whether the ratio decidendi of Brisbane South is applicable to Subdiv 2. The latter question is not in issue in this appeal, but I shall refer to it below."

His Honour went on:[9]

"Like the other factors listed in s 60E(1), par (b) applies 'to the extent that [it is] relevant to the circumstances of the case'. Persuasive dicta in Brisbane South indicate that it is for the party opposing the application to adduce evidence of facts suggesting particular prejudice if the discretion were exercised in the applicant's favour: see (at 547), per Toohey J and Gummow J citing Cowie v State Electricity Commission (Vic) [1964] VR 788 at 793 and Campbell v United Pacific Transport Pty Ltd [1966] Qld R 465 at 474; see also Kirby J (at 566-567). Failure to adduce such evidence may draw the unfavourable inference that specific prejudice is absent, due to the fact that it is very much in that party's camp to know of the existence, impact and 'extent' of such prejudice."

[9]At 197.

His Honour then (referring to McHugh, J's judgment in Brisbane South[10]) commented that time –

"may 'sometimes, perhaps more often than we realise' cause the deterioration in quality of evidence that is not recognisable even by the parties. The capacity of a key witness to give a credible account and to defend it under cross-examination may be undermined by the lapse of time, especially if he or she did not make a contemporaneous written statement. While a tribunal of fact should be able to assess the disadvantage, this too can be difficult; and it may not be fair to the defendant to be put at peril of losing such a case when it has been commenced out of time."

[10]At 551.

His Honour then went on to consider the question of the impact of proof of prejudice on the outcome of the actual application. He stated:[11]
[11]At 198.

"Nothing in the structure of s 60E(1) suggests that mere proof of prejudice must lead to the rejection of the application. On the contrary, prejudice is but one of a list of factors to be taken into account. This is further underscored by par (b)'s focus of the court's attention on the extent of the prejudice to the defendant. It follows that the exercise of the discretion may result in a trial in which the defendant is placed at some disadvantage in consequence of the plaintiff's tardiness."

After giving further consideration to statements of the High Court in Brisbane South, his Honour made the following comments in what appear to be the passages[12] referred to by Sheller, JA:
[12]At 199.
"Now obviously these remarks are to be read in the context of the case before the High Court. Nevertheless they represent a clear indication that mere proof of actual prejudice will not dictate the rejection of an application to extend time. I do no more than note this possible gulf between the obiter views of the justices in Brisbane South: it would be presumptuous for me to go further in an attempt to exegete the dicta in a very recent High Court decision.

I would however express respectful agreement with the following statement of Kirby J in Brisbane South (at 569-570):

'Although attempts have been made to spell out the criteria to be taken into account in judging whether or not an order extending time should be made, care must be taken in the use of such criteria because of the different expression of the relevant provisions of limitation statutes. Furthermore, the factual circumstances of cases are infinitely various. The discretion conferred by s 31(2) of the [Queensland] Act is controlled only by the terms of the Act and the achievement of its purposes, as elaborated above.'

Applying this approach to Pt 3, Subdiv 2 of the Limitation Act 1969, s 60E(1) in particular, I would hold that proof of actual prejudice, even 'significant' prejudice, does not dictate the rejection of an application for extension of time. All of the circumstances of the case must be taken into account, including each factor mentioned in s 60E(1) to the extent that it is relevant to the circumstances of the case. If this is 'individualised justice', it was what parliament intended. Evidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case. In weighing prejudice, its impact upon a fair trial is the primary focus, as Toohey J and Gummow J emphasise in Brisbane South.[13]"

[13]At 200. On the issue of prejudice I note that his Honour questioned the applicability of statements in Brisbane South which disagreed with the approach taken by the majority in the Queensland Court of Appeal which had been to consider prejudice on the basis, inter alia, of whether the defendant was any worse off than it would have been if the action had been commenced within but towards the end of the limitation period. His Honour said it was not necessary to decide that point.

Considering the circumstances of the case and the learned primary judge's approach, Mason, P found error in the fact that his Honour concluded that "It ultimately comes down to balancing the degree to which the defendant would be prejudiced by permitting the plaintiff" … to proceed with the action. Mason, P was of the view that the Act does not support an approach involving the balancing of prejudice and that it was unhelpful and potentially misleading to approach the issue on that basis. His Honour indicated, however, that he would not have been inclined to intervene because the passage quoted might be seen to be a loose shorthand introduction but for the fact that his Honour's statement indicated that the plaintiff was ultimately relieved of the persuasive burden placed upon the plaintiff by the Act. Mason, P then concluded that it became the task of the Court to exercise the discretion afresh. His view was that the difficulties facing the defendant were such as to make a fair trial on the issue of liability highly problematic. He also commented:

"And the absence of satisfactory explanation for the delay is telling. In my view it is not just or reasonable to extend time for commencing this stale claim."

Priestley, JA came to a different conclusion. His Honour considered in considerable detail the legislative history and background. His Honour did this in considering the principal submission of counsel for the defendant, that the exercise of the discretion conferred by s. 60C and s. 60E was to be exercised in the manner described by the High Court in Brisbane South.

Priestley, JA, having considered the authorities, rejected the defendant's principal submission stating that the primary judge had given consideration -

"to the matters he was required to do by s. 60E. In doing so, and in saying that ultimately he needed to perform a balancing exercise, I think he was correctly doing what he was required to do under the provisions of Act No 36 of 1990 in their application to general hardship cases."[14]

[14]At 22.

Powell, JA enumerated what he saw as emerging from s 60C and s 60E, namely:

"(1) The discretion conferred on a court by the provisions of s 60C of the Limitation Act 1969 is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period;

(2) an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Limitation Act 1969, that it is just and reasonable so to do;

(3) although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant."[15]

Powell, JA concluded that the City Council would suffer prejudice for a variety of reasons, for example:
"the difficulty in identifying and locating relevant witnesses, the apparent loss by the respondent's former employer of relevant records, the loss of the opportunity of having had earlier medical examinations of the respondent and of having observations or investigations carried out to test the respondent's claim."[16]

[15]240-1.

[16]242.

His Honour's view was that this was significant prejudice and his conclusion was that to extend the time would place the defendant –

"in a position of significant disadvantage and that it would be highly unlikely that a fair trial would result. That being so it seems to me that it is not just and reasonable that the respondent have the benefit of an order extending the limitation period."

The Second Reading Speech of the then Attorney-General[17] was referred to by Mason, P and quoted by Powell, JA[18]. It should be noted that the Attorney-General referred, inter alia, to the following:

"Such statutes reflect a concern both for the defendant's interest in litigation and for the public interest. By limiting the time within which a plaintiff may make a claim, the defendant's potential liability is made finite and can be predicted with certainty. This is an important element in obtaining insurance against damages for liability. It is desirable, if not essential, that insurers be made aware reasonably quickly of potential claims and that they be in a position to determine the possible size of claims. This is necessary to allow insurers to determine their future liabilities with some degree of accuracy and, on occasion, to satisfy their need to inform reinsurers. Present arrangements make those financial assessments extremely difficult.

The public interest demands that the proceedings be commenced with as little delay as possible, for delay can only prejudice the fair trial of the issues involved. The litigation of claims at a time when witnesses or records may no longer be available or reliable has to be discouraged. This is especially significant in personal injury actions which rely so much for their resolution on the proof of factual matters … Limitation legislation thus aims at the prevention of avoidable delay …"

[17]Parliamentary Debates, 49^th Parliament, 2^nd Session, 12246 and following.

[18]At page 238 and following.

The Attorney-General, after noting that the proposal that emanated from the Law Reform Commission was for an open-ended discretion, expressed the view that that would be too uncertain and merely reintroduce the problems that the limitation periods were designed to obviate. He therefore proposed a secondary limitation period of five years during which the court could allow proceedings to be brought if it was "just and reasonable to do so in the circumstances of the case". He also noted that the court would be required to consider certain factors. The Attorney-General then commented that the original primary limitation period of six years was reduced to three years to encourage plaintiffs to commence their actions at an earlier date while the evidence was fresh and more easily available and to encourage the earlier determination of contested claims. He saw it as being in the public interest to require early prosecution of personal injury claims. He then commented:

"As I have mentioned, the five-year secondary limitation period will avoid injustice and hardship that may arise from the strict application of a three-year limitation period."

The other judgment cited by Sheller, JA was that of Gleeson, CJ in Salido v Nominal Defendant[19]. In that case the Court of Appeal was concerned with a provision in the Motor Accidents Act 1988, s 52(4) which provided:
[19](1993) 32 NSWLR 524 at 532-3.

"(4)A claimant is not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim must be made in accordance with s. 43 except with the leave of the court in which the proceedings are to be taken."

His Honour commented:[20]
"I see no reason to characterise the circumstances that might, in a given case, justify leave under s. 52(4) as necessarily extraordinary, or truly special. The question is what is fair and just. To take a simple example, delay in the onset of symptoms is a circumstance that might make it equitable to grant leave to commence proceedings out of time. Such delay happens from time to time, and in many cases it would be inappropriate to describe it as extraordinary, or truly special."

After referring to the fact that the onus was on the applicant to show why it was fair and just that a dispensation should be granted his Honour commented that there should not be any additional forensic burden of "indeterminate nature and unquantified weight".

[20]At 532.

His Honour then enunciated the following guidelines to assist in obtaining consistency of decision-making:

"1.Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence.
2.Bearing in mind those statutory purposes, the question is whether in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.
3.The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representative, in ascertaining and asserting his or her rights, will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.
4.The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account and may in some cases be of decisive importance.
5.Leave under s. 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to the police, notifying claims and commencing proceedings will be material."[21]

[21]At 532-3.

Referring back to the statement of Sheller, JA it will be seen that his Honour summarised Gleeson, CJ's remarks substituting the relevant statutory test of "just and reasonable" for his Honour's requirement of "fair and just".

The Issues

I propose to focus initially on the matters referred to in s 60E(I), they being relevant to the circumstances of the case.

Having regard to the circumstances in the case, the matters listed may be considered in broadly three categories.

(i) The length of, and reasons for, delay; involving consideration of paras (a), (c), (d), (e), (f) and (g) of s. 60E(I).

(ii) The nature and extent of any prejudice caused to the defendant by reason of the delay, including the unavailability of evidence (which includes (b) of s. 60E(I)) ); I note that para (b) requires consideration be given to potential prejudice – 'is or may be prejudiced').

(iii) The extent of the plaintiff's injury or loss (s. 60E(I)(h)).

I have referred above to the plaintiff's allegations as to loss and injury, which have been referred to in affidavits filed on her behalf.

Issues – the Length and Reasons for the Delay

Turning to the evidence, I am satisfied that the injury in the form of Hepatitis C was not known to the plaintiff until it was diagnosed in October 1995. I am also satisfied that shortly after the diagnosis she made the connection between the presence of Hepatitis C and the incidents at the Sutherland Hospital. Her condition came to light as the result of a blood test taken after she was spat on by a patient at Warrnambool Hospital. Thus it was at that time that that injury became known to her, as did its nature and extent and the connection between that injury and the defendant's alleged acts or omissions[22]. Obviously nothing had been done prior to that incident by the plaintiff to make any form of claim for that injury. Thus the delay in the period prior to October 1995 (about five years) was the result of the plaintiff's lack of knowledge that she had Hepatitis C.
[22]S. 60E(I)(c), (d) and (e).

It is relevant to note, however, that there was no relevant delay in advising the employer of the incidents and perforation injuries. The plaintiff completed an incident and injury report under the Workers Compensation Act 1987 on 23 September 1990 relating to the alleged lancet injury on 18 September 1990 and a document entitled "Workers Compensation Act 1987 – Register of Injuries" relating to the same incident. On 4 February 1991 she completed the latter document for the alleged needlestick injury reporting that it occurred on 4 February 1991. These documents are referred to in the affidavit material filed for the defendant. The register of injuries was a record that employers were required keep.[23] There is no evidence about what steps were taken by the hospital or its insurers on receipt of these documents, although the defendant's affidavit of documents[24] lists "Copy of GIO Australia Ltd, Employer's Report of Injury Form (undated) with attached copy Accident-Incident Report dated 4 February 1991, labelled B1-B4". The original register of injuries and incidents documents record the identity of the patients involved and, in the case of the lancet injury, the supervisor "A Turner". In the case of the needlestick injury, there is no specific record but the plaintiff has identified her supervisor as "Cathy".
[23]Workers Compensation Act 1987 s. 90; entry of the particulars duly entered in the register of injuries was sufficient notice of the injury for the purposes of the Act – s. 90(4).
[24]Schedule 1, Part 1, Item 9. See also Item 4.

In considering the subsequent delays, their length and their reasons and the conduct of the defendant and the plaintiff in relation to them it is convenient to analyse the evidence in a number of sub-periods.

(a) From diagnosis, and connection to the defendant, to issue and service of writ

The plaintiff's writ was issued out of the County Court of Victoria at Warrnambool on 16 April 1998. It was sent by ordinary post with an accompanying letter from the plaintiff's solicitors to the defendant's solicitors, Hunt & Hunt, on 17 April 1998. Thus approximately two and one half years elapsed between the plaintiff becoming aware of her Hepatitis C injuries and its possible connection with the Sutherland Hospital and the writ being issued.

The following appears to have occurred during that period.

In January 1996, the plaintiff commenced Interferon treatment which involved an injection of Interferon every second day and blood tests every month. On 24 April 1996 she was referred to the Hepatitis Clinic at St Vincent's Hospital, where her treatment was managed by Dr Paul Desmond. She underwent a liver biopsy which showed no evidence of fibrosis but a moderate level of chronic inflammation in the portal tracts. There was evidence of piecemeal necrosis. She continued to undergo Interferon treatment but failed to have any sustained virological response.

On 18 July 1996 the plaintiff was advised by Dr Sally Bell at the St Vincent's Hepatitis Clinic to obtain blood results from the defendant. On 18 July 1996 Dr Sally Bell provided the plaintiff with a report, sending a copy of it to the Director of Nursing, Sutherland Hospital, setting out the history to date. It recorded the following:

"She has had mild side effects from Interferon with fatigue, loss of weight and initial mood swings which have all now stabilised."

The document sought WorkCover assistance for the cost of Interferon for the next six months.

On 23 July 1996, at the request of the plaintiff, Dr Brough, her doctor in Warrnambool, wrote to the Director of Nursing at Sutherland Hospital. It noted that the plaintiff would be requesting compensation to cover expenses related to the treatment.

Subsequently on about 17 September 1996 the plaintiff wrote to a Ms Joan West, the Claims Officer, Workers Compensation, Sutherland Hospital "in regard to a workers' compensation claim for coverage of medical expenses which had been incurred". The letter asked Ms West to forward to her information and the workers' compensation claim form so that she might formally apply for reimbursement of expenses.

On 10 October 1996 Ms West sent her a workers' compensation claim form together with a copy of the defendant's incident report in relation to the needlestick injury sustained and reported on 4 February 1991.

It appears that the claim form was not formally returned for some months. On 20 May 1997 the Workers Compensation Claim Department wrote to the plaintiff advising her that reports had been requested from certain doctors and not received, and suggested that she might wish to contact the doctors to see what the delay was because the reports were required before liability could be determined in respect of her claim. They also sought the names and addresses of any other doctors she may have consulted in relation to the condition. It noted that the claim form requested from her in November 1996 had not been returned and the letter enclosed a further claim form to be completed. It advised that the claim was "now being handled by Fast Track Claims at Newcastle".

Subsequently, by letter dated 12 September 1997, she was advised that liability for her claim had been accepted and that payment of expenses on file would be made immediately.

It is also relevant to note that the Workers Compensation Claim Department conducted enquiries including an interview with the plaintiff on 8 December 1996. The plaintiff's statement, made in front of one Richard Burns, is a detailed statement, eight pages in length, which gives an account of the two incidents, her subsequent nursing work and the locations of that work, the incident leading up to the blood testing in October 1995 and the subsequent treatment.

On 24 July 1997, prior to receiving notification of acceptance of her workers' compensation claim, the plaintiff visited the offices of her present solicitors, Stringer Clark. Mr Purcell took the instructions. On 29 July 1997, he delivered a brief to advise to counsel. A little over six months later on 13 February 1998, a memorandum of advice was received together with a statement of claim. Further instructions were then taken in light of counsel's memorandum and following that, on 16 April 1998, the writ was issued. It was served by ordinary post on the solicitors for the defendant on 17 April 1998.

The plaintiff has not filed any affidavit material explaining the reasons for delay in issuing the writ. Her counsel referred to the evidence about her medical condition and the impact of the Hepatitis C upon her as being relevant.

During this period it seems that the plaintiff suffered loss in energy and capacity. It is not disputed that the Interferon treatment from January 1996 to January 1997 had side effects similar to chemotherapy. It also seems that from time to time since diagnosis she has suffered from depression and significantly decreased energy levels.

It would be reasonable to infer, in the absence of evidence to the contrary, that in the initial stages the plaintiff's focus was likely to have been on her condition and the treatment of it, and the impact of the condition on her future. In addition, her treatment it seems adversely affected energy levels. The significant fact remains, however, that there is no material placed before the Court as to her state of knowledge of her rights during that period or of what caused her to go to the solicitors in July 1997 and why she did not seek legal assistance at an earlier date.
As from July 1997 it would appear that the period prior to the issue of the writ on 16 April 1998 was the result of seeking and obtaining advice from counsel, seeking and obtaining further instructions in relation to that advice and then the preparing and issuing of the writ and statement of claim. Counsel for the defendant did not criticise the conduct of the plaintiff or her lawyers in this period.

(b) Period from service of the writ to receipt of the defence

As noted above, the writ was served on 17 April 1998.

In July 1998 the plaintiff applied to her employer for a reduction in working hours from a full time load to a part time load. This was done for one month. In September 1998 her working hours were reduced to part-time on a permanent basis.

On 31 August 1998 the plaintiff's solicitors received a telephone call from a Mr Andrew Kemp of Hunt & Hunt, solicitors of Sydney, advising that he acted on behalf of the defendant and would file a defence. By letter dated 13 October 1998 Mr Kemp wrote to the solicitors for the plaintiff confirming that he acted for the defendant and seeking detailed particulars of the allegations in the statement of claim. The letter concluded saying that the defendant would oppose the matter proceeding until the particulars were supplied. There was no reference to delay in issuing the proceedings or to any limitation of actions defence. Mr Purcell, the solicitor for the plaintiff, replied requesting the defendant file a defence.

By letter dated 22 October 1998, the solicitors for the defendant advised the plaintiff's solicitors of arrangements for the plaintiff to undergo a medical examination on 5 December 1998 in Sydney. The plaintiff's solicitors were advised by letter of 12 November 1998 that the medical examination had been cancelled and re-scheduled for 25 February 1999. On 18 November 1998 Mr Kemp again wrote to Mr Purcell, this time advising that the defendant was in the process of filing a notice of conditional appearance and required particulars from the plaintiff so that an application could be prepared in respect of jurisdiction and venue.

Nothing further seems to have occurred in the matter until, by letter dated 8 June 1999, Mr Purcell wrote to the solicitors for the defendant requesting that a defence be filed. By letter dated 13 July 1999 the defendant served a notice of conditional appearance and a defence. The defence raised for the first time the limitation of actions issue. The issue was raised in the following terms:

"6. The defendant contends that the Plaintiff is unable to maintain her cause of action since the same is outside the limitation period in which the proceedings must be commenced."

The defendant also pleaded contributory negligence in the following terms:

"7. The defendant says that the plaintiff's injuries were caused or contributed to by the plaintiff's negligence.

Particulars of Contributory Negligence
1.        Failure to follow normal practice.
2.        Failure to follow training.
3.        Failure to use hand tray.
4.        Failure to keep a proper look-out.
5.        Failure to take reasonable care for her own safety."

The defence also raised an issue as to the assessment of the damages, pleading that it should be made in accordance with certain provisions of the Workers Compensation Act 1987 as amended.
Thus there was a delay of some 15 months during which time it may be said that the primary responsibility lay with the defendant rather than the plaintiff. The plaintiff, however, could have done more to force the matter forward.
(c)Delivery of Defence to Conclusion of Transfer Applications
On 26 July 1999 the defendant applied for orders pursuant to s 20 of the Service & Execution of Process Act 1992 (Cth) staying the proceedings in the County Court. On 20 September 1999 a Master of the County Court granted a stay of proceedings pending an application for transfer of the matter to the Supreme Court under the Courts (Case Transfer) Act. By letter dated 4 October 1999, Mr Purcell advised the solicitors for the defendant that any jurisdictional difficulty could be avoided by the matter being transferred to the Supreme Court. On 10 November 1999 he made application to the County Court for such transfer. The defendant did not file any submissions in respect of the referral and the proceedings were transferred to the Supreme Court by order of the Senior Deputy Registrar of the County Court made 23 February 2000.
The next step in the proceedings appears to have been an order made by Master Bruce on 29 March 2000, in response to which Mr Purcell filed and served on the solicitors for the defendant a proposed timetable for interlocutory steps. This provided inter alia:
Defendant's Request for Particulars  21/04/00
Plaintiff's Further Particulars  19/05/00
Plaintiff's Reply and Request for Particulars                  9/05/00
Defendant's Particulars  31/05/00
Defendant's Third Party Proceedings   9/06/00
Plaintiff's and Defendant's Discovery  16/06/00
Plaintiff's and Defendant's Interrogatories  28/07/00
Plaintiff's and Defendant's Answer to Interrogatories   18/08/00
Mediation  15/09/00
Plaintiff's Notice of Trial  11/09/00

The local agents for the solicitors for the defendants, Tait Taylor Solicitors, served a Request for Further and Better Particulars on 27 April 2000, a few days after the date in the timetable. The plaintiff it seems did not immediately respond to that request. By letter dated 15 June 2000, the day before discovery was due, the solicitors for the defendant advised, inter alia, that they had received instructions to make an application to transfer the matter from the Supreme Court of Victoria to the Supreme Court of New South Wales. By letter dated 3 August 2000, Mr Purcell wrote to the solicitors for the defendants suggesting that the matter be mediated on 24 August 2000. This does not appear to have received a response. Thus, by the end of September 2000, the timetable had been largely ignored by both parties except for the defendant's request for particulars and the plaintiff's attempt to organise a mediation.
On 8 November 2000 Mr Purcell wrote again to the solicitors for the defendant and noted that he now assumed that the defendant had abandoned its intention to apply to transfer the proceedings to the Supreme Court of New South Wales, no application having been made. By letter dated 9 November 2000, however, the solicitors for the defendant advised Mr Purcell that its client had not abandoned its intention to make such an application.
On 30 November 2000 Mr Purcell forwarded Further and Better Particulars of the Statement of Claim to the defendant's solicitors.
Shortly prior to 14 December 2000 enquiries were made by an officer of the Supreme Court as to the progress of the interlocutory steps. Amongst other things Mr Purcell indicated to that officer that the defendant had foreshadowed an application to transfer the proceedings to New South Wales and that interlocutory steps had stalled. On 14 December 2000, Master Bruce made an order providing for a new timetable for interlocutory steps.
By letter dated 24 January 2001, the solicitors for the defendant wrote to Mr Purcell referring to his earlier letters. It confirmed that they were "still considering making a cross-vesting application". In relation to that they required information "as to the location of the relevant witnesses". They also advised that they were awaiting receipt of an investigator's report containing such information. They advised that they were, therefore, unable to agree to a timetable being entered into as they believed the cross-vesting application should be determined first. They accordingly sought an adjournment of any directions hearing. They sought advice of the plaintiff's solicitors' attitude to an application for adjournment as soon as possible and in the meantime awaited "a written offer of compromise from the plaintiff".
On 8 March 2001 Mr Purcell was served with a summons issued on behalf of the defendant seeking to have the proceedings transferred to New South Wales. By letter dated 20 April 2001, however, the solicitors for the defendant advised that they had now received instructions from their client to withdraw the cross-vesting application. By order made 23 April 2001 the defendant's transfer application was dismissed.
It may fairly be said, therefore, that from July 1999 to late April 2001 (some twenty-one months) the principal cause of delay lay in the prevarication of the defendant in proceeding with its application to transfer the proceedings to New South Wales. Having finally issued the application in March 2001 it received instructions in late April 2001 to abandon the application. It is relevant to note, however, that in the affidavits filed by the solicitors for the parties in the transfer application reference was made to the issue of the limitation period. In an affidavit sworn for the defendant by Alissa Anne Thompson, a solicitor in the employ of Hunt & Hunt, the following was stated:

"10. The defendant submits that a New South Wales court is better able to judge an allegation of negligence and the standard of care due by a public hospital. The plaintiff's claim is prima facie brought out of time. The defendant submits a New South Wales court is the more appropriate court to assess relevant criteria for an extension of time under the Limitation Act."

In his affidavit sworn in response on 2 April 2001, Mr Purcell noted that:

"12. The considerations raised by paragraph 6 of the Defence as to the limitation period in which the proceeding must be commenced means that the Court will need to consider the provisions of s. 60E of the Limitation Act of New South Wales."

After referring to the Victorian provision and the similarity of the matters listed in s 23A(2) of the Limitation of Actions Act (Vic) with the New South Wales provisions Mr Purcell concluded:

"The Supreme Court has frequently in the past considered such issues and there is no reason to believe that the New South Wales court is the more appropriate court to assess the criteria."

Thus there appears to have been an appreciation at that time by both solicitors that at some stage an extension of time application would have to be heard. At the same time, both solicitors appear to have been proceeding on the assumption that the matter would go to trial and that was the principal reason for seeking to have the proceedings transferred to New South Wales. It is true that the solicitor for the defendant argued that it was the more appropriate venue for the extension of time application and this no doubt contributed to the deferral of any decision to bring such an application, but the affidavit of Ms Thompson is overwhelmingly devoted to the question of the appropriate venue for trial.
(d)Transfer Application to Present
Following the abandonment of the transfer application, the parties turned their attention back to the steps necessary to have the action ready for trial or other resolution.
On 30 May 2001 the parties agreed to a further timetable for completion of interlocutory steps and Master Cain made an order setting out that timetable on 31 May 2001. The timetable provided, inter alia, the following:
Reply and any Defence to Counterclaim  30/06/2001
Plaintiff and Defendant – Discovery of Documents      14/07/2001
Plaintiff and Defendant – Interrogatories  07/09/2001
Plaintiff and Defendant – Answers to Interrogatories   28/09/2001
Third Party Notice  19/10/2001
Mediation  30/11/2001
Notice of Trial without a Certificate of Readiness
    for Trial by Plaintiff  14/12/2001

Detailed directions were given about the appointment of a mediator and the conduct of a mediation.
It appears that the parties gave discovery in about July 2001. Neither party, however, appears to have interrogated in accordance with the timetable. On 24 October 2001, however, the solicitor for the defendant rang the office of Mr Purcell stating that the defendant intended to deliver interrogatories. Interrogatories not having been delivered by the defendant, Mr Purcell wrote, on 28 November 2001, to the solicitor for the defendant suggesting the matter be mediated on 10 December 2001. On 3 December 2001 the defendant's solicitor telephoned and advised that that was unsuitable. On 5 February 2002 the plaintiff's solicitor wrote to the solicitors for the defendant suggesting a further mediation date of 25 February 2002 and noted that it appeared that the defendant was not intending to interrogate the plaintiff. On 14 March 2002 the defendant served interrogatories for the examination of the plaintiff and advised that once answers were received it would be prepared to participate in mediation. The plaintiff supplied sworn answer to the interrogatories under covering letter of 30 April 2002. The plaintiff took no objection to the late service of the interrogatories because, according to Mr Purcell, he had been informed that if the plaintiff answered the interrogatories the defendant would agree to mediate. By letter dated 1 May 2002, however, the solicitors for the defendant advised that the defendant was maintaining that the plaintiff's claim was statute-barred and that the plaintiff would have to seek an extension of time.
Mr Purcell has deposed that because of the delays that had occurred on the part of the defendant or its solicitors in complying with interlocutory steps he had endeavoured to have the proceedings set down in the Supreme Court circuit to commence at Warrnambool on 6 May 2002. He did so particularly because of his unsuccessful attempts to organise mediation. He has also deposed that while the defence of the defendant had raised a limitation of actions issue, the conduct of the defence had led him to believe that the limitation point was not one which the defendant would be pursuing. He referred in particular to the fact that, throughout the lengthy periods for the completion of interlocutory steps, the defendant had not indicated that the limitation point was being pursued and had indicated that upon the completion of interlocutory steps mediation could occur. He has deposed that because of the indication of a preparedness to mediate he erroneously assumed that the limitation point was not being pursued.
I accept that that was his view. Both solicitors had treated the limitation of actions issue as a matter to be addressed. At the same time, however, the defendant's conduct throughout gave the appearance of a party anticipating that the matter would go to trial. It gave the appearance that the defendant held the view that the limitation of actions issue was not in fact a real issue and an extension of time would be obtained.
In light of the above, it may be said that after the conclusion of the transfer proceedings, the parties proceeded until 1 May 2002 on the footing of proceeding to trial via mediation. Both sides were dilatory, but again the primary responsibility rested with the defendant, with the plaintiff being remiss in not pressing the defendant more vigorously for expedition. As to the extension of time application, it was not until 1 May 2002 that the defendant made it clear that it was serious about the limitation period defence. Since that date the application has been issued and brought to court. Both sides could have advanced that application more quickly.

Prejudice to the Defendant

Some eleven years have now elapsed since the original perforation injuries and there must obviously be some prejudice to the defendant resulting from that delay, including the delay prior to the discovery of the Hepatitis C condition, the further delay prior to the issue and serving of the writ and the delay subsequent to the issue of the writ. As McHugh, J has said in an often quoted statement:[25]

"The enactment of time limitations has been driven by the general perception that '[W]here there is delay the whole quality of justice deteriorates.' Sometimes the deterioration and quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration and quality is not recognisable even by the parties. 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, 'What has been forgotten can rarely be shown'. So, it must often happen that, important, perhaps decisive evidence has disappeared without any body 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. The verdict may appear well based on the evidence given in the proceedings, but, if the tribunal in 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 the cause of action arose."

[25]Brisbane South, above, at 551.

Mason, P in Sydney City Council v Zegarac[26] after referring to this passage commented:

"The capacity of a key witness to give a credible account and to defend it under cross-examination may be undermined by the lapse of time, especially if he or she did not make a contemporaneous written statement. While a tribunal of fact should be able to assess a disadvantage, this too can be difficult; and it may not be fair to the defendant to be put at peril of losing such a case when it has been commenced out of time."

As stated above, however, his Honour went on to say that there was nothing in the structure of s 60E(1) that suggested "that the mere proof of prejudice must lead to rejection of the application" and that on the contrary it is "one of the list of factors to be considered". He also drew attention to the fact that s 60E(1)(b) focuses the court's attention on the extent of the prejudice to the defendant and that as a result it followed that the exercise of the discretion may result in a trial in which the defendant is placed at some disadvantage in consequence of the plaintiff's delays.

[26]Above at 197.

Counsel for the defendant drew attention to the observations of the Court of Appeal in Schering-Plough Pty Ltd v Page[27] where Sheller, JA commented:

"In my opinion, the delay in beginning the proceedings weighs heavily against the opponent. The expiry of the limitation period should not be treated as little more than a marker. Time factors may make it impracticable to obtain an extension before the period has expired though I would have thought that solicitors, conscious of the pending expiry of the limitation period, who feel that the point has not been reached in the evidence-collecting process which would enable them to begin proceedings with confidence, would file an application for extension and see if the other side is prepared to consent."

The defendant argued that granting the application would give rise to presumptive prejudice because of the delay.
Counsel for the defendant submitted that the suggested approach was not taken by the plaintiff's solicitors in this case notwithstanding that they received instructions to act in the matter over five years from when the application was first made. Counsel also emphasised the remarks of McHugh, J in Brisbane South[28] that that the longer the delay, the more likely it is that the case will be decided on less evidence than was available to the parties at the time the cause of action arose. Counsel noted that those remarks were expressly adopted by the majority of the Court of Appeal in Page's case with a comment that "as time passes memories dim and witnesses become difficult to find".[29]
Counsel submitted that this is the position the defendant finds itself in as a result of the plaintiff's dilatory approach to commencing the proceedings and making an application for an extension of time in which to do so.

[27]Above at para 38.

[28]Brisbane City Council, above, at 551.

[29][2002] NSWCA 4, at para 41.

The defendant also alleges specific prejudice. The defendant relies principally upon the affidavits of Georgina Louise Jensz sworn 12 August 2002 and 21 August 2002 as containing evidence of specific prejudice. Ms Jensz is a solicitor in the employ of the defendant's solicitors. The relevant paragraphs are probably objectionable in form but no objection has been taken. The relevant paragraphs are paragraphs 27 to 34 in the first affidavit and paragraph 18 of the second affidavit.

In paragraph 27 of the first affidavit the general proposition is put that "on the basis of the instructions available" to Ms Jensz from the "relevant officers of the defendant":

"I [Ms Jensz] believe that, if the extension to time sought by the plaintiff is granted, there is or may be[30] significant prejudice to the defendant in that evidence that would have been available to it had the proceedings been commenced within the time required by the law of New South Wales is or is likely to be no longer available to the defendant."
[30]Italics added in this and later references

I note the phrase "is or may be" which mirrors the language of s 60E(1)(b). It, however, states alternatives and thus leaves unclear whether actual prejudice or possible prejudice is alleged and provides no basis upon which to clarify the issue. This phrase, as will be seen, has been used throughout the affidavit and, thus, creates the same problem throughout. In addition, I note that the evidence is based on instructions and is stated in the form of the belief, and thus the opinion, of the deponent. To the extent that the deponent is summarising the instructions, the evidence given is hearsay. Further, it is unclear how remote that hearsay is, who gave the instructions, precisely what they were or on what they were based. This problem also exists throughout the relevant paragraphs.
Ms Jensz then develops the argument in subsequent paragraphs.

(a) Documentary evidence[31] -
[31]Para 28.

Paragraph 28, referring back to paragraph 27, raised the concern that "That evidence or potential evidence" (that "is or is likely to be no longer available") – paragraph 27) that "would or may have" assisted the defendant included:

(i) the plaintiff's personnel files for the time that she worked at the hospital,

(ii) the injury books kept in the relevant wards,

(iii) the samples of blood taken from the plaintiff for testing, which have long been disposed of and which are not now and have not been for a considerable period of time available for re-testing,

(iv) "a significant number of the manuals, protocols and other written material" relating to the procedures for the disposal of hazardous materials required to be adopted by employees at the hospital and that were published or used by the hospital for training staff and relating to appropriate procedures to be followed when needlestick or similar injuries were suffered. It is said that "a significant number" have been lost, destroyed or misplaced and are no longer available.

It is again relevant to note that, as with the other aspects of alleged prejudice, indirect hearsay evidence only is given as to actual or possible prejudice. There is no evidence as to what enquiries have been made and whether evidence is available as to the contents of any such documents. It is also unclear from reading paragraphs 27 and 28 whether the alleged evidence is said to have existed ("evidence or potential evidence") and if so, whether it is said to be lost.

There is also evidence which casts doubt on the assertions so far as documentary evidence is concerned. I refer to the affidavit of documents sworn by Joan West, filed for the defendant. Joan West is the Workers Compensation Claims Officer of the defendant. She has listed the various documents available and not available. The affidavit of documents does not refer to any documents in Schedule 2, the Schedule which should include lost documents – in particular the documents mentioned in para 28 of the affidavit of Ms Jensz. I also note that the defendant does have, as indicated in that same affidavit of documents, and as exhibited to the affidavits of Ms Jensz, the documentation recording the alleged injuries and incidents.

The paragraphs may be read as referring only to potential evidence and possible prejudice but there are difficulties when viewed in that light. The reference to "a significant number of manuals …" suggests that some still exist that may be relevant, but there is no attempt to identify them and it is not stated that a set of relevant manuals does not exist. Plainly enquiries have been made sufficient to establish that some manuals were not available and yet the deponent gives no specifics.

As to the loss of blood samples, this might be significant if the results of the testing of the samples were not available but there is no evidence that that is the case.

(b) The death of one of the patients[32] -
[32]Para 29.

It is said that "similar prejudice" arises from the fact that one of the patients treated by the plaintiff during the occurrence of one of the incidents involving the used needle died in 2001. The affidavit then states:

"I believe that he would have been present during this incident and that he may have witnessed it or part of it. But he has died without the defendant being able to take steps to have his statement taken in a form that would have been admissible in this proceeding."

In the course of submissions, the issue was raised as to whether there was in fact a statement. Reading the affidavit with a care commensurate to that of its drafting, it was ambiguous on the point.

There is in fact a statement and it was produced and admitted into evidence in this proceeding. Counsel for the plaintiff stated that the plaintiff would be prepared to consent to the admission of the statement in evidence at any trial. That statement starts with a preamble:

"This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true."

In paragraph 4, he states:

"4. Whilst being a patient at Sutherland Hospital at the stated date, I do not recall any incident regarding a nurse or other staff member of the hospital sustaining any needlestick injury while attending to my care."

In all the circumstances, there does not appear to be any real prejudice to the defendant resulting from the death of that patient.

(c) Difficulties in attempting to locate other potential witnesses[33] -
[33]Para 30.

Ms Jensz deposes that:

"Given the passage of time in this matter, I am instructed that the defendant has faced significant difficulties in its attempts to locate other potential witnesses who I would expect that the defendant would wish to call in its case. In particular, this is the current position in relation to the hospital's infection control officer who was employed in the Hospital when both of the two incidents in the plaintiff's statement of claim were alleged to have occurred and also the nurse supervisors who were on duty on those occasions are no longer in the employ of the Hospital or the defendant and to date their whereabouts is unknown to the defendant and its solicitors."

The paragraph, like the other paragraphs, was drafted with care. Obviously the defendant could face difficulties in attempting to locate relevant witnesses but the paragraph does not give any details of what attempts, if any, have been made "to date" (and, if so, when), what difficulties have been experienced and whether or not it is not possible to locate the potential witnesses. Further the assertions made are again based on unspecified instructions given or passed on to the deponent by persons unnamed. More specifically, the deponent asserts that the defendant has "faced" significant difficulties in attempting to locate the hospital infection control officer and the nurse supervisors. It is stated that their whereabouts are unknown, but nothing is stated about what attempts have been made to try to locate those persons and it is not stated that information is not available that could lead to their location.

(d) Subsequent employment[34] -
[34]Para 32.

Ms Jensz deposes that she believes that since the plaintiff left hospital she had been employed as a nurse or undertaken related clinical duties in at least 4 other hospitals and medical services. She further deposes:

"Attempts on behalf of the defendant to obtain relevant information and evidence about the plaintiff's activities in each of these other establishments to date have proved to be hampered by the significant lapse of time since the plaintiff has worked in those establishments."

The defendant has had in its possession since late 1996 information as to the other places at which the plaintiff has worked. It was relevant to the workers' compensation claim to determine whether in fact the contracting of Hepatitis C may have occurred at one of the other places. Again, the paragraph is carefully drafted and on a fair reading does no more than say that attempts to explore the question have been hampered. It does not state when attempts were made or that they have been unsuccessful. I note that there are assessors' reports in existence.[35]
[35]See affidavit of documents of defendant.

(e) The first affidavit conclusion[36] –
[36]Paras 33 and 34.

"33. In each of the circumstances, my instructions indicate that had the plaintiff commenced her proceeding within the time period allowed by New South Wales law, the information that the defendant has been seeking and which is referred to in my affidavit is likely to have been able to be obtained and the witnesses found.

34. I believe that, on this basis, the defendant has sustained significant prejudice by reason of the delay of the plaintiff in commencing proceedings and in making this application."

The deponent is here stating her understanding of instructions or her conclusions based on them without giving the instructions referred to and is advancing arguments. The affidavit does not spell out the precise information sought and it does not indicate the basis upon which it is asserted that it is likely that it would have been able to obtain information and find the witnesses if the proceedings had been commenced within three years of the original injury – in 1994.

Generally what is put forward in the first affidavit for the defendant is unsatisfactory and incapable of proper assessment as evidence of specific or likely prejudice because in essence it comprises opinions or summaries of the substance of alleged instructions or the deponent's conclusions as to the effect of those instructions but not the detail of those instructions or their source. It does not in my view satisfy the evidentiary onus placed upon the defendant. Rather, the cleverness of the drafting and the lack of detail casts doubts on the evidence and arguments relating to both specific and likely prejudice.

In her later affidavit, sworn 21 August 2002, Ms Jensz refers to a further matter of alleged prejudice. It is in the following terms:

"18. … on the basis of instructions currently available to me from relevant officers of the defendant, evidence which could have been available to the Defendant if proceedings had been commenced within the time required by the law of New South Wales is or is likely to be no longer available to the Defendant. In particular, I believe that prior to 1997, there may have been documents that could have been relevant to the Plaintiff in the possession or control of the Defendant, its predecessor or the Sutherland Hospital. However, I believe on the basis of my discussions with persons who are responsible for the archiving of relevant hospital documents including employment records, that a large amount of those documents belonging to the Hospital were destroyed in a flood in or about 1997. What the Defendant has discovered to date is largely all that remains of that material which may be relevant to this proceeding and which is available to the Defendant to mount a defence to the Plaintiff's claim. Additionally, throughout the relevant period with which this proceeding is concerned, the Defendant had a policy that any records and documents which had no ongoing relevance were to be destroyed after seven years from their creation or, if it were an employment, after seven years after the relevant person's employment with the Hospital ceased. In the Plaintiff's case, she resigned from her position at the Hospital on 28 February 1991. I believe that any such documents records or files that were not lost in the 1997 flood would have been destroyed at or around the end of February 1998 in accordance with the policy."

Again the affidavit is based on "instructions" from unidentified officers who are described as "relevant officers".

It must always be possible to assert that "there may have been documents that could have been relevant to the plaintiff". The question where specific prejudice is asserted is whether there were any such documents. The deponent, or someone else, has apparently talked to the relevant officers. Apparently there are people who can depose to what documents would have been relevant at the time but they have not sworn affidavits. No specificity is given as to the documents that were destroyed in the flood. It would be surprising if that specific evidence could not be given – if only of categories. Again, I note that there is no reference to lost documents in Schedule 2 to the defendant's affidavit of documents.

As to the practice of destroying documents which were of no ongoing relevance after seven years from their creation or, in the case of an employment file, seven years after cessation of employment, it is difficult to accept that that policy of destruction would have applied in the present case because the defendant had registered the perforation injuries and incidents in 1990 and 1991 for workers' compensation purposes and was advised of a workers' compensation claim, which was obviously going to be an ongoing claim, in 1996. Rather one would have expected, if the policy referred to was applied, that the documents and records relating to the plaintiff would in fact have been retained. As to the flooding, it is not stated where the flooding occurred and whether documents of the relevant nature would have been located where the flooding occurred or not. There is also the statement that the material discovered is "largely all that remains of that material …" Does that mean that there are in fact other documents? The evidence generally is most unsatisfactory.

Again, this material is unsatisfactory. It also casts doubts on the existence of specific or likely prejudice.

I may be doing the deponent and those responsible for drafting the affidavits a grave injustice, but I am left with the impression of a lack of frankness which raises doubts about the nature and extent of any specific or likely prejudice, if any, to the defendant resulting from the delay. Another point to note is that, since the service of the writ, the defendant does not appear to have been concerned about the delay. That in turn casts doubt on the existence or extent of any prejudice that it may have suffered as a result of any of the delays, previous or continuing. If it was concerned, it could have sought summary judgment shortly after it was served relying on the limitation defence. Instead it explored issues relating to the trial of the writ and conducted itself as if it expected the matter to go to trial.

It is also relevant to note, in considering the issue of prejudice to the defendant, that the defendant was put on notice in 1990 and 1991 of the incidents and original injuries and in approximately the middle of 1996 of the development of Hepatitis C and the existence of a claim for workers' compensation. On each occasion it had the opportunity to fully investigate the matter. We do not know whether the defendant took steps in 1990 and 1991 to investigate the incidents and alleged injury and, if so, the extent of those investigations. In light of my views of the drafting, I am unable to assume that the absence of evidence of investigations should lead to the conclusion that none occurred.

As from the middle of 1996, assuming no earlier investigation by the defendant, one might have expected the defendant to at least then take the steps required to identify the persons who could give evidence about whether the incidents occurred and whether they arose out of the employment at the time in question or out of some other prior or subsequent employment. It had all the necessary information to check those matters out by the end of December 1996. It also had the opportunity to prepare itself for a potential common law claim, something that must have been a real prospect in view of the seriousness of the injury. This would have involved additional work in obtaining more detailed information about the systems employed, instruction manuals and other information. The defendant may not have gone to that additional trouble but it plainly did engage personnel to investigate the claim and it cannot say that it did not then have the opportunity to investigate such matters. There is no evidence before me as to extent of the attempt made.

In assessing prejudice arising from delays since the service of the writ it is also relevant to bear in mind that inevitably some time would have elapsed before any trial of the matter.

Whose Delay has caused Prejudice?

In considering whether an extension of time would be just and reasonable, it is also relevant to consider whether, assuming that the delays that have occurred have resulted in prejudice, that prejudice can be attributed to delay on behalf of the plaintiff or delay on behalf of the defendant.

In the present case, the period of delay from the incidents in 1990 or 1991 and the diagnosis of Hepatitis C cannot be said to be the fault of the plaintiff or delay for which the plaintiff herself is responsible. Similarly, the delay was not the direct result of acts or omissions of the defendant. But it was in the nature of the injury allegedly inflicted that time would pass before the significance of the injury would be apparent. That in turn flowed from the nature of the work and the system of work and the injury itself. But for the incident at Warrnambool, it is likely that further time would have elapsed.

After the diagnosis of the Hepatitis C, there were, as noted above, periods of delay attributable to the plaintiff and others for which the defendant was primarily responsible. In analysing the periods of delay above I have identified those periods.

The question arises as to whether any prejudice should be attributed to the plaintiff or defendant. On the evidence filed for the defendant relating to specific or likely prejudice, it is not possible to form any view, one way or the other, as to whether any of the alleged specific or potential prejudice was the result of delay by the plaintiff, delay by the defendant or delay by both.

As to presumptive prejudice, the reality is that the most critical period of delay was probably that initial delay from early 1991 to late 1995 . For this period, however, the plaintiff cannot be blamed but the delay may be said to be a consequence of the nature of the alleged injury and the circumstances in which it was allegedly suffered, circumstances which it is not contested give rise to an arguable cause of action against the defendant. As from notification of the workers' compensation claim in the middle of 1996 there was presumptive prejudice during this period of delay for which the plaintiff was responsible. As from the date of service of the writ more than four years has elapsed, a delay adding to any presumptive prejudice, for which the defendant must accept the primary responsibility although the plaintiff could have expedited matters.

Conclusion

It must always be remembered that the onus is on the plaintiff, not the defendant, to establish that it would be just and reasonable to extend the limitation period to the date on which the writ was issued.

It seems to me in light of the foregoing that that issue needs to be determined having regard, in particular, to the following:

(a) The plaintiff has an arguable case that she has suffered serious and continuing injuries associated with the contraction of Hepatitis C as a result of the alleged negligence of the defendant. I did not understand the defendant to allege otherwise.

(b) The nature of the original injury was such that it was likely that the fact that Hepatitis C was also contracted would not emerge during the limitation period of three years.

(c) The plaintiff notified the defendant at the time of the lancet and needlestick incidents that they had occurred. The defendant then had the opportunity to investigate. There is no evidence before me as to whether or to what extent the defendant did so.

(d) The delay in discovery of the infection has caused prejudice of a general nature to the defendant. That delay, however, could not have been avoided by the plaintiff.

(e) The plaintiff within approximately 6 months of discovering the Hepatitis C infection notified the defendant of a worker's compensation claim and subsequently co-operated fully with the defendant's own investigations. No explanation is offered for the plaintiff's delay and I proceed on the basis that an explanation cannot be offered that would assist her case. The lack of explanation also points to lack of candour.

(f) The defendant at that point had an opportunity to fully investigate both its workers' compensation liability and common law liability. There was an investigation but there is no evidence before me as to the nature or extent of the investigation.

(g) The plaintiff did not seek legal advice until the middle of 1997. No explanation is offered for that delay. Although it is reasonable to conclude that for some of that time the plaintiff's focus was on addressing her condition and not on the pursuit of legal remedies, and she lacked energy, the delay is largely unexplained. I proceed on the basis that the plaintiff cannot offer an explanation that would assist her case. It points also to a lack of candour on the part of the party seeking relief.

(h) The defendant failed to file a defence for a period of some 15 months after receiving the writ and it was not until July 1999 that the defendant indicated that it was taking the limitation defence.

(i) Its conduct after filing the defence was consistent with it and its legal advisers taking the view that extension of time would be granted in the circumstances of the case, indicating a belief that it had not suffered specific, general or potential prejudice or not suffered sufficient of such prejudice to deny the plaintiff an extension of time. If that be the reality, it would explain the subtle drafting of its affidavits.

(j) From the date when the writ was served on the defendant the defendant has been primarily responsible for most of the delay. In particular, any application for an extension of time was put on hold by the application to transfer the proceedings mounted by the defendant. The defendant could have brought the limitation issue to a head in 1998 but did not do so.

(k) From the issue of the writ there would in the ordinary course have been delay

(l) The defendant has not led sufficient evidence to raise an issue of specific or likely prejudice. Rather the evidence relied upon casts doubt, in all the circumstances, on the suggestion of specific or likely prejudice to the defendant. In light of the way it has conducted its defence of the proceedings from the date it was served with the writ, it becomes particularly significant that the affidavit material filed for the purpose of establishing such prejudice is inadequate.

The defendant has been highly critical, and rightly so, of the plaintiff's failure to file material explaining why common law proceedings were not brought between October 1995 and 24 July 1997, the date when she attended the offices of Stringer Clark. This is the only substantial delay for which the plaintiff may be held solely responsible. In assessing, however, whether it would be just and reasonable to extend time it is relevant to consider that there is no evidence before me that would support a prima facie case that any specific or likely prejudice flowed from that delay to the defendant. Thus while there is no explanation for that period of delay there is no material before me to support the conclusion that that delay had any specific adverse impact upon the defendant so far as the conduct of the defence of its case was concerned. As to the effect of that delay on general or presumptive prejudice, as noted above, much of that prejudice would have occurred in the approximately five years prior to the diagnosis of Hepatitis C and resulted from the nature of the injury alleged to flow from the negligence of the defendant. It is not something that the plaintiff could have avoided. General prejudice will also have flowed from the four-year delay since service of the writ, for which the defendant was primarily responsible. In view of their length, the periods of initial delay and final delay are likely to be more significant so far as general or presumptive prejudice is concerned.

Consideration of the circumstances in this case is a complex task. Plainly the delays have caused general prejudice, but on the basis of the foregoing analysis it would, in all the circumstances, be just and reasonable to extend the time for the commencement of the proceedings to 16 April 1998, the day upon which the writ was issued, notwithstanding that prejudice.

---

[2002] VSC 419

2 October 2002