Appellant v First Respondent

1 On 1 November 2017, an associate judge refused the appellant's application under s 27K of the Limitation of Actions Act 1958 (Vic) ('the Act') for an extension of time in which to bring an action against the respondents for damages for personal injury, with consequential orders.[1] The appellant has appealed pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to set aside those orders for error and seeks orders extending the limitation period.

2 For the reasons which follow the appeal is allowed, the orders of 1 November 2017 will be set aside, and I will order that the limitation period in respect of the appellant's causes of action be extended to 21 December 2016.

3 The relevant provisions are ss 27K and 27L of the Act:

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.

4 The primary judge recorded the following findings of fact, which were not in dispute.

5 The appellant was diagnosed with a congenital condition, Klippel-Trénaunay-Weber syndrome ('KTW syndrome') when he was 6 years old. By his mid-20s, he was experiencing considerable pain from varicose veins that were a feature of his syndrome. In March 2001, he underwent surgery on his right leg at the Numurkah Hospital District Health Service performed by Dr Roland Hunt. The appellant says that his current condition was caused by this surgery, which he contends was inappropriate treatment that ought not to have been recommended for him. He alleges that he consented to the treatment as a result of negligent advice and that the procedure should not have been performed by the general surgeon at that hospital or without the support of a multi-disciplinary team.

6 The appellant so alleges on the basis of the opinion of a specialist plastic and reconstructive surgeon that it would be reasonable to refer a patient with KTW syndrome to a specialist vascular surgeon for advice regarding options for treatment of painful varicose veins.

7 In their defence, Dr Hunt and the hospital deny that reasonable medical practice required them to advise the appellant that Dr Hunt was neither a vascular surgeon nor a surgeon experienced in operating on persons with KTW syndrome, and that the surgery should be performed by an experienced vascular surgeon with the support of a multi-disciplinary team.

8 In May 2001, the appellant learned, in discussions with Dr Pennington- a plastic surgeon whom he had consulted- that Dr Pennington considered that the surgery performed by Dr Hunt had been inappropriate for him.

9 After learning of Dr Pennington's opinion, the appellant discussed with his parents whether he ought to obtain legal advice. His parents advised him against seeking legal advice, based on their experience of the difficulties of taking legal action against doctors when the appellant's brother was treated for an infected abscess on his brain. The appellant accepted the parental advice. The pain gradually reduced and he learnt to live with it. In the period from 2001 to 2006, he had good days and bad days.

10 In 2006, the appellant again consulted Dr Pennington who, the appellant stated, told him that the surgery had involved the stripping of the main varicose veins in his right leg and that should not have occurred. He was advised to get another job and to seek treatment at a lymphedema clinic. Again, the appellant spoke to his parents about getting legal advice and his parents restated their opinion that the family's experience was that there was no point in seeking legal advice as no doctor would support a claim made against another doctor.

11 Later in 2006, the appellant sought advice from solicitors about family matters arising from the breakdown of his marriage and those solicitors sought an opinion from Mr Pennington about the appellant's KTW syndrome. The period in 2006 and 2007 following his marital breakdown was extremely distressing for the appellant. He did not seek advice from his family lawyers concerning his potential medical negligence claim because he was preoccupied with those family law matters.

12 Sometime after these events the appellant re-partnered and left Victoria to work and live in Queensland, returning in 2012.

13 In his condition, the appellant is prone to develop cellulitis and he experienced his first episode of cellulitis in August 2015. He had been unaware that the lymphedema in his right leg presented a longer term risk of cellulitis. At this time the appellant was starting to experience serious problems with lymphedema and cellulitis which caused absence from work, attendances and admissions at hospital, and, at times, significant illness.

14 The appellant spoke again with his parents about getting legal advice and again they counselled against it in the same terms. However, at this time he decided not to accept his parents' advice since during 2015 when working as a truck driver he had heard a radio advertisement for the services of lawyers offering legal advice on a no-win no-fee basis. He decided to seek legal advice from such a lawyer.

15 Through an internet search he discovered his current solicitor whom he consulted on 5 February 2016. It was only following that first consultation that the appellant became aware of any time limits on pursuing a claim against Dr Hunt or the hospital.

16 It was common ground between the parties that once solicitors were retained, the appellant acted promptly to bring the proceeding.

17 It seems clear that until the complications associated with lymphedema and cellulitis worsened the appellant's pain and suffering and threatened his future employment prospects he had accepted that, notwithstanding the advice of Mr Pennington, his parents were right about his prospects in any legal proceeding and that his relatively stable medical condition was what he had been dealt with in life and that he had no option but to put up with the pain and live with it. The complications with his medical condition that developed in late 2015 were the catalyst for his changed attitude towards his parent's advice.

18 The primary judge had regard to the matters enumerated in s 27L of the Act.

19 The primary judge noted that the relevant period of delay in commencing proceedings was 13 years. She characterised the appellant's decision not to commence proceedings as deliberate and relevant to consider in the synthesis of factors. She accepted that he was ignorant of the limitation period and that his explanation for not seeking legal advice at earlier times were also relevant.

20 The judge recorded that there was no dispute between the parties that there was no basis to assert any specific prejudice if the proceeding went to trial but presumptive prejudice from the effluxion of time was a relevant issue. The judge also noted that the key issue in the proceeding was whether reasonable medical practice was employed by Dr Hunt and the hospital, a question usually proved by expert evidence.

21 In this respect, a key finding made by the judge was that Dr Hunt and the hospital will not be so prejudiced by the effluxion of time that a fair trial cannot be held. Mr Holcombe and Dr Hunt were available to give evidence. Hospital records were available. No specific prejudice was asserted.[2]

22 The judge accepted that the cause of action was discoverable from the time of the appellant's consultation with Dr Pennington in May 2001. She found that the appellant did not act promptly to obtain legal advice because he relied on the advice of his parents rather than making his own independent inquiries. She concluded that it was not reasonable for the appellant to have delayed so long in obtaining legal advice given his ongoing pain, anger at Dr Hunt in respect of the surgery and the advice from Dr Pennington.

23 The judge characterised the appellant's current medical condition to be such that his wellbeing and future employability were at risk and that his loss was potentially significant.

24 Noting that the appellant carried the onus of establishing that it is just and reasonable to grant an extension of time, her task was to synthesise the competing considerations that she had identified in concluding by taking account of all of them whether it was just and reasonable to extend the limitation period.

Mr Holcombe's loss is potentially significant, and this decision will have a significant and harsh consequence for him. The nature and extent of the plaintiff's loss is a factor that must be considered in the synthesis. However, his decision not to obtain legal advice until early 2016 in circumstances where he had received Dr Penington's advice in 2001 and was experiencing ongoing pain, weighs against granting the extension of time. The consequence was that he was not informed as to the limitation of actions. The inordinate length of the delay in bringing this proceeding also weighs against granting the extension. It is not such that a fair trial cannot be held. This latter factor should not override all the other factors. All circumstances must be considered. The extension must be reasonable, as well as just. I do not think it reasonable in all the circumstances. Justice is not simply to be assessed from Mr Holcombe's viewpoint. Justice demands all circumstances be taken into account, including what is just for Dr Hunt and the hospital. Synthesising all the relevant factors, it is not just and reasonable to extend time in this proceeding.[3]

26 The appellant relied on seven grounds of appeal:

1. The Learned Associate Justice erred in that the decision to refuse to extend the limitation period was plainly wrong.
2. The Learned Associate Justice erred in failing to properly exercise the discretion to extend the limitation period since it was unreasonable or plainly unjust not to do so.
3. The Learned Associate Justice erred in the application of the synthesis [53]-[56] which resulted in a failure properly to exercise the discretion whether to extend the time limit, in that her Honour gave determinative consideration to her finding as to delay by itself without properly synthesising the competing considerations including the finding at [45] and [56] that the delay in issuing proceedings was not such that a fair trial could not be held, and arriving at a conclusion that takes account of them all.
4. The Associate Justice erred in failing to provide any adequate reasons to support the conclusion at [56] that it was not just and reasonable to extend the limitation period.
5. The Learned Associate Justice erred in holding at [30] that the Appellant was unsure as to why he did not seek legal advice when he swore to and maintained the explanation referred to at [11], and in circumstances where Her Honour had found at [3] the appellant to be a truthful and credible witness.

6. The Learned Associate Justice erred in holding that:

(a) it was not reasonable for the appellant to have delayed so long in obtaining legal advice [49];

(b) the length of the delay in bringing the proceeding weighed against granting the extension of time [56].

1. The Learned Associate Justice erred in the exercise of the discretion to refuse to extend the limitation period by failing to take into account material considerations namely:

(a) the fact that the appellant was stoic and soldiered on [1];

(b) the decision to obtain legal advice when he did was influenced by the significant deterioration of his symptoms [17].

27 The appellant submitted these seven grounds encompassed three separate points.

28 First, that the primary judge erred in the exercise of the discretion (grounds 1-3 and 7). Second, the judge specifically erred in finding that the appellant had acted unreasonably (ground 6). Third, the judge did not provide an adequate path of reasoning (ground 4). The appellant did not argue ground 5.

29 The appellant contended that the refusal to exercise the discretion was plainly wrong, unreasonable or plainly unjust. He submitted powerful considerations overwhelmingly favoured granting the extension, namely the finding that there could be a fair trial as there was no specific prejudice, the physical and economic consequences for the appellant should the extension not be granted were very serious, and the appellant had explained the delay in bringing the proceeding.

30 Further, the explanation provided by the appellant was reasonable, and the primary judge had found the appellant to be truthful and credible. In those circumstances, he said that no proper application of the required synthesis could have proceeded on the basis that the issue of delay was determinative.

31 The appellant distinguished between the delay in this case, and three other types of cases in which the delay can be considered of significance in the synthesis:

(a) where a deliberate decision is made not to commence proceedings;[4]

(b) where a party is careless of their rights;[5] or

(c) where the explanation for the delay is flimsy or ridiculous.

32 He submitted that in the circumstances his explanation of the length and reasons for the delay was entirely reasonable. The appellant submitted the correct approach to assessing this question was identified by J Forrest J in Davies v Nilson:

[I]t is often easy for lawyers (and judges) to fall into the trap of evaluating a lay persons actions through an adversarial legal prism. Ms Davies was a young woman with no legal training and, in particular, no knowledge of the intricacies of tort law and the statutory modifications in this state. On her account, she had not been told anything about limitation provisions or common law claims. Whilst a more prudent person may have sought a second opinion, I do not regard her lack of action in this period as fatal.[6]

33 The correct prism through which to consider the explanation is that of the appellant. In that context, he submitted that as the primary judge had found that the appellant, and by extension the explanation, was truthful and credible, the judge's reasons do not explain how this delay was unreasonable and are in this respect inadequate.

34 The respondent identified six principal issues in defence of the primary judge's conclusion.

35 First, they submitted the appellant's submission that the primary judge's decision was 'plainly wrong' was unsustainable.

36 Second, they contended that the appellant had incorrectly submitted that the discretion is s 27K is limited or conditioned when the appellant suggested, by reference to Brisbane South Regional Health Authority v Taylor, that 'the real question in such applications is whether the delay has made the chances of a fair trial unlikely and if there is not there is no reason why the discretion should not be exercised in the applicant's favour'.[7]

37 Third, factors other than specific prejudice may have significance, as emphasised in cases such as Prince Alfred College[8] (a deliberate decision not to bring proceedings earlier) and Itek Graphix[9] (where a party was careless of their rights). Each application turns on its own facts, and the primary judge, on a fair reading, synthesized the competing considerations and arrived at a conclusion that took account of them all.

38 Fourth, the judge expressly addressed each of the factors prescribed by s 27L. The appellant's suggestion that further reasons were required 'does not properly appreciate the task' which requires a 'synthesis of incommensurable considerations'.[10] Further, in evaluating the adequacy of the reasons, written submissions had been filed in advance, the application was supported by three short affidavits, the hearing took approximately an hour and a half, and the cross-examination of the appellant extended over approximately 15 pages of transcript. In those circumstances they submitted that the judge prepared sufficiently detailed reasons.

39 Fifth, the respondent submitted that the appellant's reliance upon his 'stoicism' as a significant factor in determining the reasonableness of his decision not to seek legal advice earlier is 'simply another way of saying that he decided to put up with serious consequences...instead of seeking legal advice about them'.

40 Sixth, it was open to the judge to regard the delay in this case as 'inordinate'.

41 Turning to the first point, I am satisfied that the decision not to extend the limitation period was plainly wrong, unreasonable, or unjust, and bespoke error in the synthesis of the relevant factors. Although reviewable for specific error (which was the second point, dealt with below), it is not necessary to identify the precise nature of the error. The exercise of the discretion may be reviewed on the ground that it was unreasonable or plainly unjust and permitted the inference that in some way the discretion miscarried.[11]

42 For the reasons that follow, I infer that the primary judge, who identified the proper approach and the material considerations, failed to properly synthesise those material considerations when determining whether it was just and reasonable to order the extension of the period of limitation.[12]

43 First, the judge concluded that a fair trial could be held. The respondent alleged no specific prejudice and none was found. Acknowledging the prospect of presumptive prejudice was clearly correct, as McHugh J said in Brisbane South Regional Health Authority v Taylor:

Sometimes the deterioration in 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 in 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 anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.[13]

44 However, how presumptive prejudice should be evaluated in the process of synthesis required careful consideration. Here, it appears that presumed prejudice may have been over emphasised. The following features of the proposed proceeding discount the significance of presumed prejudice:

(b) the relevant hospital records exist, and have been obtained; and

(c) the nature of the proceeding is such that a key focus of the trial, whether reasonable medical practice was employed, is a question that is likely to be determined by expert evidence, and not be dependent on stale recollections.

45 The conclusion that if the limitation period can be extended the defendants will receive a fair trial, despite the possible implications of presumptive prejudice, is a powerful consideration in the exercise of synthesis of the material considerations.

46 Second, s 27L(2) requires that consideration be given to the nature and extent of the plaintiff's loss; and to the nature of the defendant's conduct. These factors were not considered in any detail by the primary judge, who simply stated:

Mr Holcombe's current medical condition is such that his wellbeing and future employability is at risk. Whether or not his medical condition was caused by the defendants is in dispute.

His loss is potentially significant.[14]

47 The judge's findings were that the appellant suffered an ongoing condition that may have been significantly exacerbated by the conduct of the respondents, his pain and suffering had significantly worsened, his enjoyment of life was deteriorating, as were his prospects of remaining in employment and being able to support his family. To conclude merely that his loss was potentially significant, while correct, does not demonstrate that for the purpose of the synthesis of the relevant considerations the nature and extent of the appellant's condition and his prospective loss were appropriately evaluated.

48 Refusal to extend the period of limitation denies the plaintiff compensation for a substantial and significant injury, when the respondent can have a fair trial on the issue of whether negligence was a cause of that injury. Moreover the nature of the defendant's conduct, an allegation of professional negligence in the delivery of health services should be a matter brought into the evaluation. The loss of that opportunity considerably prejudices the appellant. This factor, too, is a powerful consideration in the synthesis of material considerations.

49 What then was the circumstance that forced the conclusion that extension of the limitation period would be unjust and unreasonable for the respondents? In essence, the judge reasoned that the prospect that there could be a fair trial could not swamp other considerations, appearing to somehow distinguish the observations of

McHugh J in Brisbane South Regional Health Authority.[15] The judge stated that the extension needed to not simply be just, but also be reasonable, a distinction that I find curious although drawn from the language of the statute. What was unreasonable, according to the judge's reasons, was the appellant's conduct in not obtaining legal advice in a timely way.

50 Third, the issue of whether the appellant's conduct was unreasonable not only contributed to whether the process of syntheses of the material consideration must have been erroneous but also demonstrated specific error. It will commonly be the case that an applicant for an extension of time has acted unreasonably in some respect. Limitation periods are generous and imposed for good reason. However, the matters on which s 27L focusses that are specifically enumerated out of all of the circumstances of the particular application do not focus on whether the applicant's delay was unreasonable. There is an inquiry about the length and reasons for the delay but what must be (just and) reasonable is the order extending the limitation period.

51 Although the judge unsurprisingly concluded that the delay was of inordinate length, in all of the circumstances of the case, the inordinate length of the delay contributed little in the evaluation of the material considerations to determine the ultimate question. The question was not whether the conduct of the appellant was unreasonable. It was whether an order for the extension of the limitation period would be just and reasonable having regard to all of the circumstances of the case. The issue when synthesising the material considerations is whether the length of the delay was explained. In this respect, the judge addressed the wrong consideration and thus gave inappropriate weight to an issue of whether, objectively assessed, the appellant's conduct in not issuing his proceeding within time was reasonable.

52 Thus the judge evaluated the relevant factors on the basis of a finding that the appellant's delay in commencing proceedings was deliberate. This characterisation necessarily placed undue, and erroneous, emphasis on the issue of delay in the judge's reasoning of the synthesis of the material factors. On her findings, his delay was caused by his ignorance. All that was deliberate was the appellant's decision to accept the advice of his parents. The explanation of his ignorance, consequent on parental advice, was reasonable.

53 The judge's finding that the appellant was 'truthful and credible'[16] conflicted with the finding that the appellant's delay was not reasonable. There was an explanation, which supported the conclusion that the appellant was 'unsure' as to why he did not bring proceedings. The factual findings were that the delay was explained in a manner that was truthful and credible. I accept the appellant's submission that he gave a reasonable and understandable explanation for his delay and his subsequent change of mind. It is a common feature of human experience that children accept advice from their parents. As in Davies v Nilson, the circumstances inform whether an explanation for delay is satisfactory. Here, that context included:

(a) a traumatic family experience in considering legal redress against suspected medical negligence which remained part of the appellant's family dynamic;

(b) the worsening of the appellant's symptoms in recent times, which in addition caused the following concerns;

(i) that the appellant would no longer be able to sustain his employment;

(ii) that the appellant was employed in a casual position and would not be paid for days he was unable to work or hospitalised due to his worsening condition;

(iii) that the appellant's family was dependent on his employment as their primary source of income.

(c) the appellant heard a radio advertisement which raised the possibility of obtaining legal advice at no expense to him; and

(d) the appellant was unaware of the applicable time limits on bringing his claim until he obtained legal advice;[17]

(e) the appellant is 'stoic' and evidently tried to simply 'put up with' the discomfort caused by his condition.

54 The emphasis given to the objective fact, not known to the appellant, that legal advice would not confirm the advice given by his parents resulted in error in the evaluation of the syntheses of material factors. Once it is accepted that the appellant provided a satisfactory explanation for the delay, the emphasis to be given to that factor in the synthesis is diminished while two powerful factors that support the conclusion that an extension would be just and reasonable remained operative.

55 Given the result reached by the primary judge, I am satisfied that the judge failed to properly synthesise the material considerations when determining whether it was just and reasonable to order the extension of the period of limitation. Accordingly I am satisfied that the judge erred in the exercise of the discretion as to whether to extend the limitation period and grounds 1-3 and 7 are made out. The appeal must be allowed.

56 Although it is not necessary to express a final view on the remaining grounds, I am satisfied for the reasons already given that ground 6 is made out and there was specific error on the part of the primary judge who did not address a proper consideration when concluding that it was not reasonable for the appellant to have delayed so long in taking legal advice. On the other hand, ground 4 is not made out. I was not persuaded that the judge failed to provide adequate reasons for the conclusion reached. In my view, a proper path of reasoning is clearly evident in the reasons for judgment and that conclusion is unaffected by my reasoning on the other grounds.

57 I add that I was not persuaded by the appellant's argument that the primary judge's use of the words 'weight' indicated that a 'weighing exercise' rather than a 'synthesizing exercise' was undertaken. The judge expressly identified the correct exercise to undertake. In this particular respect, the appellant's argument was purely semantic. There are many words and phrases - probative value, compelling, persuasive, weight - that can be used to express a judges' reasoning about competing and/or incommensurable considerations. Although perhaps the use of the word 'weight' in this context was best avoided, without more it did not indicate error.

58 The appeal will be allowed. The orders made 1 November 2017 are set aside, and the limitation period in respect of the appellant's causes of action is extended to 21 December 2016.

[1] Holcombe v Hunt [2017] VSC 666 ('Reasons').

[4] Prince Alfred College v Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 ('Prince Alfred College').

[5] Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 ('Itek Graphix').

[6] [2015] VSC 584 [106].

[7] [1996] HCA 25; (1996) 186 CLR 541, 550 (McHugh J).

[8] [2016] HCA 37; (2016) 258 CLR 134.

[9] [2002] NSWCA 104; (2002) 54 NSWLR 207.

[10] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, 116 (Calloway JA).

[11] House v R (1936) 55CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

[13] [1996] HCA 25; (1996) 186 CLR 541, 551.

[15] Set out above at [36].

[17] Although I accept the primary judge's observations that the relevance of this factor is case-specific.