As to (c), this date can be fixed on the probabilities at 12 April 2001, the date upon which both Mr. and Mrs. Willis received the Health Care Complaints Commission's report. It is to be noted that by that date the three year limitation period had in any event expired.
· (f) Any conduct of the defendant which induced the plaintif 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
21 There is nothing that I can add usefully to what I have earlier written.
· (h) The extent of the plaintiff's injury or loss.
22 Dr. Gertler's conclusions respecting Mrs. Willis are:
"In my opinion, Mrs. Willis suffered nervous shock on 27 August 1997 whilst observing the gradual deterioration and near death of her daughter Grace from undiagnosed meningococcal septicaemia. Her description of her feelings at the time are consistent with an acute dissociative reaction.
Since that time Mrs. Willis has had to try and cope with the reality of a severely disabled child. Although she has been able to manage for the most part with support from others, she nevertheless remains primarily responsible for Grace's day to day activities and well-being.
At times Mrs. Willis finds that she cannot cope on an emotional level and becomes depressed. Counselling has been of assistance to her in the past, and continues to be of benefit as required.
Mrs. Willis does in my opinion suffer from an adjustment disorder with depressed mood. Her level of depression is mild to moderate. She will require ongoing psychological counselling at times of increased stress when she finds herself decompensating emotionally. She is likely to require up to ten sessions a year at a cost of approximately $150 each, for the next 3 - 5 years.
The prognosis for Mrs. Willis' adjustment disorder with depressed mood remains uncertain. Whilst superficially she appears to be coping with her daughter's situation, she does react adversely to certain situations which remind her of Grace's disability and the circumstances which led to it, and I would expect that to continue for the foreseeable future, albeit on a gradually decreasing basis."
23 Dr. Gertler's conclusions respecting Mr. Willis are:
"In my opinion Mr. Willis suffered nervous shock at the time his daughter Grace developed meningococcal septicaemia, which was initially not diagnosed and which subsequently led to her near death and residual major disability. His description of his feelings at the time that her condition was finally diagnosed and resuscitative measures commenced, is consistent with a significantly shocked state.
Although Mr. Willis attempted to cope emotionally after the events of August and September 1997, he appears eventually to have decompensated emotionally. He required several sessions of counselling at the time some two years after Grace's critical illness. At times he still decompensates emotionally and becomes "upset", however is able to deal with the feelings through discussion with his wife.
Mr. Willis does not in my opinion suffer from a clinical psychiatric illness at the present time. There are occasions such as those mentioned above when he does require the opportunity to express his feelings, and it is conceivable that over the next several years he may need to see a psychologist again on occasion. I would expect him to require counselling undertaken by a psychologist 2 - 3 times a year on average for the next five years. The cost of such counselling would be of the order of $150 per session."
24 The particular factors (a) - (h) inclusive above are, by section 60E inclusive, and not exclusive, mandatory considerations. There is, by virtue of section 60E, a mandatory requirement to have regard, otherwise, to "all the circumstances of the case". It will be necessary to consider, presently, some aspects, both of law and of fact, of the factor of potential prejudice to the defendants should the present applications be granted. That topic apart, there is nothing that I can add usefully to what I have previously written, in description of "the circumstances of the case".
25 There remains the basal question, as posed by section 60C: "is it just and reasonable" to grant the applications?
26 The defendants submitted that an extension would not be "just and reasonable". They relied upon the proposition that, notwithstanding the absence of any evidence of actual prejudice, they were to be presumed to have been prejudiced; and that such presumptive prejudice sufficed to make it unjust and unreasonable to grant the present applications.
27 This proposition was said to be supported by the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Particular reliance was placed upon passages in the judgment of McHugh J. Four such passages are immediately relevant.
28 First, and in connection with the legislative rationales that underpin limitation legislation such as the Act, his Honour says:
"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. ………………………….. . 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." [at 552, 553]
29 Secondly, and in connection with the burden, generally, of proof, His Honour says:
"A limitation provision is the general rule; an extension provision is the exception to it. …………………….. 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." [at 553, 554]
30 Thirdly, in connection with actual prejudice, his Honour says:
"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. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. 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. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action." [at 555]
31 Fourthly, in connection with presumed prejudice, his Honour says:
"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. ………………………… So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose." [at 551]
32 The Brisbane South decision was considered by a specially convened Bench of five Judges of the Court of Appeal of this Court in Holt v Wynter (2000) 49 NSWLR 128. Four of those Judges agreed with the following proposition, as articulated by Sheller JA;
"In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority 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." [at 147 (119) ]
33 The foregoing authorities are binding on me; and if the present defendants had demonstrated actual prejudice were the applications to be granted, then I would have felt bound to refuse the applications.
34 The present applications are not, however, as simple as that. For, as I have earlier explained, the defendants did not claim to be able to demonstrate actual prejudice. Their point is, rather, that they are to be presumed to have suffered prejudice; and that it should be found that such presumed prejudice would make the granting of the present applications unjust and unreasonable.
35 The difficulty that I have with that approach is that I cannot see a rational link between the suggested premise and the suggested conclusion.
36 Let it be supposed that I am required to accept the suggested premise. What follows?
37 It cannot be correct to say, simply, that the mere fact of presumed prejudice, wholly unparticularised beyond the bare articulation of the bare presumption, must entail as a matter of course injustice and unreasonableness if a particular application to extend a limitation period be granted. For one thing, McHugh J, for all the forcefulness of his Honour's analysis of presumed prejudice, does not go, as I read his Honour's judgment, so far. For another thing, such a simplistic equating of presumed, but unparticularised, prejudice with injustice and unreasonableness seems to me to entail a process of reasoning that is, in substance, contrary to the relevant provisions of the Act itself.
38 It must be, surely, necessary to ask in a precise way why the premise of presumed prejudice leads in the particular case to the conclusion that it would be unjust and unreasonable to extend the relevant limitation period.
39 That question, if asked seriously, cannot be answered seriously except by reference to the evidence in hand. That makes relevant a principle stated as follows by Dixon CJ in Hampton Court Limited v Crooks (1957) 97 CLR 367 at 371, 372. That particular case did not concern an application to extend a limitation period. The case was concerned, rather, with an action at law claiming damages for personal injury resulting from alleged actionable negligence on the part of the particular defendant. In that context, Dixon CJ said:
"…………….. (T)he case is one where the facts can hardly be within the knowledge of the plaintiff and, at all events so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant: …………………… but a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it , in accordance with the often repeated observation of Lord Mansfield in Blatch v Archer :………………… ." [emphasis added]
40 If one applies that principle to the evidence now before this Court, relating that evidence to each of McHugh J's four "rationales for the enactment of limitation periods", then it seems to me that there is not a scintilla of evidence touching upon any of the first three of the four rationales; and that there is nothing to show injustice or unreasonableness detrimental to the broad public interest, the protection of which is at the heart of the fourth rationale.
41 I acknowledge and accept at once the importance of ensuring that such an approach does not bring about an erroneous reversal of the onus of proof on the ultimate issue. To that end I pose the ultimate issue in the terms used by McHugh J:
"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."
42 As the evidence stands, I am comfortably satisfied that, in each application, it has been affirmatively established by the applicant that "the justice of the case requires" that the extension sought should be granted.
43 Each application seeks orders in these terms:
"1. That the limitation period for the bringing of the cause of action be extended.
2. Any such other or other orders as the Court deems fit.
3. Costs."
44 I do not think that so open-ended an order as is sought in paragraph 1 is appropriate. An extension of time to and including 27 September 2002, i.e. an extension of 2 years and 1 month, is in my opinion appropriate. That date is the anniversary date closest in time to 17 September 2002, the actual filing date of the Statements of Claim. I shall reserve to all parties liberty to apply on 24 hours' notice in writing, either by letter or by facsimile transmission. I note for more abundant caution that the proposed order is intended to give the minimum extension necessary to validate the proceedings that have in fact been commenced.
45 There remains the matter of costs.
46 I take in that connection initial guidance from the approach of Sheller JA in Holt v Wynter. His Honour says at 147(121):
"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. Although ………….. (the relevant primary Judge) ……….. was satisfied that the evidence explained and excused the applicant from any responsibility for the delay, the fact remains that one or more of the solicitors she retained were responsible for the delay. The respondent was not. In the circumstances, particularly having in mind the question raised about the availability of medical records, I do not regard the respondent's decision to resist the application as unreasonable."
47 I have quoted the foregoing passage in full in order to point out some considerations, particular to that individual matter, which led Sheller JA, (three other members of the Bench concurring), to conclude that there should be an order that the successful applicant pay the costs of the application; such order not to be enforced without prior leave of the trial Court, prior to final judgment in the action.
48 Priestley JA, by contrast, concluded that the appropriate costs order was that the costs of the application be costs in the cause. His Honour refers to two other cases in which that course was taken at first instance and not disturbed on appeal.
49 It seems to me that the facts of the present applications are not on all fours with the facts of Holt v Wynter. In those circumstances it seems to me that the justice of the two present cases is better met by an order that in each case the costs of the application be costs in the cause.
50 In each application I make, accordingly, the following orders: