Just and reasonable
10 I turn now to consider whether it is just and reasonable to extend the limitation period. The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Taylor. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in Giudice and Commonwealth of Australia v McLean (1997) 14 NSWLR at 389.
11 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish her cause of action. (See Szerdahelyi v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Ortado v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Lewis v Bailey (unreported NSWSC, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported, NSWCA, 24 April 1998) and Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995).
12 The first defendant submitted that there was no cause of action in relation to his advice concerning the vasectomy and the cause of action in relation to the contraceptive pill. The plaintiffs did not make any submissions on these issues. In the amended statement of claim, the first plaintiff pleaded that she was prescribed the contraceptive pill Microgynen 30. She gave evidence that she had been prescribed Microgynen 50. Microgynen 50 is an adequate dose of oestrogen according to Dr Bennett. The plaintiffs' claim in relation to the prescribing of the contraceptive pill cannot be sustained and should be struck out.
13 The evidence given by the plaintiffs concerning the vasectomy is that they attended the first defendant's surgery between two to six months after the birth of their second child Ryan and were advised about the vasectomy procedure. The first defendant advised them that it was to close to Ryan's birth for them to consider the second plaintiff undergoing a vasectomy and if something happened to either of their children they may wish to have further children. The first defendant told the plaintiffs to go away and think about it for a while. The first plaintiff gave evidence that they accepted this advice. The second plaintiff's evidence was that at this point he had not decided to have the vasectomy. It is my view there is no cause of action established in relation to advice given about the vasectomy and this part of the pleading should be struck out.
14 Paragraphs 24 to 30 plead negligence and breach of contract against the first defendant in that firstly he failed to advise the plaintiffs or either of them that they should consult an obstetrician regarding, at least, the significantly increased risk of a neural tube defect, and appropriate counselling and testing; secondly, he refused to refer the first plaintiff to a specialist obstetrician despite the plaintiffs request for such a referral; thirdly, he failed to advise the plaintiffs or either of them that the first plaintiff consult an experienced obstetric ultrasonologist to certain whether the foetus had a neural tube defect; fourthly, that in breach of the contract and in breach of the duty of care the first defendant failed to perform or refer the first plaintiff for an amniocentesis to ascertain whether the foetus had a neural tube defect; fifthly, he failed to advise the plaintiffs or either of them that there was an increased risk or a significant possibility of congenital abnormalities particularly a neural tube defect such as spina bifida, and that many but not all of these abnormalities can be diagnosed antenatally and termination of the pregnancy before 20 weeks is both feasible and safe if the plaintiffs desired it; sixthly, he failed to counsel the plaintiffs or refer the plaintiffs for counselling regarding termination of the pregnancy; and seventhly, he wrongly and negligently advised the plaintiffs that the first plaintiff's pregnancy appeared to be perfectly normal.
15 Paragraph 33 of the amended statement of claim alleges against the second to eighth defendants that in breach of the duty of care and in breach of contract, the second to eighth defendant negligently failed to detect the presence of any birth defect or presence of spina bifida in the unborn foetus; failed to warn the plaintiffs of the possibility of spina bifida in the unborn foetus; failed to ensure that when the ultrasound examinations were performed there was a trained ultrasonologist present to supervise and review the ultrasound examination process; failed to recognise that the head shape visible in the films of the two ultrasound examinations was very suspicious of the shape described as the "lemon sign"; failed to examine closely or at all the posterior fossa of the brain as well as serial transverse sections all the way down the spine; and failed to employ the "Filly technique" in the ultrasounds.
16 It is not disputed there are real causes of action firstly against all of the defendants in relation to the ultrasound interpretation; and secondly, against the first defendant in relation to the blood test. There is evidence that the plaintiffs have suffered damage. The defendants say that the pleading in contract should be struck out against the second plaintiff. The plaintiffs argued that the first plaintiff was agent of the second plaintiff. Both are the parents of Brad and it my view that this issue is arguable.
17 In Taylor McHugh J referred to the effects of delay in the now often quoted passage which states:
"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."
18 and;
"Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.
In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it."
19 and;
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 an extension."
20 Dawson J, in Taylor said at page 2:
"The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant."
21 and;
"The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."
22 In Zegarac the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E. Section 60E (1)(b) specifically refers to "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". By majority (Mason P and Powell JA) held in Zegarac that the trial judge erred by weighing up competing interest of the plaintiff and defendant which meant that the plaintiff was ultimately relieved of the persuasive burden which is placed on the plaintiff.
23 Mason P analysed the views of the Judges of the High Court in Taylor's case. The President quoted the passage by McHugh J which begins "Legislatures enact" and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson J and McHugh JA appeared to indicate that it is mandatory that the applicant negate "significant prejudice" before the discretion could be exercised in his or her favour.
24 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms.
"The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent."
25 Mason P perceived that there may be a distinction between the notion of "significant prejudice" and the notion that delay makes "the chances of a fair trial unlikely" but concluded that the views of the judges in Taylor represented a clear indication that mere proof of actual prejudice will not dictate a rejection of an application to extend time. Mason P then expressed respectful approval and agreement with the following statement of Kirby J in Taylor.
"Although attempts have been made to spell out the criteria to be taken into account in judging whether or not an order extending time should be made, care must be taken in the use of such criteria because of the different expression of the relevant provisions of limitation statutes. Furthermore, the factual circumstances of cases are infinitely various. The discretion conferred by s 31(2) of the [Queensland] Act is controlled only by the terms of the Act and the achievement of its purposes, as elaborated above."
26 In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made "the chances of a fair trial unlikely" or whether the defendant would suffer "significant prejudice".
27 The defendants did not put on any evidence that they suffered actual prejudice. I accept with the passing of 9 years since the events that gave rise to these proceedings occurred means that there is presumptive prejudice. All of the defendants are alive and continue to practise. The first defendant's records of the treatment of the first plaintiff are available. The first defendant referred to the first plaintiff's evidence concerning a referral note which it submitted is not available and will cause significant prejudice. Both referrals for ultrasounds in June 1992 are available and the first plaintiff was mistaken with her recollection which she admitted. Aside from that evidence, her recollection of events appeared to be excellent. It is my view that the delay has not made the chances of a fair trial unlikely nor do the defendants suffered significant prejudice.
28 The plaintiffs acted expeditiously once they sought legal advice. I accept that the plaintiffs after being told that there was no negligence in relation to the ultrasound by Dr Carmody in 1993 accepted his advice and concentrated on caring for Brad. When the solicitor did not get back to the first plaintiff in 1995 the case looked hopeless. The plaintiffs used the only other known avenue to seek legal advice in 1996. It is my view that it is just and reasonable to extend the limitation period.
29 Alternatively the plaintiffs rely on ss 60C and E of the Act in relation to the actions pleaded against the defendants. Section 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides:
"Ordinary action (including surviving action)
60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines."
30 Section 60E provides:
"Matters to be considered by the court
60E(1)In exercising the powers conferred on it by section 60C or 60D, 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;