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[2026] NSWSC 1073
Supreme Court of NSW
2026-09-09
Muston J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Costantino v Hillier [2026] NSWSC 1073
Hearing dates: 18 - 19 August 2026
Date of orders: 9 September 2026
Decision date: 09 September 2026
Jurisdiction: Common Law
Muston J
Decision: The separate question is answered as follows:
The claim for the causes of action pleaded in respect of the surgeries performed by the defendant on 5 July 2012 and 27 November 2014 was not brought after the expiration of the 3-year post discoverability limitation period and is therefore not precluded by s 50C(1)(a) and s 50D of the Limitation Act 1969 (NSW).
For further orders see [69].
Catchwords: LIMITATION OF ACTIONS — application for extension under s 62A of the Limitation Act 1969 (NSW) — medical negligence — where 4 of the 6 relevant surgeries occurred more than 12 years before proceedings were commenced — whether plaintiff ought to have known that the injuries she now claims to have suffered were caused by the fault of the defendant in a sense contemplated by s 50D(1)(b) of the Limitation Act 1969 (NSW)
Legislation Cited: Limitation Act 1969 (NSW), ss 50C, 50D, 62A, 62B
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Vonhoff v Hillier [2024] NSWSC 1285
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Category: Procedural rulings
Parties: Deon Costantino (Plaintiff)
Terrence Hillier (Defendant)
Representation: Counsel:
J Hillier (Plaintiff)
S Kalfas SC / M Hamdan (Defendant)
Solicitors:
Commins Hendriks (Plaintiff)
HWL Ebsworth (Defendant)
File Number(s): 2024/00116906
In late 2000, the plaintiff was working in the delicatessen department of her local Safeways supermarket. She was, at that time, 27 years old. She injured her back while moving a heavy container. After some period of conservative treatment, she consulted the defendant. He was then an orthopaedic surgeon practising in Albury.
Between 12 December 2002 and 27 November 2014, the defendant performed six different surgeries on and around the plaintiff’s spine. The dates on which those surgeries were performed, and the nature of each procedure, were as follows:
(a) L4/5 Charite disc replacement performed on 12 December 2002 (first surgery). (b) L4/5 DIAM stabilisation surgery performed on 19 July 2007 (second surgery). (c) L3/4 and L4/5 Dynesys and soft stabilisation/pedicle stabilisation performed on 1 May 2008 (third surgery). (d) L4/5 posterolateral fusion with legacy fixation and removal of Dynesys and DIAM implant performed on 6 March 2009 (fourth surgery). (e) Re-exploration of the L4/5 fusion and removal of spinal implants performed on 5 July 2012 (fifth surgery). (f) Left S1 joint fusion with S1 Lok implants performed on 27 November 2014 (sixth surgery).
On 28 March 2024, the plaintiff commenced proceedings against the defendant in which she alleged negligence in connection with each of the surgeries he had performed on her. For present purposes, it is sufficient to adopt the plaintiff’s summary of those claims.
Put simply, it is her case that the six surgeries performed by the defendant were not clinically indicated and were unwarranted.
In relation to the first surgery, the plaintiff claims that the defendant knew, or ought reasonably to have known, that the Charite disc replacement procedure he performed on her was associated with consistently poor outcomes. She says that this fact should have alerted the defendant to the probability that the procedure he was proposing would fail, and that she would require further surgical intervention.
The plaintiff also says that she was never properly advised by the defendant of the risks associated with any of the surgeries he performed on her, including the risk that those surgeries might fail to relieve her pain symptoms or make those symptoms worse. More particularly, she claims that the defendant failed to identify that the surgery he was proposing would cause mechanical stress to her spine.
The plaintiff goes on to assert that, by failing to pursue nonsurgical options — including physical therapy — before recommending that she undergo the first surgery, the conduct of the defendant fell short of what would have been widely accepted in Australia in 2002 as competent professional practice.
Finally, the plaintiff says she is entitled to recover exemplary and aggravated damages on the basis that the defendant performed surgery upon her without having obtained her properly informed consent.
These proceedings are at an early stage in their preparation. In defending the proceedings, the defendant asserts that the claims made by the plaintiff against him were, at the time she commenced her proceedings, statute barred.
This judgment deals with a series of interrelated limitations issues which have been raised for preliminary determination by the parties. In acceding to the parties’ request that these issues be dealt with separately and in advance of all other issues, I recognise that it is generally undesirable to determine limitations issues in interlocutory proceedings: Wardley Australia Ltd v Western Aus**tralia (1992) 175 CLR 514 at 532; [1992] HCA 55. However, here I am satisfied that the separate issues have limited factual overlap with the substantive issues raised in the proceedings. The potential avoidance of unnecessary costs — should aspects of these preliminary issues be determined against the interests of the plaintiff — further justified the approach which has been proposed by the parties for their determination.
Before turning to the substantive issues, I note that, in support of this application, the parties collectively tendered in excess of six volumes of documents. At that time, I made very clear to the parties that I would not have regard to any document to which my attention was not drawn during the course of any cross examination or their respective submissions to me. Ultimately, only a tiny handful of documents were referred to by the parties in either context. Consistent with the warning that I provided to the parties, I have not had regard to any document to which my attention was not specifically drawn, and do not consider those of the documents to which no reference was made by the parties to have been before me — in any practical sense — on this application.
As all six of the surgeries were performed on the plaintiff after 6 December 2002, the parties agreed that Division 6 of Part 2 of the Limitation Act 1969 (NSW) applies to the plaintiff’s claims.
Sections 50C and 50D of the Act provide:
50C Limitation period for personal injury actions
(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire—
(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
Note—
The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.
(2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times—
(a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased,
(b) the appointment of the plaintiff as the deceased’s personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment,
(c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased’s personal representative.
(3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.
50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts—
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
62A Extension of 12 year long-stop limitation period
(1) A person claiming to have a cause of action to which Division 6 of Part 2 applies may apply to a court for the extension of the 12 year long-stop limitation period applicable to the cause of action under that Division.
(2) The court is to hear such of the persons likely to be affected by the application as it sees fit and may, if it decides that it is just and reasonable to do so, order the extension of the 12 year long-stop limitation period applicable to the cause of action for such period as the court determines, but not so as to extend that period beyond the period of 3 years after the date on which the cause of action is discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.
(3) If a court orders the extension of the 12 year long-stop limitation period for a cause of action under this section, that limitation period is accordingly extended for the purposes of—
(a) an action brought by the applicant in that court on the cause of action that the applicant claims to have, and
(b) section 26 (1) (b) in relation to any associated action for contribution under section 5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946 brought by the person against whom that cause of action lies.
(4) The court may, in an order under this section in relation to a cause of action arising under the Compensation to Relatives Act 1897, exclude any beneficiary or class of beneficiaries from the operation of the order, if it decides that it is just and reasonable to do so.
(5) If a court excludes a beneficiary or class of beneficiaries from the operation of an order under this section, the beneficiary or beneficiaries are to be treated as not being entitled to damages in any action on a cause of action arising under the Compensation to Relatives Act 1897 brought as a consequence of the making of the order.
62B Matters to be considered in determining application for extension of 12 year long-stop limitation period
(1) In exercising the powers conferred on it by section 62A, 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 nature and extent of the plaintiff’s injury or loss,
(d) any conduct of the defendant that induced the plaintiff to delay bringing the action,
(e) 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,
(f) the time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.
(2) In the application of this section in respect of a cause of action that has survived on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.
(3) In the application of this section in respect of a cause of action arising under the Compensation to Relatives Act 1897, references in subsection (1) to the plaintiff include references to the deceased, the personal representative of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.
It was not in dispute that the first to fourth surgeries were performed more than 12 years before the plaintiff commenced her proceedings. As such, it was also not in dispute that — in so far as she makes allegations of negligence in relation to those surgeries — the plaintiff’s claim has been brought outside the long-stop limitation period provided for in s 50C(1)(b) of the Act. By her amended notice of motion, the plaintiff seeks an extension of that period under s 62A of the Act.
The fifth and sixth surgeries were performed by the defendant within 12 years of the commencement of the proceedings by the plaintiff. As such, they are not captured by s 50C(1)(b) of the Act. However, the defendant has asserted that any cause of action the plaintiff might have arising out of any of the surgeries he performed on her — including the fifth and sixth surgeries — was discoverable before 28 March 2021. It was said by the defendant that this fact has two important consequences.
First, he said that, in those circumstances, s 62A(2) of the Act precludes any extension of the 12 year long-stop period which would result in the plaintiff’s claims arising out of the first to fourth surgeries having been commenced within time. Secondly, he said that the plaintiff’s claims arising out of the fifth and sixth surgeries are also statute barred by reason of s 50C(1)(a) of the Act and that the Court has no power to extend the 3-year post discoverability limitation period.
Given the interrelationship between the application made by the plaintiff under s 62A of the Act and the defendant’s contention regarding discoverability, the parties agreed that both should be determined together. To that end, orders were made that the following question be determined separately in the proceedings, and concurrently with the hearing of the plaintiff’s amended notice of motion:
“Whether the claim for the causes of action pleaded in respect of the surgeries performed by the defendant on 5 July 2012 and 27 November 2014 was brought after the expiration of the 3-year post discoverability limitation period and is therefore not maintainable pursuant to s 50C(1)(a) and s 50D of the Limitation Act 1969 (NSW)”.
The parties submitted, and I agree, that I should approach the issues raised in this hearing by first determining whether the cause of action arising out of any or all of the surgeries performed on the plaintiff by the defendant were, in the relevant sense, discoverable before 28 March 2021. This first issue raises an interesting question of onus. The defendant accepted that he bears the onus of establishing that any cause of action arising out of the fifth and sixth surgeries was discoverable before 28 March 2021. In relation to the first to fourth surgeries, the defendant said that the onus rests with the plaintiff to prove that any cause of action arising out of those procedures was not discoverable before 28 March 2021. This is said to be the consequence of the plaintiff’s need to obtain an extension of the long-stop limitation period in relation to these surgeries and the limiting role that discoverability plays in her entitlement to that relief. As interesting as this question may be, my ultimate conclusion on discoverability in this case has not turned on any question of onus.
The parties further agreed that, if the causes of action were not discoverable before 28 March 2021, I should go on to consider whether — in the context of the claims made by the plaintiff arising out of the first to fourth surgeries — it would be “just and reasonable” to extend the 12 year long-stop limitation period so as to permit those claims to be brought.
The question of when each cause of action was discoverable must be resolved by reference to s 50D(1) of the Act. Ultimately, only one small aspect of the three limbs of the definition provided by that section was in issue between the parties.
The plaintiff accepted that the performance of each surgery constituted the relevant “injury” for the purpose of any cause of action arising in connection with any of them. The plaintiff further accepted that she knew that each surgery was performed by the defendant. It was not suggested that the injuries said by the plaintiff to have arisen from any of the six surgeries had any latency or were at any time insufficiently serious to have justified the bringing of an action. As such, the only real issue in dispute regarding the discoverability of the relevant causes of action was whether the plaintiff knew, or ought to have known, that the relevant injuries were “caused by the fault of the defendant”.
The plaintiff said that the first time she became aware that the injuries of which she now complains had been caused by the fault of the defendant was during her consultation with Dr Jeremy Russell on 10 August 2021.
The plaintiff’s final consultation with the defendant took place on 2 December 2020. At around that time, she understood the defendant was winding down his practice with a view to retiring. She said that in early 2020 the defendant had recommended she consult Dr Anil Nair to discuss the possibility of a further fusion procedure to treat her lower back pain. During a consultation with Dr Nair, he suggested that the plaintiff obtain a second opinion. She made an appointment to see Dr Russell. She had found him through her own research.
On 10 August 2021, he told her that he did not agree with Dr Nair’s suggestion that she have further fusion surgery and instead referred her for further scans and tests. She claims that during this consultation Dr Russell suggested to her that the defendant had performed all of her surgeries for no reason and that she had never had a disc problem but would continue to suffer back pain for the remainder of her life because of the surgeries the defendant had performed. She said that this was the first time any person treating her had raised any concerns at all about the treatment provided by the defendant.
Immediately after her appointment with Dr Russell, the plaintiff contacted her then solicitor John Suta, who in turn referred her to another solicitor, Kim Todd. Ms Todd recommended that she contact her current solicitors, Commins Hendricks, which she did on the same day.
The defendant did not suggest that the plaintiff actually knew that the injuries she claims to have suffered were caused by the fault of the defendant at any point prior to her consultation with Dr Russell. Rather, he said that she ought to have been aware of that fact at an earlier time.
In advancing this contention, the defendant relied principally on the fact that the plaintiff underwent six surgeries at the hands of the defendant over a period of almost 12 years. She came to him with lower back pain. He made repeated “promises” to the effect that each of the surgeries he performed would resolve her lower back pain. Those promises were never fulfilled. Her back pain never resolved. It was said that this alone should have triggered an enquiry by the plaintiff of the type which she ultimately made when she consulted Dr Russell. It was said that such an enquiry would have led to the plaintiff discovering the facts which prompted the engagement of her current lawyers.
In January 2010, the plaintiff was sent by her former employer to see Dr Brendan Dooley, an orthopaedic surgeon. The purpose of this consultation appears to have been to enable Dr Dooley to express a view on whether a further lumbo-sacral disc fusion at a level below the previous spinal fusion surgery was warranted and, more importantly, should be paid for by her former employer in connection with its workers compensation obligations. A letter written by Dr Dooley at that time makes clear that he did not believe any further surgery was required and that he had recommended to the plaintiff that she seek a second opinion from any one of “three top experts” he had recommended to her. The plaintiff now has no memory of that consultation.
At around the same time, the plaintiff was receiving facet joint injections from the defendant. She recalled that a nurse said to her in relation to those injections: “you can’t just keep having these all the time”. The plaintiff said that she raised this comment with the defendant who explained to her that the source of her pain was in a “really hard to reach spot”, which she accepted from him.
In December 2013, after the defendant had recommended that the plaintiff undergo the sixth surgery, she was sent by her former employer to see Mr Ronald Haigh, another orthopaedic surgeon. Mr Haigh’s report to her former employer included the following observation:
“Opinions vary as to the advisability or otherwise of disc replacement surgery and indeed lumbar spinal fusion for pain of discogenic origin. Such surgery has a relatively unpredictable outcome.”
The plaintiff had no recollection of Mr Haigh sharing this view with her during the consultation and the evidence to which my attention was drawn does not suggest that she was ever provided with a copy of his report. Mr Haigh went on to express the view that the procedure then being recommended by the defendant was not required. Once again, the plaintiff did not recall being told this by Mr Haigh.
However, she was clearly aware that her former employer refused to fund the sixth surgery. She challenged this decision before a medical panel constituted pursuant to the A**ccident C**ompensation A**ct 1985 (Vic). The panel concluded that the plaintiff had no intrinsic abnormality or medical condition of the left or right sacroiliac joints and, on that basis, disagreed with the defendant’s diagnosis of “sacroiliac joint pain” or “sacroiliac joint instability”. It endorsed the decision of the plaintiff’s former employer not to fund the sixth surgery. That surgery was ultimately paid for by the plaintiff’s parents.
Finally, the defendant pointed to a report dated 19 July 2018 prepared by Dr Graeme Doig, orthopaedic surgeon, in which he too expressed the view that the plaintiff’s then symptoms were related to “her initial back injury and failed surgery”. The evidence did not reveal whether this opinion was ever brought to the attention of the plaintiff.
The defendant pointed to each of the matters to which I have referred above and submitted that — either alone or in combination — they would have indicated to any reasonable person in the position of the plaintiff that she should seek a second opinion from someone other than the defendant and that, had she done so, she would have discovered much sooner what was ultimately revealed to her by Dr Russell in August 2021.
These submissions must be assessed against what I accept to have been the reality that the plaintiff had confidence in the advice being provided to her by the defendant. He had been treating her back since she initially suffered the workplace injury and she trusted him. While the lack of progress during this time might have suggested to some people that a second opinion was warranted, the plaintiff would instead appear to have become fixated on the continuing battle she was then waging with her former employer in connection with its reluctance to pay for the treatment being recommended by the defendant. This is relevant for several reasons.
First, because it reveals that the plaintiff had access to a lawyer who was providing her with advice and could have advised her in relation to any claim against the defendant had she sought such advice.
Secondly, because it did produce the reports to which I have referred above. In various ways, those reports might be said to have cast some doubt on the appropriateness of the treatment being recommended by the defendant during that time. Implicitly, it might be said that this, in combination with the absence of any real improvement in the plaintiff’s condition, should have caused her to question the treatment that he had already provided.
Thirdly, it does provide some explanation for the attitude and approach taken to these issues by the plaintiff. While it is not a complete answer to the defendant’s submission, the fact that the plaintiff was clearly fixated on her continuing disputes with her former employer over the funding of the treatment being provided by the defendant means that this is not a case in which it can be said that the plaintiff sat back and did nothing to further her understanding of the relevant issues. Rather, she appears to have been focusing her attention on what may — if there is any substance to the claims she now wishes to bring — have been the wrong issue.
Finally, it highlights the fact that, despite continuing resistance, the plaintiff’s former employer did fund the treatment being recommended by the defendant up to and including the fifth surgery. This fact is unlikely to have diminished the confidence which the plaintiff placed in the advice she was being given by the defendant at that time and would not have led a reasonable person in her position to have jumped quickly, or at all, to the conclusion that a second opinion was required.
As was observed by Cavanagh J in Vonhoff v Hillier [2024] NSWSC 1285 at [77], the limitation period is not fixed by the plaintiff’s own choice as to when she chose to seek advice in relation to the treatment provided to her by the defendant. Rather, it requires the Court to make an objective assessment of what she ought to have known or discovered if she had acted reasonably having regard to the totality of her circumstances.
While I consider the matter to be finely balanced, I am not satisfied that the plaintiff ought to have known or discovered that the injuries she now claims to have suffered were caused by the fault of the defendant in the sense contemplated by s 50D(1)(b) of the Act at any point prior to her consultation with Dr Russell on 10 August 2021. As such, I am not satisfied that the causes of action arising out of any of the surgeries performed on the plaintiff by the defendant were discoverable before that date.
In answering this question, I must have regard to the considerations identified in s 62B(1) of the Act.
The plaintiff accepts that the delay in this case is lengthy. The first surgery was performed more than 21 years before the proceedings were commenced. The fourth surgery was performed 15 years before the proceedings were commenced.
In seeking to explain that delay, the plaintiff again pointed to the matters on which she had relied on the question of discoverability. I have addressed those matters above and accept that, at least until late 2021, they provide a reasonable explanation for the delay.
I also accept that the defendant himself played some role in fostering the trust and confidence which the plaintiff placed in him. There is nothing unusual or inappropriate about that in the context of a doctor-patient relationship. I do not think his actions can properly be said to have actively induced the plaintiff to delay bringing any action against him. However, I am satisfied that the nature of the professional relationship which developed between the plaintiff and the defendant contributed to the delay in the bringing of these proceedings and does provide some further explanation for it.
The period between the plaintiff’s consultation with Dr Russell on 10 August 2021 and when the proceedings were finally commenced on 28 March 2024 is more problematic. In seeking to explain this final component of the delay, the plaintiff pointed to three essential matters.
First, she noted that she had undergone two further surgeries at the hands of Dr Russell, which compromised her ability to provide instructions to her solicitors.
Secondly, she pointed to the time taken by her solicitors to gather those of the plaintiff’s medical records that were still available.
Thirdly, she referred to the fact that she needed to obtain expert evidence supportive of her claim before it could be commenced. I accept that this step could not have been taken until the relevant contemporaneous medical records had been gathered by the plaintiff’s solicitors.
While I accept that each of these matters contributed to the delay in commencing the proceedings, I am not satisfied that — even collectively — they provide an entirely satisfactory explanation for the two and a half years it took for the plaintiff to commence her proceedings after first consulting Dr Russell. In the context of a claim which — at the time of that consultation — related to events which had occurred well more than 12 years earlier, it was incumbent on the plaintiff to have moved as quickly as was practicable to commence any proceedings she might have chosen to bring, so as to minimise the prejudice that might be occasioned by what was already a very extensive delay.
The prejudice caused to the defendant by the lengthy delay between each of the first to fourth surgeries and the ultimate commencement of the proceedings is significant. As was pointed out by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; [1996] HCA 25:
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. 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 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.”
The fact that the first to fourth surgeries were performed between 15 and 21 years before the proceedings were commenced by the plaintiff means that the presumptive prejudice alluded to in the above extract will be particularly pronounced in this case. Moreover, it overlays what I am satisfied is more tangible prejudice in this case.
The defendant is now over 80 years old. While he adduced no evidence which described the quality of his recollection of the first to fourth surgeries or the circumstances surrounding them, his memory of those events will inevitably be weathered. The plaintiff herself frankly acknowledged that she has very little recollection of those events; a matter which I accept may compromise her ability to discharge any evidentiary onus and, in that sense, may not be a source of prejudice to the defendant. However, there is no reason to think that the defendant would now have a better recollection of those events than the plaintiff; in fact, the opposite is more likely to be the case.
The plaintiff’s mother — who accompanied her to many of her medical appointments during the relevant years — was said by counsel who appeared for the plaintiff to be unavailable.
The plaintiff submitted that the extensive assumptions put by the defendant’s solicitors to experts retained on his behalf in connection with the proceedings must have been based on instructions and, as such, suggest either that the defendant recalls the relevant events or that those events are sufficiently reflected in documents still available to the defendant and his solicitors. In particular, she referred to the fact that a large volume of contemporaneous imaging of the plaintiff’s spine is still available.
The fact that the defendant’s solicitors have been able to compile, and provide to expert witnesses, an extensive series of assumptions does point to the availability of some material and — at least potentially — a claim by the defendant to have some recollection of the relevant events. As the plaintiff noted, contemporaneous imaging is an important aspect of that objective history and is still available.
However, what has been put forward by the defendant’s solicitors are only assumptions. No doubt aspects of those assumptions will be disputed by the plaintiff; particularly to the extent that they are not clearly supported by objective contemporaneous material. The need to resolve such factual disputes as might emerge in relation to the facts traversed in these assumptions is where the real prejudice starts to emerge.
The unchallenged evidence of the defendant’s solicitor reveals that many, potentially important, items of objective evidence are no longer available.
The initial referral letter sent by the plaintiff’s GP to the defendant has not been located. In the context of the claims made by the plaintiff, this document is potentially important. It would likely have contained information about the symptoms then being experienced by the plaintiff, any conservative management of the plaintiff’s condition which had been attempted before she was referred to the defendant, and the result of that conservative management. All of that potential information may have been relevant to an assessment of the appropriateness of treatment recommended by the defendant and also to the nature of the advice that should have been provided by the defendant in connection with that treatment. It may also have informed the question of what the plaintiff might have done had she been provided with that advice.
Records of the spinal physiotherapist who provided treatment to the plaintiff on multiple occasions between August 2003 and as late as May 2014 have not been located. Records maintained by an individual who provided physiotherapy and remedial massage care to the plaintiff between 2001 and 2006 have also been lost. So too have some of the records maintained by a pain specialist who the plaintiff consulted during the relevant period. Finally, a number of the files maintained by the solicitors who acted for the plaintiff in connection with her workers compensation claim have been destroyed.
Notes contained in any of these lost documents regarding physical observations which might have been made of the plaintiff, her response to any treatment provided, and the reporting by her of the symptoms she was experiencing could all have had an important bearing on issues of liability and/or causation. For this reason, the unavailability of this contemporaneous material gives rise to genuine prejudice.
Of even greater significance is the fact that the defendant’s own records are no longer intact. The potential for this to result in serious prejudice to the defendant is clear.
I recognise that the injury which the plaintiff claims to have suffered as a result of what she says was the negligence of the defendant is significant. However, the prejudice caused to the defendant by the passing of time is such that I do not think it would be “just and reasonable” to extend the 12 year long-stop period to permit the plaintiff to bring — and require the defendant to answer — that claim in so far as the first to fourth surgeries are concerned.
In line with that conclusion, two final issues arise.
First is the issue of costs. My preliminary view is that the costs of this hearing should be costs in the cause as both parties have achieved mixed success in relation to the issues I have been asked to determine at this stage.
Second is the issue of the pleading; the defendant has not sought to strike out the relevant paragraphs of the pleading that will be rendered redundant by this judgment, but this should probably occur so that the parties can move forward with certainty about what the consequences of this decision are for the case.
I propose to direct that the parties confer and agree upon short minutes of order which address those issues having regard to the conclusions I have reached above. Those orders should include an order for the amendment of the statement of claim. If agreement is reached in relation to the appropriate orders to be made for the costs of these proceedings, they too should be included in the short minutes of order. If necessary, I will hear the parties further on the question of costs and any other issue relating to the orders to be made consequent upon the conclusions I have reached above.
Accordingly, I make the following orders:
The separate question is answered as follows:
The claim for the causes of action pleaded in respect of the surgeries performed by the defendant on 5 July 2012 and 27 November 2014 was not brought after the expiration of the 3-year post discoverability limitation period and is therefore not precluded by s 50C(1)(a) and s 50D of the Limitation Act 1969 (NSW).
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Costantino
Hillier