Falcon v McCann [1998] VSC 83

5. In its defence filed on 18 May 1998 Dr McCann puts some of these allegations in issue and, further, alleges that, in any event, the cause of action did not accrue within six years before the commencement of the proceeding and is therefore barred by reason of s. 5(1) of the Limitation of Actions Act 1958 . The plaintiff's application before the court by summons filed on 10 July 1988 is directed to this defence. Mr Falcon seeks in the alternative a declaration that his cause of action is not statute barred by reason of s. 5(1A), or an order pursuant to s. 23A extending the period within which this proceeding might be commenced. Given that the declaratory relief sought involves the determination of an issue in the proceeding it may be that the appropriate course is to seek an order pursuant to Rule 47.04 that that issue be determined before all other issues in the proceeding as was done in Hickey v Women's & Children's Health Care Network (unreported, Hedigan J, 11 June 1998). Since the question of extension of the statutory period arises only where the limitation period has already expired I turn first to the declaratory relief.

The Section 5(1A) Point

9. The relevant limitation period for claims of this type is normally six years: s. 5(1). Accordingly, a cause of action which accrued before 26 March 1992 would be barred. Section 5(1A), however, provides for a longer period in certain circumstances which counsel for Mr Falcon contended were here present. The statutory provision is in these terms:

"(1A) An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows - (a) that he has suffered those personal injuries; and (b) that those personal injuries were caused by the act or omission of some person."

13. It was submitted on behalf of Dr McCann that the disease or disorder which Mr Falcon suffered was glaucoma and that his patient was aware that he had this condition in December 1990 when it was diagnosed by Dr Alpin. Glaucoma causes damage to the fibre optic nerve and is a personal injury for the purposes of the section. Accordingly, it was argued, time begins to run from December 1990 and it therefore expired in December 1996, some 15 months before the writ was filed.

16. The answer of counsel for Mr Falcon depended upon the evidence which was before me both as to the nature of his medical condition and as to his perception of the symptoms, and it is this that I now turn.

19. Julian Lockhard Rait is an ophthalmologist with a specialist interest in glaucoma. He saw Mr Falcon as a patient in April 1993 and has treated him from that date. Dr Rait said that "glaucoma is a group of disorders characterised by a progressive loss of nerve function at the back of the eye, usually associated with an elevation of intra ocular pressure". Its cause is uncertain and, in this case, its existence was in no way attributed to any act or omission of Dr McCann or of any one else. Dr Rait said that the pressure within the eye causes damage to the fibres of the optic nerve and this, in turn, causes damage to the retinal ganglial cell at the back of the eye. It is possible by the use of sensitive instruments to detect abnormalities in the function of the eye in the earliest stages of glaucoma but, for the patient, there is no loss of perceptible vision; the damage is occurring nonetheless. The condition at this stage, Dr Rait referred to as preperimetric glaucoma. He thought that, in the case of Mr Falcon, this stage might have commenced about five or maybe 10 years before he saw Dr Alpin in December 1990. During this stage the condition can be treated by medication to relieve the pressure. If this is done the progress of the nerve damage can be arrested and the patient would suffer no functional loss of sight. If, however, the condition remained untreated, the damage to the nerve cells would continue and the disease would progressively interfere with vision, beginning after about 40% of the optic nerve fibres had been lost, and this would continue until the patient suffered inevitable total blindness. Where the condition is treated during this stage the glaucoma and the deterioration in vision can be arrested but the retina will not return to its pre-damaged state. It remains constant. But in a minority of cases the relief of the glaucoma at this stage does not have this effect of arresting the deterioration to the nerve or the retina. Dr Rait said that this is explained by recent research which shows that the first damaged cells release a substance, glutamate, which itself goes on to damage neighbouring cells. In these cases, the deterioration within the eye continues notwithstanding the removal of the original cause, namely, the intra ocular pressure. Mr Falcon has the misfortune to be one of these cases.

22. Dr Rait said that this glutamate induced deterioration is a consequence of the original pressure induced condition, but that once under way it was really "a second disease, a second process that has occurred". It is a process which continues independently of the first process. But until the first process is treated and stopped, the second process exists and operates contemporaneously with it. When Mr Falcon presented to Dr Rait in April 1993 both processes were operating to the detriment of his eyes. Dr Rait was able to control the pressure in the left eye by May 1993 but that it was not until November 1994 that the pressure in the right eye was finally brought under control. I accept this evidence. I find that Mr Falcon suffered from glaucoma from the early 1980s and that a consequence of this condition was that it rendered him liable to contract another physical process or disease which is itself untreatable and which will cause blindness in due course. I find that in 1992 Mr Falcon knew that he suffered from the first but not from the second condition.

25. I turn now briefly to the evidence of Mr Falcon himself. He told me that he saw Dr McCann from time to time from 1979 to December 1990 for spectacles. During this period Dr McCann tested him for glaucoma but found nothing. Mr Falcon was then an active man and played basketball. In December 1990 he was referred by Dr McCann to Dr Alpin with a view to possible laser surgery. It was Dr Alpin who diagnosed him as suffering from a well-established glaucoma. He said that he was then aware of no deterioration in his vision. Dr Alpin told him that his condition could be controlled with medication and drops and that it was not a major problem. Mr Falcon later continued to see Dr Alpin for various procedures and was told that his glaucoma was worse. Accordingly, he was referred to Dr Rait in April 1993. He said that he was still unaware of any deterioration in his vision. He was, as before, working, driving, reading and playing basketball. He was told by Dr Rait, following tests, that his vision had deteriorated and he said that he became aware of it himself later in 1993. His glaucoma was treated by Dr Rait in 1993 and 1994 during which period his sight, particularly in the right eye, worsened until in February 1995 it qualified him for a blind pension. It was not, however, until September 1996 that he was told by Dr Rait that he would lose his vision altogether. It was shortly after this, around April 1997, that he first turned his mind to the possibility of suing Dr McCann when he was told this by a Royal Victorian Institute for the Blind counsellor and he sought legal advice. The writ was filed in March 1998. Mr Falcon's evidence was in some respects challenged in cross-examination but I accept him as a truthful witness.

28. There is no doubt that Mr Falcon has contracted a disease or disorder and that this represents personal injuries within the meaning of s 5(1A). The question is whether this disease or disorder is the condition of glaucoma which he contracted some time in the 1980's or a consequence of this condition; or whether it is the secondary condition whereby the glutamates attack the optic nerve cells irrespective of the presence of intra optic pressure. It was not disputed that Mr Falcon first knew that he suffered from glaucoma earlier than a date six years before the proceeding commenced and that he first knew that he suffered from the glutamate affected condition after that same date. Section 5(1A)(a), therefore, in this case requires an answer to this question. What are the personal injuries the subject matter of the claim for damages of which the plaintiff must know?

31. In paragraphs 5 and 6 of the statement of claim the injury is referred to as "irreversible optic nerve damage as a result of glaucoma". This is particularised in similar terms:

"Irreversible optic nerve damage leading to blindness. Psychological suffering, anxiety, depression and nervous shock."

35. Counsel for Mr Falcon said that I should find from this that the disease or disorder for the purposes of s. 5(1A) was the second process whereby the glutamate attacked the nerve cells and that the evidence showed that his client first knew that he had suffered from injuries from this condition sometime after April 1993, so that the statute permitted the commencement of the proceeding by April 1999.

38. It is necessary at this stage to underline what this case is not about. The injury of which Mr Falcon complains was not the result of a traumatic incident; cases such as Perry v Royal Women's Hospital (unreported, Beach J, 14 May 1991) at p. 17 and those which have considered the application of s. 5(1A) to claims for such injuries are not relevant. It is not a case where the plaintiff, before 1992, suffered from a disease which had no symptoms and which was undetectable by medical science, as in Cartledge v E. Jopling & Sons Pty Ltd [1963] AC 758. It is not even a case where the plaintiff, before 1992, was aware of symptoms but did not know their cause, extent or significance, so that the question whether this would satisfy the requirements of paragraph (a) does not arise. Mr Falcon, before 1962, knew that he suffered from glaucoma but he was not aware of any disability which it might have caused or to the risks to which it exposed him. It is not a case where the plaintiff's glaucoma was brought about by the act or omission of some person; his complaint is that the negligent diagnosis by Dr McCann deprived him of the opportunity to have the on-going deterioration in his vision arrested at a time when it was functionally insignificant. So understood, the claim may face the difficulty of establishing that the negligence of the defendant "caused" an injury, but I am not concerned with this. It does, however, highlight the difficulty of applying s.5(1A) to such a case. The injury for which Dr McCann may be liable is that consisting of the progress and consequences of the disease from the date upon which it might have been arrested had it been diagnosed in the 1980s. Assuming a speedy arrest might have been possible, the damages awarded will represent compensation for the deterioration in Mr Falcon's vision by the operation of the glaucoma after that date and of the second disease insofar as it commenced after that date.

41. I return to the text of the statute. The first of the matters, knowledge of which under s. 5(1A) causes time to run against the plaintiff, is knowledge "that he has suffered those personal injuries". The word "those" makes it clear that the reference is not to any personal injury but to the personal injury in respect of which damages are claimed in the proceeding in question. Furthermore, they are personal injuries which consist of a disease or disorder. Assuming that the other requirements of the section have been met, time, therefore, would begin to run when the plaintiff knows that he or she suffers from that disease or disorder. While it may not be necessary for the plaintiff to know the scientific name of this disease or perhaps its medical intricacies, he or she must know its nature: Donnelly v State of Victoria (unreported, O'Bryan J, 30 June 1994) at p. 11. Moreover, it is the defendant who bears the ultimate onus of satisfying the court of this fact and that the knowledge was acquired before March 1992: Herschberg v Mula (1993) Aust Torts Reports 62,664 at 62,667, per Southwell, O'Bryan JJ.

44. I am satisfied that the personal injuries referred to in paragraph (a) of s.5(1A) are the disease which Mr Falcon had in 1990 and which, it is said, had not been diagnosed by Dr McCann in the preceding years. It is this disease which exposed Mr Falcon to the risk of a second disease which in fact occurred. In 1990 he knew of the non-diagnosis so that, if this relevantly caused him to suffer glaucoma and its consequence, paragraph (b) also is satisfied. It follows from this that a cause of action arose in 1990 and that this proceeding was commenced outside the relevant limitation period.

The Section 23A Point

48. Section 23A empowers the court to extend the time for the commencement of an action for damages for personal injury where it is satisfied that it just and reasonable to do so. It is clear enough that this proceeding is of the kind to which s. 23A applies: s.23A(1) The power to extend is conferred by sub-ss. (2) and (3). These provisions are in the following terms:

"23A Personal injuries (1) The section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person. (2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to sub-section (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines. (3) In exercising the powers conferred on it by sub-section (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following - (a) the length of and reasons for the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; (c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant; (d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

52. I proceed to consider these matters on the basis that Mr Falcon's claim is for injuries which arose from undiagnosed glaucoma which he had suffered from the 1980s and that he was aware that he had this disease in December 1990. The following facts, which I have found, are relevant. Mr Falcon was aware in December 1990 or early 1991 that Dr McCann was at fault in failing to diagnose his glaucoma previously. He was not aware of any deterioration in his sight until 1993. He did not know that he would lose his vision until September 1996. This was the first time he realised that he would become completely blind. It was not until April 1997 when he spoke with a counsellor that he considered the possibility of suing Dr McCann. He was first given legal advice in December 1997. I make these last two findings notwithstanding the cross-examination which was directed to his evidence on these matters. He was, as I have said, a reliable witness. No particular prejudice to Dr McCann was alleged to have arisen as a result of the delay in commencing the proceeding. His counsel did, of course, refer to the general prejudice to client by reason of the effluxion of time from the date of accrual of the cause of action some time before 1990 and the likely date of the trial.

55. I have had regard to the circumstances enumerated in s. 23A(3). The length of the delay is some 10 years and the reasons were the ignorance on the part of Mr Falcon of his right to sue. It is likely, too, that his lack of interest in this was due to the fact that he accepted his condition until it became really serious and that he was reluctant to embark upon unnecessary litigation. No specific prejudice to the defendant was asserted. The general prejudice is a matter of speculation and will depend upon the issues raised by the defendant in the proceeding. No submission was put as to this. Paragraph (c) has no application. No submission was addressed by either party as to the meaning or effect of paragraph (d). As to paragraph (e) the plaintiff commenced the proceeding within 12 months after the possibility of this was revealed to him by the counsellor. No criticism was or could be directed to him for having failed to obtain expert advice of the kind contemplated by paragraph (f).

58. The failure by the plaintiff to commence this proceeding within six years from December 1990 was due, essentially, to a want of understanding of the consequence present and potential of the medical condition from which he knew he then suffered and to an ignorance of his legal rights. In the circumstances and having regard not only to the interests of the plaintiff but also to those of the defendant, I am satisfied that it is just and reasonable to extend the time for commencement of this proceeding and I shall do so.

1. The questions raised by paragraph 8 of the defence be tried before a judge alone before all other questions in this proceeding.

2. Declare that the proceeding is barred by s. 5 of the Limitation of Actions Act 1958 .

3. The period within which an action on the cause of action alleged in the statement of claim may be brought be extended to 30 March 1998.

4. The costs of the plaintiff of this application including any reserved costs and the costs of transcript be the plaintiff's costs in the proceeding.