[2009] NSWCA 35
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth of Australia v McClean (1996) 41 NSWLR 389
[2000] NSWCA 143
Kaye v Hoffman [2008] 17 Tas R 176
TASSC 2
Kaye v Hoffman [2009] 19 Tas R 357
TASSC 5
O'Neill v Foster (2004) 61 NSWLR 499
Source
Original judgment source is linked above.
Catchwords
[2009] NSWCA 35
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth of Australia v McClean (1996) 41 NSWLR 389[2000] NSWCA 143
Kaye v Hoffman [2008] 17 Tas R 176TASSC 2
Kaye v Hoffman [2009] 19 Tas R 357TASSC 5
O'Neill v Foster (2004) 61 NSWLR 499[2004] NSWSC 906
NSW v Gillett [2012] NSWCA 83
NSW v Kaiser (2022) 108 NSWLR 476
[2022] NSWCA 86
Smith v Commonwealth [2006] NSWSC 796
Stingel v Clark (2006) 226 CLR 442
[2006] HCA 37
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531
HIS HONOUR: The defendant in these proceedings is Dr Hillier who is an orthopaedic surgeon. He performed six operations on the plaintiff between 2 May 2002 and 11 June 2009. The plaintiff alleges that the medical services were not provided with reasonable skill and care which caused her loss or damage. The plaintiff accepts that any such loss or damage was suffered on the date of each operation.
On 8 February 2022 the plaintiff filed the Statement of Claim by which these proceedings were commenced. The causes of action relied upon for each operation are negligence, trespass, battery and breach of an implied contractual duty to act with reasonable skill and care. In his Defence filed on 18 August 2023, the defendant pleads that each cause of action is not maintainable by virtue of the Limitation Act 1969 (NSW).
By Further Amended Notice of Motion filed on 19 August 2024, the plaintiff seeks orders that the limitation periods be extended and/or declarations that the limitation periods were suspended by reason of the plaintiff being under a disability. No basis has been shown for the orders and declarations sought. The plaintiff's application is to be dismissed with costs.
[3]
Background
The following narrative is generally taken from the plaintiff's two witness statements dated 14 March 2024 and 11 April 2024, which were adduced into evidence for the purpose of this application, together with the plaintiff's cross examination. There are also some probative documents referred to below.
It is not necessary to make any findings of fact about the plaintiff's history before a workplace incident in 2001, the incident itself, the content of the advice given by the defendant, the operations performed by the defendant or details of the plaintiff's subsequent medical condition: Commonwealth of Australia v McClean (1996) 41 NSWLR 389 at 394-395 (Handley JA & Beazley JJA). These reasons do not include any findings of fact about any such matter. Some of the interaction between the plaintiff and defendant is relevant at a high level, but not controversial at that level. The only factual controversy which is relevant to the application relates to certain events in 2014 and the plaintiff's dealings with solicitors from time to time. My finding in relation to any such controversy is set out below.
The plaintiff was born in 1961 in Tumut, New South Wales. Her father was a truck driver and her mother largely performed domestic duties. She went to the local primary school and the local high school where she completed Year 10 but did not obtain a Higher School Certificate. After that she worked in cleaning, hospitality and nursing assistant jobs in Wagga Wagga and Tumbarumba.
When she was 19 she married her husband, Garry, who she knew from school. She had two children when she was 21 and 25, as a result of which she had some time out of the workforce. At some stage the plaintiff and Garry moved to a farm near Tumut where her husband ran cattle part-time until he retired from his paid employment as a corrections officer. After he retired, Garry operated the farm full-time. The farm is about 320 acres in two parcels about 20 kilometres apart.
The plaintiff was fit and healthy growing up although she experienced some common vicissitudes such as a broken arm at age 13 and a tonsillectomy. She enjoyed waterskiing, fishing, horse riding and, later, attending to her garden and home. The plaintiff used to smoke but quit just after she turned 40. With age she has experienced other health issues such as high blood pressure.
In 1996 the plaintiff experienced pain in her back, right leg and knee after a shift cleaning at the hospital. She had some time off. She had some medication and some physiotherapy. She made a workers compensation claim, which she lodged without the assistance of a solicitor. After a period on light duties at the hospital she returned to normal duties in June 1997.
[4]
Application by the plaintiff
Against this background, the plaintiff seeks the orders set out in the Further Amended Notice of Motion filed on 19 August 2024. The orders are:
"1. The limitation period or periods in respect to the Plaintiff's causes of action pertaining to the surgery performed by the Defendant on 2 May 2002, 3 October 2002 and 8 November 2002 be extended pursuant to s60G of the Limitation Act 1969 (NSW) to 8 February 2022.
2. That the limitation period or periods in respect of the Plaintiff's causes of action pertaining to the surgery performed by the Defendant on 13 February 2003, 27 January 2006, and 11 June 2009 be extended pursuant to ss 62A and 62B of the Limitation Act 1969 (NSW) to 8 February 2022.
3. A declaration pursuant to s 50F of the Limitation Act 1969 (NSW) that from 6 December 2002 to date that the Plaintiff was a person under a disability.
4. That the limitation period or periods in respect of the Plaintiff's causes of action pertaining to the surgery performed by the Defendant on 13 February 2003, 27 January 2006, and 11 June 2009 are suspended pursuant to s 50F of the Limitation Act 1969 (NSW).
5. A declaration pursuant to s 52 of the Limitation Act 1969 (NSW) that from 2 May 2002 to 6 December 2002 the Plaintiff was a person under a disability within the meaning of s 11(3) of the Limitation Act 1969 (NSW).
6. That the limitation period or periods in respect of the Plaintiff's causes of action pertaining to the surgery performed by the Defendant on 2 May 2002, 3 October 2002 and 8 November 2002 be extended pursuant to s 52 of the Limitation Act 1969 (NSW) that from 2 May 2022 to 6 December 2002 the Plaintiff was a person under a disability within the meaning of s 11(3) of the Limitation Act 1969 (NSW).
7. The costs of this motion are to be costs in the cause."
The orders sought in the Further Amended Notice of Motion may be divided into two groups. Orders 1, 5 and 6 relate to the first three operations and Orders 2, 3 and 4 relate to the last three operations. The reason for the division is that there were changes made to the limitation periods as from 6 December 2002.
[5]
Limitation Act 1969
The Limitation Act 1969 governs limitation periods in New South Wales. I will refer to it as the "Act". It is divided into four parts, the first of which addresses preliminary matters (including some definitions in s 11) and the last of which addresses miscellaneous matters. Of the substantive parts, Part 2 prescribes limitation periods which are generally fixed. Part 3 generally provides for the extension or suspension of limitation periods in various circumstances.
In 2002 amendments were made to the Act by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). By those amendments a new limitation regime was introduced for personal injury actions, which are relevantly defined in s 50A(1) as "a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise".
For personal injury actions, the new limitation regime applies, but only where the "act or omission" alleged to have resulted in the injury or death occurred on or after 6 December 2002: s 50A(2). For a claim which is concerned with an injury or death which is alleged to have resulted from an act or omission which occurred before 6 December 2002, the previous limitation regime continues to apply.
The practical significance of having the bifurcated scheme of two regimes operating simultaneously diminished as time passed and it became less common for a claim to arise from an act or omission which occurred before 6 December 2002. In this case, Dr Hillier's operations were performed so long ago that both regimes need to be considered. The claims concerned with the first three operations fall under the previous regime and the claims concerned with the last three operations fall under the new regime. Although there is some language which is common to the provisions of both regimes, under the bifurcated scheme the two regimes are discrete and need to be addressed separately.
[6]
Causes of action concerning injury resulting from the first three operations
[7]
Causes of action not maintainable
For a cause of action for personal injury resulting from any of the first three operations, the starting point is s 18A in Part 2 of the Act. Section 18A provides:
18A Personal 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, or
(c) a cause of action to which Division 6 applies.
Note - : Division 6 provides for the limitation period for non-motor accident actions for death or personal injury resulting from an incident that occurs on or after the commencement of that Division.
(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.
The causes of action relied upon by the plaintiff are negligence, trespass, battery and breach of contract. Each cause of action relates to personal injury to the plaintiff.
The wording of the chapeau of s 18A(1) covers the plaintiff's claim in negligence and, by virtue of the s 11 definition of "breach of duty", the claims in trespass and breach of contract. For limitation purposes, trespass includes battery: O'Neill v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906 at 502; [8] (Campbell J).
The commencement of the s 18A(2) limitation period turns on when the cause of action "accrues". For the tort of negligence, the cause of action accrues when the plaintiff suffers loss or damage: Hawkins v Clayton (1988) 164 CLR 539 at 583 (Deane J with whom Mason CJ and Wilson J agreed on this issue) and at 599 (Gaudron J). The plaintiff accepts that she first suffered loss or damage on the date of each operation.
The same applies to the torts of trespass and battery. The limitation period commences at the time of the commission of the wrong, being the date the trespass or battery occurred: Stingel v Clark (2006) 226 CLR 442 at 447; [2006] HCA 37at [2] (Gleeson CJ, Callinan, Heydon and Crennan JJ); O'Neill v Foster at 511 [46]-[47].
The result is the same for the cause of action for breach of the implied contractual obligation to perform the operations with reasonable care, each such cause of action accruing on the date of the operation by virtue of that date being the date of the breach Hawkins v Clayton at 583 (Mason CJ, Wilson, Brennan, Deane & Gaudron JJ).
[8]
Suspension for disability
As for suspension of the limitation period, s 52 of the Act provides:
52 Disability
(1) Subject to subsections (2) and (3) and subject to section 53, where -
(a) a person has a cause of action,
(b) the limitation period fixed by this Act for the cause of action has commenced to run, and
(c) the person is under a disability,
in that case -
(d) the running of the limitation period is suspended for the duration of the disability, and
(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after -
(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or
(ii) the date of the person's death,
(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates.
(2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period.
(3) This section does not apply to a cause of action to recover a penalty or forfeiture or sum by way of penalty or forfeiture, except where the person having the cause of action is an aggrieved party.
Section 11(3) of the Act specifies when a person is under a disability. It provides:
(3) For the purposes of this Act a person is under a disability -
(a) while the person is under the age of eighteen years, or
(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of -
(i) any disease or any impairment of his or her physical or mental condition,
(ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958,
(iii) war or warlike operations, or
(iv) circumstances arising out of war or warlike operations.
Although initially in dispute, the legal issues about the requirements of s 11(3) and the factual issues about the plaintiff's physical or mental condition fell away by the end of the hearing. The plaintiff conceded that the psychiatric evidence adduced on her behalf did not demonstrate that she was under a disability for any particular period or periods of time, and for any particular duration or durations, so as to result in a suspension of the s 18A(2) limitation period for the 13 years necessary to bring the Statement of Claim within time. Orders 5 and 6 of the Further Amended Notice of Motion were abandoned and need not be addressed further.
[9]
Extension under section 60G
The plaintiff did, however, press her claim for an extension of the limitation periods under s 60G. Within Part 3 of the Act, Division 3 provides for the extension of limitation periods for personal injury cases. Relevantly, Subdivision 3 provides:
60F Purpose of this Subdivision
The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.
60G Ordinary action (including surviving action)
(1) This section applies to a cause of action that accrues on or after 1 September 1990, 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 for an order under this section 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 as it determines.
…
60I Matters to be considered by court
(1) A court may not make an order under section 60G or 60H unless it is satisfied that -
(a) the plaintiff -
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant's act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii).
(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.
Sections 60E(2), (3) and (4) are not relevant to the plaintiff's case.
Order 1 of the Further Amended Notice of Motion seeks an order under s 60G(2) that the limitation periods which expired in 2005 be extended to the date on which the Statement of Claim was filed on 8 February 2022. In order to determine the plaintiff's application, three issues arise.
[10]
First precondition in section 60I(1)(a)(iii)
Addressing these three issues in turn, the parties made competing submissions about what is required by s 60I(1)(a)(iii), but they may have been no more than a difference in emphasis. In her submissions, the plaintiff appeared to equate the requirement in s 60I(1)(a)(iii) with that specified in s 50D(1)(b) which refers to the plaintiff's knowledge (actual or constructive) of "the fact that the injury or death was caused by the fault of the defendant". The plaintiff submitted that the s60I(1)(a)(iii) precondition is satisfied because she was unaware that there had been "fault".
For his part, the defendant submitted that, if the plaintiff was aware of the defendant's act or omission and the connection with the injury, the s 60I(1)(a)(iii) precondition is not satisfied. It was not necessary for the plaintiff to have been further aware that the defendant's act or omission answered the legal requirements of "fault", let alone "negligence".
As used in the Act, the term "act or omission" is not to be equated with "fault": Baker-Morrison v New South Wales (2009) 74 NSWLR 454 at 464; [2009] NSWCA 35 at [39] (Basten JA, with whom Ipp & MacFarlan JJA agreed). Section 60I(1)(a)(iii) is concerned with the act or omission and not the legal conclusions to be drawn from it: NSW v Gillett [2012] NSWCA 83 at [83] (Beazley JA, with whom McColl, Campbell, Young and Whealy JJA agreed).
The precise requirement specified in s 60I(1)(a)(iii) is explained in Dedousis v The Water Board (1994) 181 CLR 171 where the High Court (Deane, Dawson, Toohey, Gaudron & McHugh JJ) said at 181-182:
"The difficulty with these approaches is that they take an unduly restricted view of the acts and omissions upon which the plaintiff relies. The plaintiff's allegation of negligence is much broader than an assertion that the defendant failed to supply him with proper ear-muffs, as Clarke J.A. appears to assume. In the plaintiff's statement of claim, the particulars of negligence include, inter alia, allegations that the defendant failed to devise, institute, supervise and maintain a safe system of work; failed to adjust or modify the environment, equipment, plant and machinery in or with which the plaintiff had to work so as to reduce noise levels; failed to warn or educate the plaintiff about the dangers to health and hearing arising from the use of the equipment he would be required to use and from exposure to excessive noise levels; failed to issue, properly fit, and supervise the use of adequate personal hearing protection; failed to conduct workplace sound level surveys; and failed to carry out hearing tests on the plaintiff.
It is true that s. 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. However, if a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system, then the proper conclusion is that the plaintiff was "unaware of the connection between the personal injury and the defendant's act or omission" within the meaning of s. 60I(1)(a)(iii). On that hypothesis, the relevant act or omission is the employer's failure to provide the safer alternative system or to take suitable precautions."
[11]
Second precondition in section 60I(1)(b)
The second issue is whether the precondition in s 60I(1)(b) is satisfied. The date relevant to the second precondition is the date three years before the application for an extension was made. In the plaintiff's favour, the application for an extension can be viewed as having been made when the plaintiff filed her Reply in which she first asserted an entitlement to an extension. The Reply was filed on 23 October 2023. Three years prior to that was 23 October 2020.
I have already found that the plaintiff did not have actual awareness until 13 July 2021. The real question is whether the plaintiff ought to have become aware before 23 October 2020.
When a plaintiff "ought to have become aware" of a particular matter has been addressed in a number of decisions. Telstra Corporation Ltd v Rea [2002] NSWCA 44 was a case where the Court had to decide whether a fact known to the plaintiff's solicitor ought to be imputed to the plaintiff for the purpose of s 60I(1)(b). In concluding that it ought not, the Court commented on the meaning of "ought to have become aware". At [36]-[37], Foster AJA (with whom Mason P & Einstein J agreed) said:
"36 In my opinion, in the same way that sub-section 60I(b) has been called in aid of the construction of s 60I(1)(a), the earlier sub-section can assist in the construction of the latter. It is clear that ss 60F, G and I are aimed, in general, at alleviating the harsh effect of the limitation period prescribed by the legislation, in its impact upon certain plaintiffs in certain situations. It is the actual position of the plaintiff having regard to his personal state of knowledge which is the subject of the first sub-section of s 60I(1). Although the second sub-section cannot, in my view, relate to imputed knowledge of the plaintiff, it clearly relates to his or her constructive knowledge. However, in my view, that constructive knowledge should also be regarded as knowledge peculiar to the plaintiff. I consider, with respect, that this is what Priestley JA was referring to in the passage cited above from Spadotto where his Honour referred to "knowledge of which the plaintiff (as a person) ought to have become aware." In this regard, I consider that the remarks of Lord Reid in Smith v Central Asbestos Co [1973] AC 518 at 530, cited by Dawson J in Do Carmo are particularly apt, his Lordship saying,:
"In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with "the reasonable man". Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience."
37 In the result, I am of the view that the words "or ought to have become aware" in sub-section 60I(1)(b) do not import the concept of imputed awareness on the part of the plaintiff. They import constructive knowledge, but only to the limited extent that I have discussed. The question for the learned trial judge, in the present case, was whether the plaintiff himself, not the hypothetical reasonable man, should have become aware of the existence and relevance of the documents. In the situation where he had no actual knowledge of these documents, the question was, should he have made enquiries which would have revealed their existence and importance. In the circumstances where, as his Honour has found, the solicitor did not impart this information to the plaintiff there would appear to have been no rational basis for further enquiry on his part. In my view, his Honour was, in these circumstances, correct in holding that the plaintiff had no relevant constructive knowledge of these matters, prior to his obtaining actual knowledge, when conferring with his barrister. Accordingly, in my opinion, his Honour was correct in holding that the plaintiff had brought himself within sub-section 60I(1)(b) as well as 60I(1)(a)(iii)."
[12]
Just and reasonable - section 60G(2)
In view of that conclusion, the third issue about the Court's discretion to grant extensions does not arise. In the event that the conclusion is wrong, I have also considered whether extensions ought to be granted under s 60G(2). I have concluded that the plaintiff has not demonstrated that it is just and reasonable for the limitation periods for the first three operations to be extended under s 60G(2). My reasons for that conclusion are set out in the following paragraphs.
The plaintiff must satisfy the Court that grounds exist for exercising the discretion in her favour. There is an evidentiary onus on the defendant to raise any consideration telling against the exercise of discretion, but the ultimate onus remains on the plaintiff: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 (Dawson J), 547 (Toohey & Gummow JJ) and 551 (McHugh J). The reason why the burden lies with the plaintiff was explained by McHugh J at 552-553 (citations omitted):
"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:
'The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.'
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
[13]
Causes of action concerning injury resulting from the last three operations
[14]
Causes of action not maintainable
Under the bifurcated scheme, Division 6 of Part 2 of the Act applies to the causes of action for personal injury resulting from the three operations which occurred after 6 December 2002: s 50A(2). The s 18A(2) limitation period is therefore inapplicable: s 18A(1)(c). The limitation period is instead prescribed by s 50C(1), which provides:
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.
Regardless of when the plaintiff's causes of action were discoverable, the 12 year long-stop limitation periods expired on 13 February 2015, 27 January 2018 and 11 June 2021. The Statement of Claim was not filed until 8 February 2022. There is no dispute that, by then, all the plaintiff's causes of action arising from the last three operations had ceased to be maintainable by virtue of s 50C(1).
Section 50F provides for a suspension of the s 50C limitation periods but, as explained above, the plaintiff now concedes that she has not proved that she was under a disability for sufficient time. That concession applies not just to the first three operations but also to the last three operations. Orders 3 and 4 in the Further Amended Notice of Motion were not ultimately pressed.
[15]
Extension of the limitation periods
It follows that the only issue to be decided for this part of the case is whether the plaintiff is entitled to an order to extent the s 50C limitation periods.
As set out above, s 60G in Subdivision 3 of Division 3 of Part 3 provides for the extension of limitation periods. The text of s 60G is set out in [67] above. Section 60G(1) restricts the application of s 60G to causes of action that accrued on or after 1 September 1990 but does not otherwise impose a temporal restriction. There does not appear to be any other provision in the Act which imposes a temporal restriction on the application of s 60G (or Subdivision 3 of Division 3 of Part 3). In particular, there does not appear to be any provision which excludes from the operation of s 60G personal injury causes of action which arise from an act or omission which occurred on or after 6 December 2002.
This is a curiosity. A reading of the Act as a whole suggests that the absence of such a restriction is an error in drafting rather than a deliberate expression of the will of the legislature. The clear intent of the Civil Liability Amendment (Personal Responsibility) Act 2002 was to introduce a new limitation regime for causes of action for personal injury, which regime was to apply prospectively (ie from 6 December 2002) whilst preserving the previous regime for causes of action arising from acts or omissions which had already occurred. Each regime has its own limitation period (s 18A vs s 50C) and its own provision for suspension of the limitation period whilst the plaintiff is under a disability (s 52 vs s 50F). Those features of the regimes are mutually exclusive. It would be inconsistent with the bifurcated scheme of the Act to have a mechanism for the extension of the limitation period (ie Subdivision 3 of Division 3 of Part 3) which is capable of applying to both regimes.
Consistent with the bifurcated scheme, s 60G is situated in Subdivision 3 of Division 3 of Part 3. Division 3 has the heading "Personal injury cases arising before 2002 amendments", which suggests that Subdivision 3 is not intended to apply to causes of action arising from acts or omissions which occurred on or after 6 December 2002. The heading to Division 3 is part of the Act: s 35(1)(a) of the Interpretation Act 1987 (NSW). This may suggest a limitation is implied for Subdivision 3, notwithstanding that it is express for Subdivision 1 (s 57B) and Subdivision 2 (s 60B).
[16]
Just and reasonable - section 62A(2)
In view of that conclusion, it is not necessary to decide whether an extension of the 12 year long-stop limitation periods to 8 February 2019 would be just and reasonable. However, I have also considered that question and I have found that the plaintiff has not demonstrated that the necessary extensions are just and reasonable.
On this issue, the plaintiff does not rely on any submission for her application under s 62A(2) other than those she relied on for her application under s 60G(2).
The determination of this issue for the last three operation differs from the equivalent issue for the first three operations in two respects. First, the extensions sought for the limitation periods, especially for the sixth operation which occurred on 11 June 2009, are not as long as those sought for the first three operations. That, however, is not a material difference for a number of reasons:
1. As set out above, the justness and reasonableness is not to be considered having regard to the marginal delay which would be occasioned if the extension were to be granted;
2. If the necessary extensions are granted, the delay between the fourth operation and the commencement of the proceedings will be over 19 years. For the sixth operation it will be almost 13 years. These are very lengthy delays. For the reasons given above, it is doubtful that a fair trial is still possible;
3. The prejudice to the defendant in having to investigate the first three operations is also relevant to the plaintiff's case based on the last three operations. An analysis of the last three operations and the legal consequences which flow form them will be difficult to separate from the first three operations, especially as to causation and quantum of loss; and
4. There is no material difference between any of the six operations in terms of the presumptive prejudice to which the defendant will be exposed, and which the limitation periods are intended to avoid.
The second difference is that the determination whether an extension of the limitation periods under s 61A(2) is just and reasonable must have regard to the six matters specified in s 62B(1). In the circumstances of this case, regard to the six matters does not warrant a different conclusion compared to the conclusion about "just and reasonable" under s 60G(2). The matters specified in ss 62B(1)(b)-(e) have all been addressed above for s 60G(2). As for s 62B(1)(a), the length of and reasons for the delay are different for the last three operations, but for the reasons given in the preceding paragraph, the difference is not material. The same applies to the time when the causes of action were discoverable (relative to when the causes of action expired): s 62B(1)(f).
[17]
Conclusion and orders
The plaintiff's Further Amended Notice of Motion is to be dismissed with costs.
It may be that an order ought also be made that the proceedings be dismissed. That is a matter about which the parties ought confer. Therefore I direct the parties to submit to my chambers within 14 days agreed short minutes of order to give effect to these reasons or, if not agreed, competing short minutes together with written submissions limited to two pages as to why orders in accordance with that party's short minutes are to be made.
********
[18]
Amendments
30 September 2024 - Correction of case title.
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Decision last updated: 30 September 2024
One day In 2001 the plaintiff was working at the hospital wearing a backpack vacuum cleaner. She bent over and when she stood up she experienced a sensation as if she had hit something. She began to experience pain in her lower back which radiated down her right leg. Her GP initially prescribed pain medication and diazepam for back spasms. She tried to return to work on light duties. She hoped that the pain would get better but as time passed it did not improve.
Eventually the plaintiff's GP referred her to the defendant whose orthopaedic surgery practice was then located in Albury. The plaintiff was told that the defendant had an excellent reputation as a doctor. This reassured her. The plaintiff's objective in seeing the defendant was to address the pain and put herself in a position where she could return to work. A strong theme in the plaintiff's evidence is a desire to get back to work not just for financial reasons.
The plaintiff first consulted the defendant on 26 February 2002. The consultation occurred in the defendant's rooms in Albury. The plaintiff's husband drove her to the appointment and attended the consultation. After arranging for some scans, the defendant advised the plaintiff to have an operation. The plaintiff says that the defendant told her that after the operation she would have no more pain. He did not warn her of the possibility that the operation might not work. The plaintiff perceived the defendant to be very confident about fixing her back problem. She says that she trusted him completely.
On 2 May 2002 the defendant performed the first operation on the plaintiff being a L5-S1 decompression laminectomy and right S1 neurolysis. Although the defendant subsequently told the plaintiff that the surgery was a success, the plaintiff still had back pain. In fact, the plaintiff's pain was worse than it had been before the operation. She felt that the surgery had not worked. In cross examination she said that she thought that the operation had been a failure.
The plaintiff was disappointed because the defendant had been so confident about resolving her problem. Her husband, who generally attended all of the consultations, tried to ask the defendant questions about the operation but the defendant was dismissive. The plaintiff perceived the defendant to be "defensive".
In August 2002 the defendant advised the plaintiff to have a second operation. The plaintiff again thought that the operation would fix her back pain. The defendant did not warn her of the possibility that the operation might not work. On 3 October 2002 the defendant performed the second operation, being a L4/5, L5/S1 disc clearance and L4/5 and L5-S1 Charité disc replacement. Following the operation, the plaintiff considered that her condition was even worse.
On 1 November 2002 the defendant advised the plaintiff to have another operation. The plaintiff started to feel depressed but she felt that this was her only option. The defendant performed the third operation on 8 November 2002, being L4/5, L5/S1 left side laminectomies and neurolysis. As a result of the third operation, it was obvious to the plaintiff that she had developed foot drop. The plaintiff found this development particularly upsetting. The foot drop significantly affected her mobility and other aspects of her life. She wore a shoe splint. She used crutches. She continued to be in pain. In her witness statement she said:
"The pain I had at this time was the worst pain I had ever been in. I had not been in this sort of pain before and was not in this sort of pain before Dr Hillier started performing surgeries on me."
The plaintiff had a series of x-rays. In January 2003 the plaintiff had a further consultation with the defendant at which time he recommended a fourth operation. The plaintiff told the defendant that she did not want to have another operation because her condition kept getting worse. The defendant said a further operation was necessary. The plaintiff felt reassured. On 13 February 2003 the defendant performed the fourth operation, being an anterior L4/5 fusion. Following the operation the plaintiff continued to suffer severe pain and her foot drop had not improved. The plaintiff says that the defendant nonetheless told her "you are still progressing very well".
In May 2003 the defendant informed the plaintiff that she would be unfit to return to work, which the plaintiff found absolutely devastating. She was 42 at the time.
At some point a workers compensation claim was lodged in relation to which the plaintiff consulted a firm of solicitors in Wagga Wagga called Walsh & Blair. This was the plaintiff's first dealing with a solicitor. The workers compensation claim went on for a number of years when it was settled by a lump sum payment to the plaintiff. She acted on her solicitor's advice to accept the settlement. In her first statement she said:
"The worker's compensation claim went on for a number of years but then when I couldn't return to work Tim Abbott [from Walsh & Blair] negotiated a lump sum settlement and after that all of my payments ceased. I wasn't given any other options by Tim at the time other than to negotiate a lump settlement. I followed Tim's advice at the time."
In 2005 the plaintiff consulted Walsh & Blair in relation to a claim on her superannuation in relation to which they acted for her for approximately two years.
All the while the plaintiff was prescribed various medications and underwent other treatments and tests for her back pain. In late 2005, the defendant advised the plaintiff to have a fifth operation. Initially she told the defendant that she did not want another operation. However, she felt that surgery was her only option. On 27 January 2006 the defendant performed the fifth operation, being a L4/5 and L5/S1 posterolateral stabilisation and L4/5 and L5/S1 DIAM segmental fixation. The plaintiff says that the defendant told her that she "had a good result" but now that she was in a back brace and she felt her other medical conditions were worse, including the foot drop. In the post operation consultations the plaintiff perceived the defendant to be "very defensive".
The plaintiff saw the defendant monthly over the next two and a half years.
On 11 June 2009 the defendant performed the sixth operation on the plaintiff being a L4-S1 decompression and L4-S1 posterolateral fusion. The sixth operation did not assist.
In early 2014, the plaintiff's husband informed her that he did not support her going back to see the defendant anymore and that he would not go to any further consultations. There was evidently some friction between Dr Hillier and Garry. In cross examination the plaintiff agreed that her husband was concerned that the defendant was "performing poor surgeries that delivered poor outcomes", and he was concerned for her.
The plaintiff subsequently had a number of consultations with the defendant which she attended without her husband.
In about May 2014 the defendant advised the plaintiff to have a seventh operation. The plaintiff did not ultimately accept this advice. Her evidence is that "[a]t that time and after six surgeries I just didn't want to have any more surgery or hospital stays".
On 12 May 2014, the plaintiff saw her GP who made the following record of the consultation:
"[S]he came to me because Dr Hillier had asked her to have an MRI and consider laminectomy. she was really concerned about the operation and asked a few questions. I answered the questions as much as I could and encouraged her to discuss her concerns with Dr [H]iller too[.]"
On 13 May 2014 the plaintiff saw the defendant for the last time.
On 20 May 2014 the plaintiff saw her GP again, who made the following record:
"very long conversation about her back problems and her concerns
she doesn't want [to] have another operation
we discussed referral to [p]ain management specialist
we're trying short acting Tramal"
On 23 May 2014 the plaintiff saw her GP again, who made the following record:
"she has decided to see a different specialist
she has stopped long acting Tramal but replaced it with short acting. I provided a script but advised her once again that she needed to go to a pain management specialist
Reason for visit:
Back pain
Actions:
Letter to D Michael Ow-Yang printed."
In consultation with her GP, on 23 May 2014 the plaintiff was referred to Dr Michael Ow-Yang who was another orthopaedic surgeon in Canberra. The plaintiff saw Dr Ow-Yang on 4 June 2013. The circumstances of the referral and the subsequent consultation received particular focus at the hearing, so it is appropriate to set out the relevant evidence.
In her written statement dated 14 March 2024, the plaintiff gave the following evidence:
"102. I eventually stopped seeing Dr Hillier because Garry and Dr Hillier were not getting along and not because I thought Dr Hillier had done anything wrong. Garry and I looked for another surgeon and my GP referred me to Dr Ow-Yang.
103. When I first saw Dr Ow-Yang I heard him say words to the effect:
'There is no further surgery that I can offer you to fix your back pain other than possibly a neurostimulator.'"
The plaintiff gave further evidence about this topic in her second witness statement dated 11 April 2024:
"27. On or about 20 May 2024 I returned to my GP and they recommended seeing a pain specialist because I told them using words to the effect: 'I do not want another operation or hospital stay'. As at 20 May 2014 I was hesitant to see a pain specialist because I thought at the time that this would require a two week hospital stay in somewhere similar to a psychiatric unit and I didn't want that, so I was referred by my GP to another surgeon, Dr Ow-Yang. I believe I first saw Dr Ow-Yang in about mid-2014.
Dr Ow-Yang
28. I refer to paragraph [103] of my statement. In addition to what I have set out at paragraph [103] of my statement, when I first saw Dr Ow-Yang he also said to me using words to the effect: 'you shouldn't have had more than two surgeries.'
29. When Dr Ow-Yang said that to me I did not consider that Dr Hillier had done anything wrong. It did not cross my mind at that time or afterwards and until I contacted Commins Hendriks as I set out in my statement that I should seek legal advice about Dr Hillier. At the time of the first appointment with Dr Ow-Yang I thought Dr Ow-Yang had a different opinion to Dr Hillier. I thought at that time that Dr Hillier had done his best. As I set out in my statement, every time I saw Dr Hillier he seemed to me to be confident. Furthermore, I had been told by my GP as I set out at paragraph 45 of my statement that Dr Hillier had an excellent reputation."
The plaintiff was cross examined about the circumstances in which she was referred to Dr Ow-Yang and gave the following evidence:
"Q. I think factually you saw Dr Hillier a couple of times after that, but around that time, when Garry and you had that discussion, you and he, together, looked for another surgeon that you could - again, to see if you could just fix this problem that hadn't been able to be fixed over all those years, despite your best wishes?
A. Yeah. I'm sorry about that, but Dr Hillier, when I went back to him, wanted to do a further surgery, and I didn't have that done. He wanted to straighten my leg.
Q. And at that point, you'd accepted that - correct me if this is wrong - at that point, you weren't prepared - I'll go back a step. I presume that further surgery that he recommended to you, he also seemed confident about what it could achieve; do you recall that?
A. Yes, he did, but I was just so worried, I didn't know what to do. And then my doctor had said Dr Ow-Yang was a very good doctor, and we went to him to see his - get his advice.
Q. Because you had clearly decided, after talking - and correct me if this is not the case - after talking with your husband, and then your GP, and after having Dr Hillier say to you, "Well, let's try a seventh surgery to see if we can fix it," that was a bridge too far for you? You wanted to try something else?
A. I wanted to seek another person's opinion, because I felt I had to.
Q. And you had to because you understood that, over all that time, as we've already gone over, each of the surgeries, despite what you'd been told, had made you worse?
A. But like I said, what was I to do? He was supposed to be one of the best surgeons.
Q. Well, at least -
A. I'm sorry.
Q. -by 2014, you decided what you were to do. What you were to do was to see a different surgeon, see what the case was?
A. Because my GP had said to me that this other doctor was supposed to be very good, too. He was younger and knew what he was doing.
Q. Exactly so, consistent with what you always wanted to achieve, which is getting better, getting rid of the pain and getting back to work, but your GP was saying to you, was he, that there was a better surgeon you could see, since the treatment from Dr Hillier just wasn't working, each time.
ROBERTS: Well, I object to that, your Honour. If that's a summary of her evidence, it's incorrect.
HIS HONOUR: No, Mr Roberts, it's being put to the witness.
KALFAS
Q. Is that fair?
A. My GP had said to me, "I think you should see another doctor. He's supposed to be very good." Because I was - still had a lot of pain, and my leg was still so weak.
Q. I think you said, before, your GP said he's a younger doctor?
A. Yes, he did say that to me.
Q. He suggest[ed] that he might be able to do things better than Dr Hillier had? If you don't recall, please -
A. No, I don't recall. Yeah."
This topic was also referred to in the report dated 11 January 2023 by Dr Rosalie Wilcox, psychiatrist. On instruction from the defendant's solicitors, Dr Wilcox interviewed the plaintiff on 2 December 2022. Dr Wilcox's report contains a record of the plaintiff's history which includes the following:
"She decided to seek a second opinion and was referred to Dr Ow-Yang in Canberra. He informed her that in his opinion, Dr Hillier should never have operated on more than two occasions. She was shocked by this information. Dr Ow-Yang advised against further surgery and increased the gabapentin. He recommended a nerve stimulator to assist with her low back pain and after a successful trial she had a permanent spinal nerve stimulator inserted around 2014 and she had just recently had the original stimulator replaced."
The plaintiff gave supplementary oral evidence in chief in order to contradict another passage in Dr Wilcox's report (see [46]-[47] below) but she was not asked about this passage.
The other psychiatrist who gave evidence, Dr Clayton Smith, was instructed by the plaintiff's solicitors. He prepared a report dated 4 April 2024, which included the following:
"She sought a second opinion from Dr Ow-Yang, who told her that she should only have had one or two operations. She recalled Dr Ow-Yang telling her, "I don't know how you're still walking." Dr Ow-Yang said he would not attempt surgery, considering the state of her back after the previous surgeries. He arranged for a spinal stimulator to be inserted to dampen the pain."
As set out above, the plaintiff last saw the defendant on 13 May 2014. She has been in the care of Dr Ow-Yang ever since.
In September 2014 the plaintiff consulted another firm of solicitors in Wagga Wagga, Slater & Gordon. She had a telephone consultation and went to a meeting at the solicitors' office. The matter about which the plaintiff consulted Slater & Gordon is described in her statement as "my workers compensation claim where [Walsh & Blair] had represented me… at that time I was struggling to pay for my medication and I wanted to see if I could receive anything further".
In its contemporaneous records, Slater & Gordon recorded the plaintiff's matter as "a possible Pro-Neg claim against Walsh & Blair". With the plaintiff's authorisation, Slater & Gordon obtained the file maintained by Walsh & Blair when it acted for the plaintiff on her workers compensation claim. Slater & Gordon's file notes of the plaintiff's instructions and the solicitors' subsequent advice narrates the history of the injury in 2001, the six operations performed by the defendant (who is referred to by name), lodgement of the workers compensation claim and key decisions made by the plaintiff about her claim including the lump sum settlement in 2008. Amongst a number of problems confronting the plaintiff, the solicitors advised her that the professional negligence claim was three years out of time. That advice was evidently directed to a claim against Walsh & Blair. There is no evidence of Slater & Gordon adverting to a claim against the defendant.
Ever since the first operations in 2002 the plaintiff has experienced back pain and leg pain. More recently she has experienced foot drop and other adverse conditions. At times the pain has been very severe. The plaintiff has most recently been advised that the defendant cut her vena cava vein which she did not know at the time of the operations.
The plaintiff's medical condition has severely impacted her life. She has not been able to work since 2001 (when she was 40 years old). She has been increasingly dependent on her husband. She has felt very depressed and has had trouble sleeping. She finds the foot drop embarrassing because of the way it makes her walk. Since 2014 she has had the neurostimulator which is intrusive. She has lived with an extensive medication programme. Her mental health has been affected. Her interpersonal relationships have been compromised, including with her family. All these difficulties have been endured by the plaintiff against a backdrop of incessant pain.
The plaintiff says that prior to September 2019 "it never crossed my mind" that she needed to get legal advice about the operations which the defendant had performed. Although she occasionally saw solicitors about other matters, including the workers compensation claim for the injury which subsequently led to the operations performed by the defendant, she never asked her solicitors about the defendant's responsibility.
In September 2019 the following advertisement was posted on Facebook:
"Commins Hendriks Solicitors wishes to interview any person who has had an adverse outcome from back surgery carried out in Albury/Wodonga between 2000 and 2019."
The plaintiff says that she saw the advertisement and, as a result, she contacted Commins Hendriks. The solicitors made some enquiries and evidently gave some advice. On 13 July 2021 the plaintiff read a report by a general surgeon, Dr Hopcraft, which Commins Hendriks had obtained as part of its enquiries. It addressed potential shortcomings in Dr Hillier's care of the plaintiff. As stated above, on 8 February 2022 the plaintiff commenced these proceedings against the defendant in which she is represented by Commins Hendriks.
Another matter which Dr Wilcox records in her report dated 11 January 2023 is the following:
"Ms Doughty told me that she decided to take legal action after she heard stories in the local area about Dr Hillier. She felt conflicted about being involved and said she initially investigated it over six years ago. She wanted the doctor to be accountable and to be able to afford to make some alterations to her house."
The plaintiff was asked some questions about this in her examination in chief. She denied that she told Dr Wilcox that she decided to take legal action against the defendant after she had heard stories in the local area. Asked if she told Dr Wilcox that she felt "conflicted" about being involved in an action against Dr Hillier, the plaintiff said that she told Dr Wilcox that she felt worried. She denied that she told Dr Wilcox that she had initially investigated suing the defendant over six years ago.
The evidence before the Court includes the handwritten notes which Dr Wilcox made at the time she interviewed the plaintiff on 2 December 2022. Even with Dr Wilcox's assistance the notes are difficult to read. I think Dr Wilcox would readily accept that they do not conform to common syntax conventions. Dr Wilcox said that the purpose of her notes was to enable her to prepare her report "straightaway" after the interview. Relevantly,
page 15 of the notes includes the following text:
"Legal action. Hears stories in local area.
Felt conflicted about being involved.
Felt uncomfortable taking legal action.
Whether he didn't do wrong by me.
6 years or more considered legal action.
…pool of people - class action.
him to be accountable.
fix things around the house."
As the term "class action" would be understood by a lawyer, there is no evidence of any class action against the defendant, now or previously. Neither Dr Wilcox nor the plaintiff was asked about her respective understanding of the term "class action". As set out above, there is evidence of Commins Hendricks advertising on Facebook for "any person" who had relevant surgery between 2000 and 2019, which advertising occurred in 2019. Given the time frame, the advertisement had a broad target audience.
It follows that under s 18A(2) the limitation period for all the plaintiff's causes of action expired three years after each respective operation, namely on 1 May 2005, 2 October 2005 and 7 November 2005.
Unless the limitation periods were suspended or are now extended, all the plaintiff's claims which are alleged to have arisen from the first three operations are not maintainable.
First, it is common ground that at all material times the plaintiff knew that she had suffered personal injury and that she was aware of the nature and extent of the personal injury. In order to satisfy the extension precondition specified in s 60I(1)(a), the plaintiff must prove that she was unaware of the connection between the personal injury and the defendant's act or omission when the limitation periods expired in 2005. The plaintiff accepts that she bears the onus of proving that she was unaware at that time.
Secondly, the plaintiff also accepts that she bears the onus of proof on the satisfaction of the second precondition in s 60I(1)(b). Specifically, she must prove that:
1. she continued to be unaware of the connection between her personal injury and the defendant's acts or omissions up until 23 October 2020 (three years before the application for an extension should be taken to have been made (see below)); and
2. at no time prior to 23 October 2020 ought she to have become aware.
For this issue, the parties' respective submissions focus on the events in 2014 when the plaintiff's husband withdrew his support for her continued consultations with the defendant, the plaintiff declined the defendant's advice to have a seventh operation, the plaintiff received advice from Dr Ow-Yang and the plaintiff consulted Slater & Gordon about the matters described above. Despite those events, the plaintiff submits that the s 60I(1)(b) precondition is satisfied: she neither was aware, nor ought to have been aware, of the connection between her personal injury and the defendant's act or omission.
To the contrary, the defendant submits that by the end of 2014 at the latest:
1. the plaintiff was actually aware of the connection between her personal injury and the defendant's act or omissions; and
2. as a fall back, the plaintiff ought to have become aware of that connection.
The third issue is that the plaintiff contends that the Court ought decide that it is just and reasonable to extend the limitation periods under s 60G(2) and the defendant contends otherwise.
In Drayton Coal Pty Ltd v Drain (unreported, NSWCA, 22 August 1995) Gleeson CJ (with whom Priestley and Meagher JJA agreed) said that s 60I(1)(a)(iii) may raise questions of degree to be considered in the context of the particulars of negligence relied upon by the plaintiff:
"4 The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff's particulars of negligence. (In this connection I refer, not to the product of some word processor, which, as some of the particulars in the present case illustrate, might include allegations that are either inapplicable or of marginal relevance, but to the material particulars as they emerge from a consideration of the statement of claim and the evidence in support of the application for an extension of time).
5 If a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system then s 60I(1)(a)(iii) will be satisfied."
Thus, it is necessary to identify the act or omission of Dr Hillier which the plaintiff contends gives rise to her entitlement to compensation.
Paragraph 123 of the plaintiff's Statement of Claim sets out the alleged particulars of negligence. There are 44 particulars. Redolent of Gleeson CJ's word processor, most of the plaintiff's particulars are alleged at a level of generality which does not disclose the legal substance of the plaintiff's case. For current purposes, the complaint covers all aspects of the pre-operation advice given by the defendant, the decision to undertake each of the operations and unspecified failures to perform each operation with reasonable care.
The plaintiff's evidence on the current application does not shed much more light. She states that there were certain matters which she was not warned about (including the risk that the operation might fail), that the defendant did not suggest any alternative treatment options (if so, what?) and the defendant did not suggest that she should get a second opinion. She also describes the outcome of each operation contrasted with what she had expected. Other than by generalities, she does not address what an orthopaedic surgeon acting with reasonable skill and care would have done instead. It may be inferred that the plaintiff says that the surgeon would not have cut her vena cava vein. Beyond that, the detail of the plaintiff's case is not currently revealed by the Court documents.
In closing submissions, the plaintiff sought to illustrate her case by reference to a report dated 7 March 2022 by Dr Giblin prepared on instructions from the plaintiff's solicitors. Amongst other things, Dr Giblin expressed the opinion that the plaintiff was not a suitable candidate for the first operation because the diagnosis of sciatica was not supported by the MRI scan of her lumbar spine on 2 March 2002. It is Dr Giblin's opinion that the "appropriate clinical management" of the plaintiff's condition would have been non-surgical. The plaintiff submits that, just like the worker in Drayton Coal Pty Ltd v Drain who did not know a safer work alternative was available, until 2021 she did not know that non-surgical alternatives ought to have been recommended in 2002.
This material shows that the plaintiff relies on more than the mere fact that the operations were performed in order to establish the defendant's liability. Therefore, even though the plaintiff knew that the defendant had performed the operations and that her personal injury was connected with the operations, she still satisfies the precondition in s 60I(a). I accept the plaintiff's submission that until she read Dr Hopcroft's report on 13 July 2021 she was unaware of the connection between her personal injury and the acts or omissions of the defendant which are now alleged to have been breaches of his duty of care. The plaintiff denies any such awareness. Her denial is supported by the objective fact that the plaintiff did not take action against the defendant prior to her engagement with Commins Hendriks. Having regard to the evidence as a whole (see below), I am persuaded that if, at an earlier time, the plaintiff considered that the defendant may somehow have been at fault in undertaking the operations, she would have taken steps to investigate her options at that earlier time. There is no evidence of any earlier investigation.
Another issue which was debated at trial ought to be mentioned here. There is evidence that the plaintiff told Dr Wilcox in January 2023 that she considered legal proceedings against the defendant "over six years" before (see [46]-[49] above). The plaintiff denied that she said this to Dr Wilcox although Dr Wilcox's contemporaneous notes and the report she generated "straightaway" from the notes suggest otherwise. This evidence does not cause me to depart from my finding that the plaintiff did not have actual knowledge until 13 July 2021. Whilst I accept that Dr Wilcox's notes accurately record what she understood the plaintiff to say, and reliably so, it remains unclear what the plaintiff meant to refer to when she said it. The plaintiff referred to a "pool of people" or a "class action" against the defendant. The best candidate for that pool or class (indeed the only candidate) is a group of new clients which Commins Hendriks presumably hoped to animate by the Facebook advertisement. The plaintiff saw it in September 2019 and dealt with Commins Hendriks after that. If Commins Hendriks' activity is what the plaintiff had in mind when she spoke to Dr Wilcox in January 2023, the plaintiff made a mistake about the six year timeframe. There is no evidence that the plaintiff could have had anything else in mind. A mistake about the six year time frame is the least implausible explanation and I so find.
It follows that the plaintiff has proved the matters specified in all three paragraphs of s 60I(1)(a). The first pre-condition to the grant of an extension is satisfied.
Although Telstra Corporation Ltd v Rea [2002] NSWCA 49 was primarily concerned with imputing to a plaintiff the knowledge of his or her agent (ie, the solicitor) the Court's emphasis on the subjective position of the plaintiff is relevant to whether a particular plaintiff ought to have become aware of a relevant matter.
Commonwealth v Smith [2005] NSWCA 478 was a case where Mr Smith's personal injury included psychiatric harm which rendered him reluctant to talk about his feelings and behaviours, including to medical advisers. Another aspect of Mr Smith's situation was that the defendant's act or omission occurred when Mr Smith was in the navy and he had been instructed by his superiors not to think about the accident and to get on with his life. The majority of the Court viewed the instruction as a constraint on Mr Smith's "capacity" to have recourse to means of knowledge about his condition. The Court addressed whether those particular subjective matters were relevant to what Mr Smith ought to have become aware of. The following passage is lengthy but it must be read as a whole. At [104]-[110], Santow JA (with whom Handley JA agreed at [8]) said (with original emphasis):
"104 The tort of negligence recognises that in claims for nervous shock "[t]here are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable for strangers to have in contemplation the possibility of harm to them" (per Gleeson CJ in Tame v New South Wales (2002) 211 CLR 317 at 333). But we are here dealing with a limitation statute, not recovery for nervous shock. The section focuses in a case such as this on the capacity of someone suffering mental injury to become aware that his symptoms, even distressing ones, represent a psychiatric condition; that is to say, using the language of the statutory definition of "personal injury", to become aware that they represent "impairment of [his] … mental condition".
105 Mr Smith's difficulties in accepting advice to seek psychiatric help were explained by Dr Glaser who found that Mr Smith exhibited "a marked reluctance to discuss his feelings and behaviours" [Vol 1, page 304] and that he
"has been reluctant to acknowledge the existence of his various psychological symptoms and, as he himself states, he prefers to try and suppress them and ignore them. This is part of an overall pattern of avoidance behaviour that appears to have characterized his psychological functioning since the 1964 collision. As a result, he would have great difficulty in understanding the emotional consequences of the collision and relating them to the collision itself… Thus it is most unlikely that he would have achieved an adequate understanding of his difficulties for him to be able to take legal action, until quite recently." [Vol 1, page 305]
106 The Commonwealth relied on Commonwealth v Nelson [2001] NSWCA 443. Mr Nelson received psychological counselling and consulted a psychiatrist a few years after a submarine malfunction. He continued to have counselling for about 10 years. The Court of Appeal found that even if Mr Nelson was not subjectively aware of his injury before the expiration of the limitation period under s60I(1)(a) (although the court found that he was), nonetheless he ought to have been aware of the extent of his injuries under s60I(1)(b). This was "by taking the simple step of enquiring of those treating him what his problems were" (Nelson at [89]; see also at [80]).
107 The Commonwealth submitted that Mr Smith had the opportunity to become aware of his injury and "ought to have become aware" that he had suffered an injury. The Commonwealth submitted that his failure to seek the assistance of a psychiatrist was not, in the words of Deane J in Do Carmo v Ford Excavations (1984) 154 CLR 234, "without fault on his part".
108 However, in that passage Deane J was referring to the legislative policy underlying the then s57 and s58 of the Limitation Act. Section 57 (now s57B) referred in subs (1)(c), to the knowledge of "a reasonable man, knowing those facts and having taken the appropriate advice on those facts". It did so in relation to what are termed "material facts of a decisive character relating to the cause of action". Deane J's statement can have no bearing upon s60I which does not refer to objective reasonableness nor to the taking of appropriate advice.
"109 The basal question in relation to Mr Smith was therefore what someone so circumstanced as he was, ought to have been aware of in relation to each of the three matters in s60I(1)(a). This must take into account his mental impairment, the instructions he received from his superiors and any other circumstances bearing upon his capacity to appreciate that he needed to consult a psychiatrist to find out if he was suffering from "any impairment of [his] mental condition" and if so, its nature and extent.
110 In the United Kingdom, under differing legislation, the limitation periods are extendable by reference to a test which, while likewise not wholly objective, is less accommodating to plaintiffs than that applied in New South Wales. According to Adams v Bracknell Forest Borough Council [2005] 1 AC 76, a personal characteristic such as shyness inhibiting a person seeking knowledge about his injury would not preclude constructive knowledge of what that advice would have revealed, had it been sought. By contrast, Telstra Corporation v Rea (supra) held that in New South Wales, personal characteristics of such a kind are relevant. The plaintiff, to avoid constructive knowledge, must have taken all such action as it was reasonable for him to take, taking into account not only any mental impairment but also his personal characteristics and circumstances."
The conclusion reached by Santow JA was that, having regard to the personal circumstances of Mr Smith, including his reluctance to talk about his feelings and experiences, and the instruction from his superiors not to do so, it could not be said that Mr Smith "ought to have become aware" of his personal injury earlier than he did in fact become aware.
Basten JA took a different view at [185]-[187]:
"185 In Adams v Bracknell Forest Borough Council [2005] 1 AC 76, discussed above by Santow JA at [110], the House of Lords was, as his Honour noted, dealing with differently worded legislation. The claim in question sought damages from a school authority for failure to deal with a pattern of specific learning disabilities, including dyslexia. That failure was said to have given rise to his literacy problems as an adult and to psychological or psychiatric syndromes, including panic attacks, social phobia and symptoms of depression. At [71] Lord Scott of Foscote stated:
"The reference in s 14(3) to 'knowledge which he might reasonably have been expected to acquire' should, in my opinion, be taken to be a reference to knowledge which a person in the situation of the claimant, ie an adult who knows he is illiterate, could reasonably be expected to acquire. Personal characteristics such as shyness and embarrassment, which may have inhibited the claimant from seeking advice about his illiteracy problems but which would not be expected to have inhibited others with a like disability, should be left out of the equation. It is the norms of behaviour of persons in the situation of the claimant that should be the test."
Lord Scott continued at [72]:
"My own, non-expert, inclination would be to think that a person of average intelligence (Mr Adams was rated as above average intelligence) who knew himself to be illiterate, knew that his illiteracy was at the back of problems such as stress, depression, etc and who consulted a doctor about those problems, could reasonably be expected to inform the doctor about the illiteracy. Expert evidence to the contrary could lead to a different conclusion but in the present case there has been no evidence to the contrary."
In my view little turns on the semantic variations between the language of s 14(3) of the Limitation Act 1980 (UK), relied on by Lord Scott, and the language of s 60I(1)(b) referring to matters of which an applicant "ought to have become aware"."
186 In Adams, Baroness Hale of Richmond cited a conclusion reached by the Law Commission (UK) in its consultation paper "Limitations of Action" (LCCP 151, 1998) at par 12.54:
"As it is fairer to plaintiffs and would not create significant extra uncertainty, we also consider that the test for constructive knowledge should contain a large subjective element: what ought the plaintiff, in his circumstances and with his abilities, to have known had he acted reasonably? The question should not be what a reasonable person would have discovered, but what the plaintiff himself would have discovered if he had acted reasonably. The personal characteristics of the plaintiff, such as his or her level of education and intelligence, and the plaintiff's resources, would therefore be relevant to the question whether the plaintiff acted reasonably … A number of the employment-related personal injuries cases have involved plaintiffs in unskilled manual jobs having little education. … Conversely, in cases where the plaintiff has some degree of expert knowledge which should have caused him to appreciate facts at an earlier stage than would have been appropriate for the average person, that knowledge should be taken into account to advance the date of discoverability."
After considering differences of approach taken by English courts in relation to the subjective circumstances of applicants, Baroness Hale concluded at [88]:
"I wonder, therefore, how much difference there is in practice between the two approaches. We are not here concerned with knowledge that the claimant might reasonably have been expected to acquire from facts observable or ascertainable by him. We are concerned with knowledge he might reasonably be expected to acquire with the help of medical or other advice which it is reasonable for him to seek. The question is when is it reasonable to expect a potential claimant to seek such advice? Objectively it will be reasonable to seek such advice when he has good reason to do so. This will depend upon the situation in which the claimant finds himself, which includes the consequences of the accident, illness or other injury which he has suffered. Rarely, if ever, will it depend upon his personal characteristics. If, faced with a situation in which it is reasonable to seek advice, a person fails to do so, then the fact that he was reluctant to make a fuss, or embarrassed to talk to his doctor, while understandable, does not take him outside the subsection."
187 In my view this approach sits comfortably with the language of s 60I(1)(b). The circumstances and characteristics of an applicant may well explain why he or she did not ask a question or seek advice at a particular time. The term "ought" requires more than explanation - it requires justification. That additional element requires a standard, not a mere description of the characteristics and circumstances of the individual which led to the failure to inquire."
An application for special leave to appeal to the High Court was rejected because it enjoyed insufficient prospects of success: Commonwealth v Smith [2006] HCATrans 242 (Callinan & Heydon JJ).
In Commonwealth v Shaw (2006) 66 NSWLR 325 at 333-334; [2005] NSWCA 209 at [30]-[31] Basten JA and Handley JA, who took different views in Commonwealth v Smith, agreed on the following (together with Ipp JA):
"30 Paragraph (b) requires the Court to be satisfied that the application to extend time was brought within three years of the date when the plaintiff became aware "or ought to have become aware" of the relevant matters specified in paragraph (a). Thus, even if the date of actual awareness falls within the three year period, the Court is required to consider whether the plaintiff ought to have become aware of the last of the relevant matters at a date prior to the commencement of that period.
31 It is well established that this limb involves a separate and distinct test, not limited to actual awareness, but taking into account other matters, thought appropriate in the circumstances, including the particular circumstances affecting the plaintiff. In Telstra Corporation Ltd v Rea [2002] NSWCA 49 at [36], Foster AJ (with whom Mason P and Einstein J agreed in relation to this issue) adopted a concept of "constructive knowledge", as explained by Lord Reid in Central Asbestos Co Ltd v Dodd [1973] AC 518 at 530:
"In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out."
This approach was quoted with approval by Santow JA (Handley JA agreeing) in Commonwealth of Australia v Smith [2005] NSWCA 478 at [103]; cf [182]-[187]."
The outcome of Commonwealth v Shaw was that the Court concluded that Mr Shaw ought to have become aware of his physical injury before he did and he did not satisfy the s 60I(1)(b) precondition. This was so even though there was a reluctance on the part of Mr Shaw to talk about the accident. At [73] the Court observed that s 60I(1)(b) requires an evaluative judgment of a somewhat imprecise kind. Every case depends on its own facts.
In another case, also called Smith v Commonwealth [2006] NSWSC 796, the Court considered s 60I(1)(b) having regard to the personal circumstances of the plaintiff, including the fact that he was not talkative and volunteered very little information, which inhibited his ability to get advice from his doctor.
In Kaye v Hoffman [2008] 17 Tas R 176; TASSC 2, the plaintiff had a disposition to accept professional advice at face value. That personal characteristic was taken into account, although it did not preclude a finding that the plaintiff "ought to have known" of the shortcomings of a previous medical advisor for the purposes of the Tasmanian limitation statute. The decision was upheld on appeal: Kaye v Hoffman [2009] 19 Tas R 357; TASSC 5.
It follows from these authorities that s 60I(1)(b) is to be applied having regard to the facts of each case. It requires a consideration of what the particular plaintiff ought to have become aware of, having regard to his or her subjective circumstances, such as education, intelligence and resources. Regard is also to be had to any of the plaintiff's personal characteristics in the nature of shyness, embarrassment, a disinclination to make a fuss, a reluctance to talk about feelings or behaviours and indeed a disposition to take professional advice at face value. An evaluative judgment is required.
In the case currently before the Court, the ultimate question is: whether Vicki Doughty, taking into account her personal characteristics and circumstances, ought to have become aware of the connection between her personal injury and the acts or omissions of Dr Hillier on which she now sues?
The plaintiff contends that, despite the operations and the serious medical consequences which she directly attributed to the operations, there was no time earlier than July 2021 when she ought to have been aware of the relevant connection. In support of that submission she relies on the following seven matters:
1. the plaintiff has an engrained world view that it is not appropriate to sue doctors;
2. at all material times, including in 2014, she unquestioningly accepted that the defendant, as her specialist, was doing his best for her and was "beyond reproach";
3. she "worked as a cleaner and was a relatively unsophisticated young woman" from a rural background;
4. the defendant had assured her that the first operation had been successful;
5. she only ever saw solicitors about her workers compensation claim and superannuation issues, none of whom mentioned fault by the defendant;
6. she regularly saw GP's, none of whom suggested any fault by the defendant; and
7. in 2014 the plaintiff perceived Dr Ow-Yang to be expressing an opinion which was different from the Dr Hillier's opinion, but not critical of it.
The factual underpinnings for these submissions are not generally made out on the evidence. As broad statements of the plaintiff's general outlook, I accept the submission about the plaintiff's respectful attitude towards doctors generally and the defendant in particular. However, her general outlook cannot be taken too far and must find relevant application in the context of the events which occurred in this case. Pertinently:
1. The plaintiff's evidence is that after the first operation she suffered from significant pain which increased after each successive operation, and that she was active in trying to address her situation. This indicates that she was highly motivated to act if she thought there was a way to address her situation, including alleviating the financial detriment she suffered as a result of her condition;
2. After two of the operations the plaintiff's own perception of the defendant was that he was "defensive" and "very defensive". At the very least, the plaintiff's perception bespeaks an awareness of the defendant's theoretical responsibility, if not blame;
3. In the plaintiff's evidence about seeing Slater & Gordan in September 2014, she describes her objectives in monetary terms, namely "I was struggling to pay for my medication and I wanted to see if I could receive anything further" which suggests a willingness to make some sort of claim;
4. The plaintiff initially sought to characterise her inquiry of Slater & Gordon as a workers compensation matter but the issue which the plaintiff really wanted legal advice about was the performance of Walsh & Blair. At the time, Slater & Gordon perceived the plaintiff's issue as a professional negligence claim against Walsh & Blair for which purpose the plaintiff signed an authority to transfer the file to Slater & Gordon. This incident suggests a willingness on the part of the plaintiff in 2014 to at least consider suing a professional adviser in order to address her financial concerns;
5. In 2019 the plaintiff responded to the advertisement posted on Facebook by Commins Hendriks. In cross-examination she was asked about her perception that she had had "adverse outcomes" from the defendant's operations. The plaintiff sought to evade the questions, but it was clear that the plaintiff thought the advertisement was relevant to her and it provoked an interest in her to consider a claim against the defendant; and
6. The plaintiff has commenced these proceedings against the defendant doctor.
Having regard to the objective facts, I do not accept that the plaintiff's respectful attitude to the medical profession was such as to override any interest she otherwise perceived in making relevant inquiry or commencing proceedings against the defendant. She may have felt conflicted or worried because the defendant is a doctor, but she would have come to terms with any such conflict or worry in the same way that she has evidently done in bringing the current proceedings.
The submissions about the plaintiff's employment, sophistication, age and rural background may be accepted, except in relation to age. She was 41 when she had the first operation. She was 53 when she saw Dr Ow-Yang in 2014. In addition to maturity, the plaintiff had the active and attentive support of her husband. She evidently made all important decisions in consultation with him. From early on, Garry was not a supporter of Dr Hillier and evidently brought a critical perspective to the couple's decision making. The plaintiff has two children who were supportive adults during the latter part of the chronology. It is also clear that the plaintiff was able to seek advice from professionals and act in accordance with that advice, not just doctors (such as Dr Ow-Yang) but also solicitors (such as Walsh & Blair, Slater & Gordon and Commins Hendriks). Her lack of sophistication was unlikely to have been a barrier to the plaintiff seeking advice about Dr Hillier's performance. It may indeed have had the opposite effect on her willingness to seek advice and act in accordance with it. The plaintiff's rural background was not shown to be a relevant consideration on the evidence.
For current purposes, there is no dispute that in 2022 the defendant assured the plaintiff that the first operation had been a success but that fact does not assist the plaintiff's argument. Despite what the defendant told her, the plaintiff' had her own view which was that the operation had been a "failure". By the time of the proposed seventh operation in 2014, the plaintiff was no longer persuaded by the defendant's continuing expressions of confidence.
The plaintiff's characterisation of the limited circumstances in which she had previously consulted solicitors does not accurately reflect the facts about her consultation with Slater & Gordon in 2014.
The fact that no GP ever suggested to the plaintiff that Dr Hillier was at fault is relevant but not decisive, especially from 2014 onwards when the plaintiff had the benefit of Dr Ow-Yang's specialist advice. The GP's notes of the plaintiff's consultations in May 2014 show that the GP was deferential to specialist advice and communicated that deference to the plaintiff.
The evidence about the circumstances in which the plaintiff came to consult Dr Ow-Yang and what was said by Dr Ow-Yang is set out above. It is not clear on the evidence whether the referral to an alternative orthopaedic surgeon was the idea of the GP or the plaintiff herself (in consultation with Garry). Either way, the referral was in the nature of a second opinion or, in the words of the plaintiff, "another person's opinion".
On the plaintiff's evidence, Dr Ow-Yang told her that she should not have had more than two operations. Dr Wilcox records what is evidently the same conversation using the phrase "Dr Hillier should never have operated on more than two occasions". That phrase places more emphasis on Dr Hillier's role in what should not have occurred. Dr Wilcox records that the plaintiff was shocked by what Dr Ow-Yang said. Dr Smith records that Dr Ow-Yang told the plaintiff that he did not know how she was still walking. An element of sensation is apparent in the narrative.
The plaintiff's evidence is that when she received Dr Ow-Yang's advice she thought that Dr Ow-Yang and Dr Hillier merely had different opinions. She did not consider that Dr Hillier had done anything wrong and it did not occur to her to seek legal advice about Dr Hillier. This evidence was not squarely challenged in cross examination, and it should be accepted. As set out above, I have found that it was not until July 2021 that the plaintiff actually became aware of the connection between her personal injury and Dr Hillier's acts or omissions.
However, I accept the defendant's submission that despite the plaintiff's actual ignorance, she ought to have been aware of the connection once she received Dr Ow-Yang's advice. On the evidence, objective features of Dr Ow-Yang's advice include:
1. There was an element of criticism of Dr Hillier by Dr Ow-Yang. Criticism is implicit in the words "should not have", not to mention "Dr Hillier should never have". The exact words uttered by Dr Ow-Yang are not known, but the plaintiff's consistent narration of the consultation in her written statement, her interview with Dr Wilcox and her interview with Dr Smith evidences a clear impression that she was told that what Dr Hillier did was something which should not have been done;
2. Dr Ow-Yang's advice alluded to the existence of alternatives to the surgical treatment which the defendant had recommended;
3. The difference between what Dr Ow-Yang would have done (one or two operations) and what Dr Hillier did (six operations, with a recommended seventh) was pronounced. It was not a difference in emphasis or a variation on the same theme. Dr Ow-Yang would have treated the plaintiff in a significantly different way; a way which involved much less surgical intervention;
4. The gravity of the outcome of the operations was emphasised by the statement that Dr Ow-Yang did not know how the plaintiff was still walking;
5. The sensational nature of Dr Ow-Yang's advice is apparent from the fact that the plaintiff was shocked; and
6. The outcome of the consultation was that the plaintiff accepted Dr Ow-Yang's advice over Dr Hillier's advice, and the plaintiff never saw Dr Hillier again.
Whilst it may be accepted that the plaintiff did not personally perceive any criticism of Dr Hillier, nothing in her circumstances or personal characteristics has been shown to make it reasonable for her to be a passive recipient of Dr Ow-Yang's advice without making further inquiry about any possible shortcoming in Dr Hillier's advice and treatment over the preceding twelve years. More specifically, the plaintiff now alleges that Dr Hillier's pre-operation advice was negligent, including the advice to have the operations, the lack of advice about alternatives and the failure to warn that the operations may not succeed. She also alleges that the operations were not performed with reasonable care. Upon receiving Dr Ow-Yang's advice in June 2014, the plaintiff ought reasonably to have made further inquiry about such matters. The inquiry could have been made of Dr Ow-Yang, in whose consultation rooms the plaintiff was sitting when she received the advice, or of the GP who had referred her to Dr Ow-Yang, or ultimately of Slater & Gordon who she consulted about whether she could receive anything further to help her with the cost of the pain medication. The plaintiff was capable of making inquiries of that nature. In this respect, the plaintiff's resources included Garry, who had previously asked questions of Dr Hillier which made him defensive.
Vicki Doughty ought to have become aware of the connection between her personal injury and the acts or omissions of the defendant now relied upon as the basis for the defendant's liability to the plaintiff. By the latest, she ought to have become aware in September 2014 when she consulted Slater & Gordon.
The plaintiff's application to extend the limitation period was not made within three years of that date. The second precondition to an extension as prescribed by s 60I(1)(b) is not satisfied. The Court may not make the order which the plaintiff seeks under s 60G.
This passage also demonstrates that an applicant for an extension must not just address the marginal delay which will occur if the limitation period is extended. He or she must address the whole delay in light of the legislature's judgment that by the expiry of the prescribed limitation period the delay has already tipped the balance so that the public interest lies with the applicant not being permitted to bring his or her case.
The plaintiff submits that there are a number of reasons why it is just and reasonable to extend the limitation periods in her case. First, the plaintiff submits that the delay, albeit lengthy, is adequately explained by the plaintiff's ignorance that her personal injury was connected with the defendant's acts or omissions, which ignorance is explicable because the plaintiff held the medical profession in high regard, including the defendant. The plaintiff is right to accept that the delay is lengthy. The proceedings were commenced almost 20 years after the first three operations. Given the length of the delay, I accept the defendant's submission that the plaintiff has not provided an adequate explanation. Whatever may have been the position earlier, the events of 2014 focussed directly on the defendant's treatment of the plaintiff and alluded to the alternatives which may have been available. It marked the end of the doctor-patient relationship between the defendant and the plaintiff and the commencement of a new relationship with Dr Ow-Yang. Having heard all the evidence, there is a telling gap in the plaintiff's narrative between 2014 and 2019 when the plaintiff saw the advertisement on Facebook. All that is said by way of explanation for the gap is that the plaintiff was in thrall of the medical profession generally. Even if that is accepted (as to which, see [102]-[103] above) the explanation for the delay is not adequate.
Secondly, the plaintiff submits that a fair trial is still possible because the delay has not caused the defendant any prejudice other than the presumptive prejudice which arises where factual matters have to be decided by the Court long after the event. Prejudice to the defendant is a material consideration. The effect of the majority judgments in Brisbane South Regional Health Authority v Taylor is that an application for an extension should be refused if the effect of granting the extension would result in significant prejudice to the defendant: Holt v Wynter (2000) 49 NSWLR 128 at 147; [2000] NSWCA 143 at [119] (Sheller JA, with whom Meagher and Handley JJA and Brownie AJA agreed). It is for the defendant to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned if the limitation period is extended. It is then for the plaintiff to show that those facts do not amount to material prejudice: Brisbane South Regional Health Authority v Taylor at 547 (Toohey & Gummow JJ).
The defendant accepts that he cannot point to any particular prejudice but submits that the presumptive prejudice is significant prejudice given the length of the delay. The defendant further submits that his ability to point to actual prejudice is itself compromised because, after all this time, it is impossible for the defendant to know what he does not know (see Brisbane South Regional Health Authority v Taylor at 551 (McHugh J)). Had the case been brought shortly after of the operations, in the ordinary course the defendant would have been able to discover everything relevant to his defence.
I consider that the presumptive prejudice is particularly material in this case. At trial the Court will have to make a finding about what hypothetically an orthopaedic surgeon acting with reasonable care would have advised the plaintiff based on her condition. The Court will also have to make a finding about what, hypothetically, the plaintiff would have done had she been given that advice. The question will have to be addressed for each of the operations. One of the repeated refrains in the plaintiff's cross examination was her rhetorical question: "[W]hat was I to do?". The plaintiff was in a difficult situation at the time each operation was recommended. The key questions will have to be decided having regard to the objective facts which pertained at the relevant time. The plaintiff will not be permitted merely to assert that she would not have had each operation. A challenging task at the best of times, it will be very difficult for the Court to undertake these findings of fact with any real confidence so long after the event.
The plaintiff submits that she will bear the onus of proof on the hypothetical questions and, hence, if she cannot prove to the Court's satisfaction the object facts which pertained at each occasion and by reference to which the findings will be made, her case will fail. That may be accepted, but the effluxion of time may nonetheless expose the defendant to material prejudice in the determination of these key issues: Brisbane South Regional Health Authority v Taylor at 548 and 550 (Toohey & Gummow JJ).
The plaintiff has not demonstrated that the prejudice to which the defendant will be exposed if the limitation period is extended will not be significant. It is to be doubted that a fair trial remains possible, even if it is accepted that the requirement for a fair trial does not require a trial which is perfect or ideal (Holt v Wynter at 142, [79] (Priestley JA)). In the face of the significant prejudice, the application for extension ought to be refused.
Thirdly, the plaintiff also points to the severity of the injuries she has suffered and the consequences for her life, which consequences include chronic pain and an inability to work. There is no doubt that this is an important circumstance, but it is only one element, and it cannot prevail where there will be significant prejudice to the defendant. By enacting the limitation statute the legislature has decided that there will be cases where injured people will remain uncompensated.
It should also be noted that the plaintiff does not contend that the defendant's conduct contributed to the delay in her bringing the proceedings. The plaintiff points out that the defendant told her that the first operation had been a success, but rightly does not seek to take that submission too far when the plaintiff's evidence is that she herself thought that it had been a "failure".
Having regard to these matters, the plaintiff has not demonstrated that it would be just and reasonable to extend the limitation periods for the causes of action alleged to have arisen from the first three operations. The application for extension under s 60G(2) is to be rejected in any event.
Separate to s 60G, the Act includes another mechanism for the extension of a limitation period which applies exclusively to causes of action arising from acts of omissions which occurred on or after 6 December 2002. That mechanism is in s 62A and Division 4 of Part 3. Some of the provisions in s 62A and Division 4 of Part 3 may be inconsistent with the provisions in Subdivision 3 of Division 3 of Part 3. For example, an extension under s 62A is subject to preconditions which are different to the precondition to an extension under s 60G.
Nonetheless, on a literal reading of the Act, and assuming there is no implied restriction by virtue of the heading to Division 3, a plaintiff may apply for an extension of a s 50C limitation period under either s 60G or s 62A or both. There is no apparent reason why that choice might have been thought to be necessary or appropriate.
It should also be noted that there appears to be elsewhere in the Act an unnecessary duplication. The duplication appears in the words of s 60A and s 60B in Subdivision 2 of Division 3 of Part 3. That Subdivision provides for a "secondary limitation period" which may arise in circumstances which are not relevant to the current case. In its terms, the "secondary limitation period" applies only to causes of action arising from acts or omissions which occurred before 6 December 2002: s 60B. It expressly supplements the extension mechanism in Subdivision 3 of Division 3 of Part 3. Unlike the rest of the Act (and NSW statutes generally), s 60B is not broken down into enumerated subsections even though it contains two paragraphs which address discrete restrictions. The second paragraph of s 60B provides: "[t]his Subdivision does not apply to a cause of action to which Division 6 of Part 2 applies". Leaving aside the lack of subsection numbers, a sentence to provide for such a restricted application of Subdivision 2 makes sense; it is consistent with the heading to Division 3 and accords with the bifurcated scheme of the Act.
However s 60B follows s 60A. Section 60A also contains two unenumerated paragraphs, the second of which is identical to the second paragraph in s 60B. There is no reason why it might have been thought necessary for Subdivision 2 to contain this duplication.
A possible answer to the foregoing is that the second paragraph in s 60A is in the wrong place. Rather than duplicating what is already provided in s 60B, the second paragraph of s 60A should be in Subdivision 3 of Division 3 of Part 3. The natural place for it is in a subsection which immediately follows s 60G(1), or as a free-standing section between s 60F and s 60G. Were it to be relocated:
1. the inexplicable overlapping between Subdivision 3 of Division 3 of Part 3 and Division 4 of Part 3 would be eliminated;
2. the unnecessary duplication between s 60A and s 60B would be eliminated;
3. Subdivision 3 of Division 3 would become consistent with the heading of Division 3; and
4. the provisions for the extension of the limitation periods would be brought into conformity with the bifurcated scheme of the Act as it otherwise applies to causes of action for personal injury.
The principles and authorities which apply to the construction of a statute which might suffer from a drafting error were set out by Simpson AJA (with whom Bell CJ and Beech-Jones JA agreed) in NSW v Kaiser (2022) 108 NSWLR 476 at 497-501; [2022] NSWCA 86 at [109]-[126]. Simpson AJA referred to a number of cases which concerned obviously erroneous cross references and then quoted the following passage from Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531 at 548; [2014] HCA 9 at [38]-[39] (French CJ, Crennan and Bell JJ):
"[38] The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
…
[39] However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that "the modified construction is reasonably open having regard to the statutory scheme" because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd , the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, "[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances."
It is clear from these principles that a wholesale "relocation" of the second paragraph in s 60A to, say, s 60G is beyond the permissible limits of statutory construction. It would not be an exercise in reading additional words into a statute or omitting words already there. It would require both an extra sentence to be read into s 60G and an entire sentence (albeit the same sentence) to be omitted form s 60A. It would not be addressing a "simple, grammatical, drafting error". It would be filling a gap in Subdivision 3 of Division 3 of Part 3. It would be "too big". The modified construction which resulted from the exercise would not be consistent with the language used in the Act.
A more tenable possibility is to construe the opening words of the second paragraph in s 60A so that "This Subdivision" means "The next Subdivision", but even then the construction would be at risk of being characterised as "tortured and unrealistic".
The issue is not one which will pass away as causes of action which arise form acts or omissions which occurred before 6 December 2002 fade into history. For as long as s 60G remains in the Act, it may provide a right to apply for an extension of a limitation period in addition to the right provided for in s 62A. There may be cases where a s 60G application is more favourable to that intended under s 62A.
Ultimately this issue does not need to be decided in the case currently before the Court because the plaintiff does not seek an extension under s 60G for the causes of action alleged to have arisen from the last three operations. Her application is brought under s 62A alone (Order 2 of the Further Amended Notice of Motion).
In that context, ss 62A and 62B relevantly provide:
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.
…
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.
The plaintiff seeks an order that the 12 year long-stop limitation periods be extended to 8 February 2022. Such an order may not be made under s 62A(2) if 8 February 2022 is beyond the period of three years after the date on which the causes of action were discoverable by the plaintiff. Discoverability must therefore be considered as at 8 February 2019.
Discoverability of a cause of action is addressed in s 50D which provides:
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.
Discoverability depends on what the plaintiff knew, or alternatively, what the plaintiff ought to have known. As for the plaintiff's knowledge, at no time prior to 8 February 2019 did the plaintiff know all of the three facts listed in s 50D(1). As at 8 February 2019 the plaintiff did not know, at least, that her injury was caused by the fault of the defendant as required by s 50D(1)(b). That conclusion follows from the finding I have made that it was not until 13 July 2021 that the plaintiff became aware of the connection between her personal injury and the defendant's acts or omissions for the purposes of s 60I(1)(a)(iii). The matter specified in s 60I(1)(a)(iii) is not exactly the same as the facts specified in the s 50D(1)(b), but ignorance of the former must necessarily include ignorance of the latter. Section 60I(1)(a)(iii) refers to the "connection" between a plaintiff's personal injury and the "act or omission" of the defendant, which in each case is broader than "caused" and "fault". In Baker-Morrison v NSW at 464, [39] (Basten JA, with whom Ipp & MacFarlan JJA agreed) observed that s 60I(1)(a)(iii) is broader than s 50D(1)(b) in these two respects.
As for what the plaintiff ought to have known about the last three operations, unlike s 60I(1)(b), the phrase "ought to know" is defined in s 50D(2). It requires consideration of what steps the plaintiff actually took, what steps would have been reasonable, and whether the relevant knowledge would have been ascertained had the plaintiff taken all reasonable steps (assuming she had not). In the current case s 50D(2) requires consideration of whether the fact that the plaintiff's personal injury was caused by the defendant's fault would have been ascertained by her had she taken all reasonable steps to ascertain that fact before 8 February 2019. She would have to ascertain the key factors necessary to give rise to the defendant's liability, or that her claim was legally actionable: NSW v Gillett at [94] and [97].
I have set out above the events in 2014 which led me to conclude that the plaintiff has not satisfied the precondition in s 60I(i)(b). Those same events lead me to find that by the end of 2014 at the latest, the plaintiff ought to have known that her personal injury was caused by the defendant's fault. This is so even though s 50D(1) refers to the more precise concepts of "cause" and "fault".
This is not a case like NSW v Gillett where the plaintiff was found to have taken all reasonable steps but nonetheless remained in ignorance because he had received wrong advice from the professional who was consulted about the potential claims. In this case, the plaintiff received Dr Ow-Yang's advice that the defendant had a role in the thing which should not have been done. She knew that the operations caused her personal injury and she knew her injury was severe and had had major implications for her life. She was in need of financial assistance with the cost of medication and was willing and able to consult Slater & Gordon about a professional negligence claim against a former solicitor. However, the plaintiff took no further steps to investigate the responsibility of the defendant for her situation. The further steps which were necessary, starting with professional advice, were readily available to the plaintiff. Yet they were not taken in 2014 or in the following years. As early as the end of 2014, the plaintiff had not taken all reasonable steps to ascertain whether her injury was caused by the fault of the defendant.
Had she taken all reasonable steps, which would have included seeking legal advice, whether from Slater & Gordon or some other solicitor, the plaintiff would have ascertained that her injury was caused by the fault of the defendant, bearing in mind that for the purpose of s 50D(1)(b) she did not need to discover that a claim against the defendant was assured of success. Discovery may be inferred from the fact that upon the plaintiff consulting Commins Hendricks in 2019 she ultimately ascertained the information in the report of Dr Hopcroft. There may have been a delay but, had the plaintiff taken all reasonable steps in 2014 or 2015, she would have ascertained all relevant facts well before 8 February 2019.
It follows that the causes of action alleged by the plaintiff to have arisen from the last three operations were discoverable more than three years before the Statement of Claim was filed. In these circumstances section 62A(2) does not empower the Court to grant the extension sought in Order 2 of the Further Amended Notice of Motion.
It ought further be observed that the six matters specified in s 62B(1) are not exhaustive. Ultimately, the question of whether the extension of the limitation period is just and reasonable under s 62A(2) is to be determined having regard to all the circumstances of the case, just as for s 60G(2).
It follows that, for the reasons set out above in relation to s 60G(2), it would not in any event be just and reasonable under s 62A(2) to extend to 8 February 2019 the limitation periods for the last three operations.