Knowles v Harper

Supreme Court of NSW|2002-11-07|Before: Gleeson CJ, Ms J

CITATION : Knowles v Harper [2003] NSWSC 27 HEARING DATE(S) : 7 November 2002 JUDGMENT DATE : 10 February 2003 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : The court orders that; (1) Leave is granted to the plaintiff to extend the limitation period pursuant to ss 60G and I for the period from 17 August 1992 to 11 January 1994.; (2) Leave is granted to the plaintiff to extend the limitation period pursuant to ss 60C & E from 11 January 1994 up to and including 11 January 2002; (3) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS : Extension of time to commence proceedings - ss 60C & E Limitation Act - Alleged medical negligence LEGISLATION CITED : Limitation Act 1969 (NSW) - ss 60G & I Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104 Drayton Coal Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995) Commonwealth of Australia v McLean (1997) 14 NSWLR 389 Brenda Knowles (Plaintiff) PARTIES : Warwick Harper (Defendant) FILE NUMBER(S) : SC 20455/2001 Mr S Campbell SC (Plaintiff) COUNSEL : Mr M Fordham (Defendant) Ms J Smith Carrol & O'Dea (Plaintiff) SOLICITORS : Ms E Howlett Tress Cocks & Maddox (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

JUDGMENT (Extension of time to commence proceedings, ss 60C & E and 60G & 60I Limitation Act - alleged medical negligence) 1 MASTER: By notice of motion filed 11 January 2002 the plaintiff seeks an order extending the time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The defendant is a plastic surgeon. The plaintiff alleges that on 17 August 1992 and August 1995 the defendant performed surgery upon her breasts. The plaintiff alleges that the defendant performed both operations in a negligent manner and failed to warn her of the complications of breast surgery and was negligent in managing her post operative treatment. The plaintiff relied on her affidavit sworn 14 April and two affidavits of her solicitor Janine Lynette Smith sworn 25 February 2002 and 5 November 2002. The defendant did not rely upon affidavit evidence. 2 For the purposes of this application I have taken the plaintiff's case at its highest and have accepted her evidence.

(1) The plaintiff was born on 9 April 1962 and is currently 40 years of age.

(2) The plaintiff attended Shepparton South Technical High School in Victoria until approximately 15 years of age. When she left school, she obtained employment as an apprentice hairdresser but after a few months worked in retail fashion.

(3) In late November 1979, the plaintiff changed her employment from her sales position to an usherette. In approximately January 1980, the plaintiff's boss asked her to fill in for one of the dancers who had called in sick. She danced in front of a crowd of approximately 250 men. Apparently, her performance was very well received by the audience. The plaintiff realised that she was a good entertainer and her dancing career was born. She commenced to work full-time as an erotic dancer at "The Club" Cinema. Her popularity grew and she began performing as a guest artist in a number of clubs and restaurants across Melbourne and interstate.

(4) In 1981, the first photograph of the plaintiff was published in an article that appeared in the Melbourne Truth newspaper on 22 October 1988. In 1982, the plaintiff won her first film role, a small part in an R-rated Australian film called Centrespread . During the early 1980's, the plaintiff travelled around Australia. She worked in Queensland, Victoria and South Australia to raise her profile and get her name known in the industry.

(5) Between 1980 and 1990, the plaintiff worked as an erotic dancer at the Sara Sands Hotel in Brunswick, Melbourne. She worked at lunchtime on Wednesday, Thursdays and Fridays and in the evening on Friday and Saturday. During this time the plaintiff worked at two other venues in Melbourne: Crystal T's Club in Coburg and the Ritz Hotel in St Kilda. She danced at the Ritz from approximately 1981 to 1985.

(6) On 11 January 1984, the plaintiff's first daughter, Amber, was born. She stopped dancing when she was 6½ months pregnant and resumed dancing four weeks after the birth of Amber. During her pregnancy the plaintiff had taken very good care of her body and her size 8 figure returned very quickly. However, after breastfeeding her daughter, the plaintiff noticed that her breasts had reduced in size and were not quite as attractive as they had been.

(7) In September 1984, the plaintiff consulted Dr Graham Isaacs, a Melbourne plastic surgeon. In January 1985, Dr Isaacs performed a bilateral breast enlargement and inserted silicone implants via a trans-nipple incision. The plaintiff preferred to have the implants inserted through the nipple so as to reduce the possibility of scarring as she wished to have her breasts looking as attractive as possible. The surgery was successful, and apart from one episode of swelling of the left breast in February 1985, which completely subsided. The plaintiff gave evidence that Dr Isaacs did not discuss with her the different types of implants that could be used nor the risks of infection (t 71.5-10). She did not have to wear a bra after having her breasts augmented by Dr Isaacs, as they were beautifully shaped. After the operation she continued to dance as a freelance performer and started her own show under the stage name of "Niki Lane" .

(8) In January 1986, a coloured photograph of the plaintiff was published in People magazine. Also in 1986 "The Niki Lane Striptease Revue" toured Australia and New Zealand. It was very successful. The plaintiff also performed in several R-rated films in the role of an erotic dancer such as Death of a Soldier, The Great Bookie Robbery, The Big Chill and various commercials. She was also doing photographic modelling and raising her profile with various public relations and promotional exercises. She was awarded titles such as Miss Nude Australia .

(9) On 16 May 1987, the plaintiff's second daughter, Marnie, was born. She stopped dancing when she was 6 months pregnant but was able to resume dancing only a week after Marnie was born.

(10) In 1988, the plaintiff won a number of modelling titles. She posed for magazine and continued her erotic dancing. She toured Tasmania as part of a mixed erotic dance show. This show was very popular and she was interviewed on an evening TV show called "Tasmania Today" .

(11) On 24 September 1988, the plaintiff streaked at the VFL Grand Final at the Melbourne Cricket Ground. On the strength of the publicity she received, she was offered various film roles and magazine shoots. Copies of the colour photographs of the plaintiff at the Grand Final were published in People magazine and an article was published in the Melbourne Truth on 22 October 1988. The plaintiff was also offered a photo shoot in the motorcycle magazine Live to Ride . She remembers signing 500 copies of the poster in Melbourne. After the grand final, the plaintiff was very much in demand and was so busy with shows that she had to arrange for her sister, Karen, who was known by the stage name "Penny Lane" , to dance at some of the shows. On 16 September 1989, the Melbourne Truth published a two page article on the plaintiff.

(12) In 1990, the plaintiff was approached by the owners of the Crystal T's Club in Brunswick, to promote and manage Crystal T's, a licensed club in Frederick Street, Rockdale, New South Wales. The plaintiff moved to Sydney intent upon continuing her career in New South Wales. Within approximately six weeks, the plaintiff had built up the business from a handful of customers to crowds of 400 or so. She danced at Crystal T's in the evenings and worked at a video store during the daytime.

(13) In 1992, the plaintiff decided that she wanted her breast implants redone. She wanted larger breasts so that she could continue dancing (t 9).

(14) On 17 August 1992, Dr Harper performed a revision bilateral augmentation mammoplasty, removing the silicon and inserting saline prostheses. Dr Harper told the plaintiff that this was the first time that he had inserted implants through the nipple. As it was important to the plaintiff that she had a minimum amount of scarring, she wanted to have implants inserted through the nipples if appropriate. At the time, she said that the doctor did not have concerns about doing the operation that way. In cross-examination the plaintiff denied that prior to the operation Dr Harper discussed the manner in which the surgery could be performed. Closer to the operation Dr Harper pulled out a box of different implants and showed her those. Dr Harper examined her breast and took some photographs of them. She denied that Dr Harper warned her that complications could occur. She denied that he showed her photographs of breast operations where problems arose or that he gave her some handouts. The plaintiff agreed that when she first saw Dr Harper she told him that after the 1985 surgery she had contracted an infection which necessitated Dr Isaacs inserting a needle to remove fluid from her breast (t 10).

(15) Between 1992 and 1995, the plaintiff was in continual pain and discomfort. Her breasts were misshapen and asymmetrical. They were quite ugly and rippled badly like an ocean (t 26). Her breasts throbbed and ached. She would often experience hot sweats. She could not wear white or light coloured tops or bras because the discharge of blood and yellowish pus from her nipples would show through her clothing and stain it. The discharge had a pungent and offensive smell. Because of the appearance of her breasts she could only dance topless on rare occasions. She would conceal her breasts by draping a scarf or wearing a shirt and strip from there. She suffered a significant reduction of earnings when she works as a waitress compared to when she worked as a dancer. By the end of 1993, the plaintiff had ceased her erotic dancing.

(16) In 1993, the plaintiff telephoned Dr Isaacs and said that she was worried about the bleeding and the pus and would like to have them taken out. Dr Isaacs replied that she should go along with the opinion of Dr Harper because he knew what he was doing. She replied: "Okay, if I have to have them out then I will ." (t 21.25-35). The plaintiff thinks that she may have spoken to Dr Isaacs once more but cannot be sure.

(17) In 1995, the plaintiff's nipple was oozing blood and pus from three different areas. She was also having night sweats. On 29 August 1995, Dr Harper performed further surgery on the plaintiff. However, about two months prior to the operation the abscess and infection in the right breast subsided. The plaintiff wanted her breasts to have a better shape. At the hospital, Dr Harper told her that the surgery would be performed underneath the breasts so it would not infect the nipple. The defendant performed a bilateral augmentation mammoplasty, removing the saline implants and inserting silicon implants.

(18) One month after the 1995 surgery, the infection returned and was even worse than before. From 1995 to 2000 the plaintiff continued to seek medical treatment for the infection to her breasts.

(19) In May 1996, the plaintiff received treatment for the infection at Manly hospital by Dr Meares. At that time, the plaintiff knew that she had a bad infection and that it was directly related to the 1995 surgery (t 15.1-40). She knew that the infection from 1992 had not stopped as her breast was still bleeding pus and it formed an abscess. She knew that the infection continued through to 2000.

(20) On 21 February 2000, the plaintiff consulted Dr Lilienthal at the Bowral General Medical Practice and gave him a history of her breast problems. The plaintiff formed the view that Dr Lilienthal was far from helpful.

(21) On that same day, namely 21 February 2000, she consulted with Robert Johns, solicitor at Bowral for the first time. In cross- examination, the plaintiff stated that it was her general proposition that she did not believe in suing, nor did she want to hurt Dr Harper, but after 10 years of suffering in silence she believed that Dr Harper had done the wrong thing and had caused the problems she was suffering (t 18). It was for a period of 5 years prior to 2000, ie. in 1995 (t 19.5), that she had known that the doctor had done something wrong and had caused the problems she was suffering. This accords with the statement she made to her solicitor Mr Johns (Ex 2), where the plaintiff said : "I do not believe in suing but after 5 years I feel I have suffered in great silence. I have had Doctor Nigel Menogue looking after the breasts for the last 4 years. I believe I have had damage to me in more ways than physically. I have suffered humiliation and embarrassment. I have lost the beauty I tried to enhance. I feel instead of being sexy or confident I have lost my outgoing personality because although it may look fine in a bra and clothes, I know that underneath my breasts are ugly. I am very insecure and find I am now jealous of other women due to the fact my breasts are out of shape and to this day still fills with blood and pus when it wants to. I have had enough." Mr Johns arranged for her to see a medico-legal specialist, Dr Lawson. After receiving Dr Lawson's report, Mr Johns discussed the matter with the plaintiff and referred her to Carroll & O'Dea solicitors (Ex 1).

(22) On 9 June 2000, the plaintiff first consulted Carroll & O'Dea solicitors. On 5 July 2000, the solicitors wrote to Dr Isaacs, who had performed the plaintiff's original breast augmentation in 1985, requesting a report. On 28 February 2001, Dr Isaacs provided a report. On 30 June 2000, Dr Gertler, a psychiatrist, diagnosed the plaintiff as suffering from an adjustment disorder with markedly depressed mood and this developed on the basis of the complications which arose after breast surgery in 1992. According to Dr Gertler, the plaintiff required anti-depressants and bi-weekly counselling for at least six months.

(23) On 23 August 2000, the plaintiff saw Dr Isaacs in Melbourne. At that consultation Dr Isaacs said to the plaintiff words to the effect of: "If it had been me I would have removed the implants as soon as you returned to see me."

(24) It was only when the plaintiff saw Dr Isaacs in August 2000 that she came to understand that Dr Harper should have removed the implants in 1992. Similarly, she then understood that Dr Harper should have removed the implants after the 1995 surgery given the problems she had encountered.

(25) Dr Isaacs (report dated 28 February 2001) stated that if Dr Harper had been aware of the frequency and recurrence of the episodes of infection it would be regarded as a chronic infection and it would be mandatory to remove the implants. To do anything less would fall short of normal practice (p 4 para 5).

(26) The statement of claim was filed on 28 May 2001.

(27) In January 2002, the plaintiff was told by her general practitioner Dr Lilienthal and by Dr Milroy a medico-legal surgeon, that her implants should be removed so that the source of the infection could be removed and her body allowed to heal. It is the plaintiff's evidence that if it had been suggested to her that she should have had the implants removed she would have agreed to do so.

(28) The notice of motion seeking to extend time was filed on 11 January 2002.

The Law 3 The plaintiff relies on ss 60C and 60E and ss 60G and 60I(1)(a)(i)(iii) of the Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. 4 Sections 60C and 60E are contained in subdivision 2. Subdivision 2 is headed secondary limitation period of the Act. Section 60F is contained within subdivision 3 of the Act. Subdivision 3 also applies to causes of action that accrue on or after 1 September 1990. Section 60F provides for further discretionary extension of limitation periods for causes of action accruing on or after 1 September 1990. 5 In these proceedings, ss 60C and E of the Act apply to the causes of action that arose after 11 January 1994. Sections 60G and 60I apply to the causes of action that arose from the date of the second operation, namely 17 August 1992 up to 11 January 1994. I shall refer to the s 60G and s 60I provisions later in this judgment. 6 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." 7 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;

(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;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) 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;

(h) the extent of the plaintiff's injury or loss." 8 In relation to ss 60C and 60E of the Act, Mason P in Zegarac at 197 referred to propositions which were uncontroversial. They are:

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

(3) In exercising the discretion, the court is required "to have regard to all the circumstances of the case" (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) "to the extent that they are relevant to the circumstances of the case".

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's second reading speech that are set out in the order judgments, and which McHugh J discusses in Taylor at 552-553.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well - known principles. 9 Justice Powell in Zegarac at 240-241 stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA's further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do. Secondly, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made, lies on the applicant. 10 The principles concerning prejudice have been considered in Wynter, by the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 where their Honours stated that the effect of the High Court decision in Taylor's case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122. 11 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 12 The second operation took place in August 1995. The limitation period for that cause of action expired in August 1998. The motion was filed on 11 January 2002, ie 3 years and 7 months out of time. I accept that with the passing of time, there will be presumptive prejudice.

13 The plaintiff's explanation for delay is that it was not until she saw Dr Isaacs in August 2000 that she came to understand that Dr Harper should have removed the implants in 1992. Similarly, she then came to understand that Dr Harper should have removed the implants after the 1995 surgery. The plaintiff agreed in cross-examination that it had been her opinion since 1995 that Dr Harper had done the wrong thing and had caused the problems she was suffering (t 18.55). She did not consult a solicitor during that time because she did not believe in suing as a general proposition and did not want to hurt Dr Harper (t18.45).

14 Although the plaintiff believed following the 1995 operation that Dr Harper had done the wrong thing, it was not until August 2000 that she understood the connection between her injury and the defendant's act or omission. That is, it was not until August 2000 that she was able to identify the precise omission of the defendant, which caused her suffering.

Extent to which delay caused evidence to be lost - s 60E(b) 15 There is no evidence that the plaintiff's failure to commence the proceedings within the limitation period has meant that any evidence has been lost.

The time at which the injury became known to plaintiff - s 60E(c) 16 In 1992, the plaintiff was aware that the surgery had resulted in an infection to the right breast. The plaintiff also knew that between 1992 and 1995 her right breast remained painful and infected, and that her breasts were misshapen and on the surface had a rippled effect.

Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(d), (e) and (h) 17 In 1993, the plaintiff telephoned Dr Isaacs and said that she was worried about the bleeding and the pus caused by her implants and would like to have them taken out. Dr Isaacs replied that she should go along with the opinion of Dr Harper because he knew what he was doing. She replied "Okay, if I have to have them out then I will." (t 21.25-35). In 1995, Dr Harper did not tell her that the implants should be removed but rather he advised her that she could have further implants inserted in her breasts. 18 In May 1996, the plaintiff received treatment for the infection at Manly hospital by Dr Meares. At that time the plaintiff knew that she had a bad infection and it was directly related to the 1995 surgery (t 15.1-40). She knew that the infection from 1992 had not been completely eradicated as her breast was still bleeding pus and it formed an abscess. She knew that the infection, except for a brief period in 1995, was present up to 2000. 19 In cross-examination the plaintiff stated that it was her general proposition that she did not believe in suing, nor did she want to hurt Dr Harper, but after 10 years of suffering in silence she believed that Dr Harper had done the wrong thing and had caused the problems she was suffering (t 18). So it was for a period of 5 years prior to 2000, ie. in 1995 (t 19.5), that she had known that the doctor had done something wrong and had caused the problems she was suffering. 20 On 23 August 2000, the plaintiff saw Dr Isaacs in Melbourne. At that consultation Dr Isaacs said to the plaintiff words to the effect of "If it had been me I would have removed the implants as soon as you returned to see me." According to the plaintiff, it was only when she saw Dr Isaacs in August 2000 that she came to understand that Dr Harper should have removed the implants in 1992. Similarly, she deposes that she came to understand that Dr Harper should have removed the implants after the 1995 surgery given the problems she had encountered then.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f) 21 There is no conduct by the defendant which induced the plaintiff to delay bringing action.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 22 On 21 February 2000, the plaintiff initially consulted a solicitor. On 9 June 2000, she consulted her current solicitor on the recommendation of her initial solicitor. It was her current solicitor who investigated the plaintiff's claim and sought medical opinion from Dr Isaacs on 5 July 2000. On 23 August 2000, Dr Isaacs told the plaintiff that the implants should have been removed, but the written advice from Dr Isaacs was not received until 28 February 2001. The main cause of delay in commencing proceedings after the plaintiff had sought advice from a solicitor was the acquisition of a written medico-legal opinion, which supported her claim. That took from 5 July 2002 until 28 February 2001 some 7 months. The defendant was aware of the existence of these proceedings from 28 March 2001. On 28 May 2001, the statement of claim was filed. This motion was filed on 11 January 2002. 23 I turn now to consider whether it is just and reasonable to extend the limitation period. As previously stated, I accept that due to the effluxion of 10 years there will be presumptive prejudice. Dr Harper has not put on any evidence to show actual prejudice. There are photographs showing the plaintiff's breasts after the 1985 augmentation and post the 1992 and 1995 augmentations. There would be medical records from Manly hospital and the medical practice at Bowral available which detail the plaintiff's problems with her breasts. 24 In Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104 the Court of Appeal considered the approach it should adopt when exercising its discretion under s 151(D)(2) of the Workers Compensation Act in a case where the respondent has not suffered prejudice by the delay and the applicant has not diligently pursued his or her claim. In that case, Ipp AJA rejected the view that the real question to be answered was that posed by Toohey and Gummow JJ in Taylor, namely, whether the delay had made the chance of a fair trial unlikely. Instead, the question that has to be asked is what is fair and just, or what the justice of the case requires.

25 Itex, however, dealt with a section that conferred a very broad discretion to grant leave to sue after the expiration of the limitation period. The discretion granted by ss60C and E is not so broad. The facts in this case also differ from Itex. Unlike Itex, the plaintiff in the case before me here did not make a conscious and informed decision not to sue, but rather made that decision without the understanding that Dr Harper should have removed the implants. She did not seek to take any forensic advantage.

Sections 60G and I extension 26 Section 60F is contained within subdivision 3 of the Act. Section 60F provides a procedure for further discretionary extension of limitation periods for causes of action accruing after 1 September 1990. 27 Schedule 5 by virtue of clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action: "…if an application for such order is made within: (a) the period of three years referred to in s 60I." 28 The application can only succeed if that date is shown to be "within the period of three years referred to in s 60I". 29 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such a period as it determines". 30 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 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 three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 31 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(1) By 29 August 1998 (the expiration of the relevant limitation periods) she was unaware of one or more of the matters identified in s 60I (1)(a)(i), (ii) or (iii);

(2) That she did not become aware of those matters or ought to have become aware in s 60I (1)(a) (or the last of those matters to become known to her) earlier than 11 January 1999. 32 The practical effect is to require the plaintiff to identify specifically what fact or facts she claims not to have known as at 29 August 1998, and that that lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I (1)(a); and to show by evidence the date on which she acquired knowledge thereof (being a date later than 11 January 1999); or to show that that fact was, or those facts were, still unknown to her on that date. Counsel indicated that the plaintiff relied on s 60I(1)(iii)

Whether the plaintiff was unaware of the connection between personal injury and the defendant's act or omission - s 60I (1) (a) (iii) 33 Section 60I (1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. 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 will be found in the plaintiff's particulars of negligence: Drayton Coal Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995). 34 The plaintiff submitted that she was unaware of the connection between the personal injury and the defendant's acts or omissions until 23 August 2000 the plaintiff was unaware of the connection between personal injury and the defendant's act or omissions. The words "become aware" means that the plaintiff must have knowledge and awareness of the fact that such a statement was given. 35 The plaintiff consulted Dr Isaacs in Melbourne on 23 August 2000. Dr Isaacs said to the plaintiff words to the effect "If it had been me I would have removed the implants as soon as you returned to see me." This was the first time that the plaintiff became aware that the proper means of treating her ongoing problems would have been the complete removal of the implants. It was only when the plaintiff saw Dr Isaacs in August 2000 that she came to understand that Dr Harper should have removed the implants in 1992. Similarly she then came to understand that Dr Harper should have removed the implants after the 1995 surgery given the problems she had encountered then. 36 As the plaintiff has passed through the s 60I (1)(a)(iii) gateway, I turn now to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable 37 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) of that Act 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) 41 NSWLR 389. 38 The ultimate test in any such application is whether a fair trial can be conducted not withstanding any delay (see Wynter). As previously stated there is presumptive prejudice but no actual prejudice has been shown. The plaintiff's decision not to seek legal advise earlier with a view to taking legal proceedings was not taken for forensic advantage but rather because she did not believe in suing and did not want to hurt Dr Harper. As previously stated, there would be medical records from Manly hospital and the medical practice at Bowral available detailing the plaintiff's continuing problems with her breasts. 39 This is a borderline case. However I am satisfied that it is just and reasonable to extend the limitation period pursuant to ss 60G and I for the period from 17 August 1992 to 11 January 1994. Pursuant to ss 60C and E, an extension of the limitation period from 11 January 1994 to 11 January 2002 is granted. 40 Costs are discretionary. In Wynter, Sheller JA at paras 147-148 stated that, in relation to costs, ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The defendant's opposition was not wholly unreasonable. The plaintiff should pay the defendant's costs. 41 The court orders that:

(1) Leave is granted to the plaintiff to extend the limitation period pursuant to ss 60G and I for the period from 17 August 1992 to 11 January 1994.

(2) Leave is granted to the plaintiff to extend the limitation period pursuant to ss 60C and E from 11 January 1994 up to and including 11 January 2002.

(3) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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