Lopinto v The Central Sydney Area Health Service & Ors

Supreme Court of NSW|2006-05-17|Before: McDougall J, Dougall J

CITATION : Lopinto v The Central Sydney Area Health Service & Ors [2006] NSWSC 488

CATCHWORDS : LIMITATION OF ACTION - extension of time - whether plaintiff aware of connection between personal injury and defendants' act or omission - whether jurisdiction to extend time enlivened - whether prejudice to defendants because unable to have a reasonably fair trial - whether other discretionary considerations dictate refusal of leave

Civil Liability Act 2002 Civil Procedure Act 2005 LEGISLATION CITED : Evidence Act 1995 Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969

Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells (1999) 3 VR 863 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Clough & Rogers v Frog (1974) 48 ALJR 481 Cropper v Smith (1884) 26 Ch D 700 CRA Ltd v Martignano (1996) 39 NSWLR 13 Dedousis v The Water Board (1994) 181 CLR 171 Drayton Coal Pty Ltd v Drain (40418 of 1995, 22 August 1995, unreported; BC 9505244) CASES CITED : Fletcher v Besser [2004] NSWCA 132 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 George v Lifese Steel Erections Pty Ltd [2003] NSWSC 1146 Holt v Wynter (2000) 49 NSWLR 128 McLean v Sydney Water Corporation [2001] NSWCA 122 Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 Sydney City Council v Zegarac (1998) 43 NSWLR 195 The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Francisco Lopinto (Plaintiff) PARTIES : The Central Sydney Area Health Service (First Defendant) Dr David McDowell (Second Defendant) Dr Peter Tornya (Third Defendant)

P Webb QC/R W C Royle (Plaintiff) COUNSEL : M J Windsor (First Defendant) J Downing (appearing for the Third Defendant and mentioning the appearance of the Second Defendant)

Slater & Gordon (Plaintiff) SOLICITORS : Frances Allpress (First Defendant) Blake Dawson Waldron (Second Defendant) David Ian Brown (Third Defendant)

LOPINTO v THE CENTRAL SYDNEY AREA HEALTH SERVICE & ORS [2006] NSWSC 488

Nature of the plaintiff's case 3 Issues on the application for leave to amend 6 The legislative scheme 16 Background to the application for leave to amend 20 Approach to the discretion to extend time: general considerations 37 Approach to the application of s 60G: specific considerations 46 Analysis: is the discretion enlivened? 53 Ambit of the dispute 53 The lawyers' tales 57 Mr Lopinto's state of awareness 73 Analysis: should the discretion be exercised? 91 Presumptive prejudice: the first defendant 92 Actual prejudice: Dr Tornya 98 Does Mr Lopinto have a prima facie case? 118 Delay 119 Dr Watson's alleged inconsistent opinions 121 Costs 123 The Civil Liability Act 125 Further written submissions 133 Conclusion on discretion 143 Sections 64 and 65, Civil Procedure Act 144 Orders 146

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20263/99 FRANCISCO LOPINTO v THE CENTRAL SYDNEY AREA HEALTH SERVICE & ORS

1 McDOUGALL J: The plaintiff, Mr Francisco Lopinto, suffers from paraplegia. He says that his injuries and disabilities are due to negligent medical advice and treatment in May and June 1996. By his statement of claim filed on 4 June 1999, Mr Lopinto asserted that the negligence was that of:

(1) The first defendant, in respect of medical advice and treatment whilst the plaintiff was an in-patient at Royal Prince Alfred Hospital (RPAH) from 30 May to 26 June 1996; and

(2) The second defendant, in respect of operative treatment performed by the second defendant at RPAH on 26 June 1996.

2 Mr Lopinto now wishes to amend his statement of claim so as to allege:

(1) That the first defendant was also negligent in respect of:

· Mr Lopinto's attendances at the outpatients department of RPAH on 11, 14 and 18 May 1996; and

· Medical advice and treatment provided to the plaintiff whilst he was an in-patient at Canterbury Hospital from 18 until 30 May 1996.

(2) That Dr Peter Tornya, the proposed third defendant, was negligent in respect of medical advice provided by him to Mr Lopinto at Canterbury Hospital during the period 18 to 30 May 1996.

3 Argument on the application for leave to amend proceeded pursuant to an amended notice of motion filed on 18 April 2005, and by reference to a draft amended statement of claim annexed to that notice of motion. In the course of argument, I expressed the view that the draft amended statement of claim was deficient in that it did not plead, perhaps at all and certainly adequately, Mr Lopinto's case on causation as against Dr Tornya. Mr Webb QC, who appeared with Mr Royle of counsel for Mr Lopinto, accepted this proposition, and a revised draft amended statement of claim (itself in turn revised to eliminate typographical errors) was propounded. The respondents made written submissions in respect of that revised draft. In what follows, references to the "proposed amended statement of claim", or cognate expressions, are to the final revised draft unless otherwise indicated.

4 The case that Mr Lopinto wishes to make out is most simply explained by setting out the relevant paragraphs, 7 to 34 (in the case of paras 29 to 34 without their particulars), of his proposed amended statement of claim: "7. On 11 May 1996, the Plaintiff attended the Out-Patients Department of RPAH with a history of feeling unwell with "flu-like" symptoms including headaches, sore throat, myalgia, generalised weakness and photophobia. He was diagnosed with a 'viral infection'. The Plaintiff was not admitted. 8. On 14 May 1996, the Plaintiff re-attended RPAH and continued to complain of headache, sore throat, fevers and vomiting, myalgia, bilateral flank pain radiating down the legs and photophobia but was not admitted. He was referred back to his general practitioner (LMO). 9. On 18 May 1996 he re-attended RPAH experiencing fever, muscle aches and inability to sleep. He waited approximately 4 hours, but was not seen, and then left. 10. At about 5:30pm, on 18 May 1996, the Plaintiff attended the Emergency Department of Canterbury Hospital with a history of back pain in the right lumbar region radiating up into the thoracic area, and down into the right thigh and intermittent cough productive of grey sputum. Such pain had been present for 2 weeks. The plaintiff was admitted and was cared for, inter alia, by the Third Defendant as a VMO as part of the treating medical team. 11. The Plaintiff remained at Canterbury Hospital as an inpatient until 30 May 1996 when he was transferred to the RPAH for further treatment. During the course of his admission at Canterbury Hospital, various investigations were undertaken including a CT scan of the abdomen, but not his back, and the Plaintiff continued to complain, inter alia, of pain in the back area with neurological signs. Specifically no MRI scan, CT scan, ultrasound, bone scan of the spine or lumbar puncture was [sic] performed. 12. A possible diagnosis of Tuberculosis Meningitis ("TB") was first made by the treating medical team at Canterbury Hospital on 21 May 1996. 13. The First Defendant and/or Third Defendant arranged for the Plaintiff to be seen by an infectious diseases specialist on or about 22 May 1996, Dr Gottlieb who advised an MRI scan of the spine and/or bone scan "would provide best diagnostic value". No such MRI Scan or Bone scan was performed at that time. 14. On or about 30 May 1996, the Plaintiff was admitted to the Royal Prince Alfred Hospital by way of transfer from the Canterbury Hospital. The Plaintiff was suffering from deep lower lumbar tenderness and a spiking temperature. 15. On 31 May 1996 the Plaintiff was investigated by way of blood culture, "Magnetic Resonance Imaging" (MRI) scan and Cerebral Spinal Fluid Spinal Tap (CSF Tap). Such investigations were suggestive of TB. 16. As a result of the delay in administering anti-TB medication, the Plaintiff has suffered a progressive deterioration in his condition including reduced power to his lower limbs, progressive weakness to the right upper limb, development of a syrinx extending from C2 to below T4, leading to the Plaintiff's paraplegia. 17. On 1 June 1996 the Plaintiff was administered, inter alia, anti-TB medication and cultures were taken. Such cultures proved negative for TB Meningitis. 18. On 5 June 1996 the Plaintiff's anti-TB medication was quadrupled. 19. On 7 June 1996 the Plaintiff exhibited decreased neurological signs in his lower limbs and hip, but a CT scan of his abdomen and pelvis proved normal. 20. From 8 June to 11 June 1996 the Plaintiff's neurological signs in his lower limbs improved, as did the power of his legs. 21. On 12 June 1996 DNA tests for TB proved negative and minor improvement was experienced in the Plaintiff's pain. 22. On 15 June 1996 the Plaintiff commenced to experience back pain which increased in the following days. Tests for TB meningitis continued to prove negative, although such diagnosis was " presumed " by the medical staff of the First Defendant. On 19 June 1996, a further CSF Tap was undertaken. 23. By 24 June 1996 the Plaintiff was complaining of, inter alia, neck pain and lower back pain, decreased power of the lower limbs and an MRI scan was ordered. 24. The MRI scan of the spine on 24 June 1996 reported appearances consistent with an extensive meningeal process, most likely infection. Evidence of spinal cord compression was not exhibited by the said MRI scan. 25. On 25 June 1996 the agent and employee of the First Defendant, Dr Cappelen-Smith consulted with the Second Defendant in relation to the Plaintiff's condition. 26. On 25 June 1996 a Consent Form was signed by the Plaintiff to undergo the operation of "thoracic laminectomy debridement of spinal cord" . Such Consent Form was signed by the Plaintiff and witnessed by Dr. Law, an agent or employee of the First Defendant. At no time prior to the obtaining of consent, did the defendants undertake research regarding the Plaintiff's presumed diagnosis of TB Meningitis. No consultation occurred on this day between the defendants and an infectious disease specialist regarding the Plaintiff's condition. 27. Before obtaining consent, the nature of the operation was not adequately explained to the Plaintiff, and no indication or explanation was given to the Plaintiff that the Second Defendant and agents of the First Defendant would carry out a decompression of the spinal cord or durotomy. Further the Defendants indicated that without the operation, the Plaintiff would become a paraplegic. 28. On 26 June 1996 the Second Defendant, with agents and employees of the First Defendant, carried out a T5 to T10 laminectomy, durotomy, biopsy and decompression of the spinal cord at the Royal Prince Alfred Hospital. 29. Further or in the alternative as a result of the said operation the Plaintiff suffered loss of power to his lower limbs, progressive weakness to the right upper limb with the development of a syrinx extending from C2 to below T4, resulting in paraplegia. 30. The said injury to the spine, development of syrinx and paraplegia was as a result of the negligence of the servants or agents of the First Defendant and/or negligence of the Second Defendant/ and or negligence of the Third Defendant. 31. Further and in the alternative, the said injury was caused by the negligence of the Second Defendant and/or Third Defendant. 32. Further and in the alternative, certain implied terms existed as a result of the contractual arrangements referred to in paragraph 6 above and such implied terms were breached. 33. By reason of the negligence and/or breach of implied terms by the First Defendant, its servants or agents, and/or the Second Defendant, and/or the Third Defendant; the Plaintiff has suffered injury, loss and damage. 34. Further or in the alternative the failure by the First and/or Third Defendant to promptly diagnose and treat the Plaintiff's TB condition lead to the need for surgical intervention which caused the Plaintiff's paraplegia."

5 In essence, Mr Lopinto's case is that he was suffering tuberculous meningitis when he was first admitted to Canterbury Hospital (indeed, at the date of his earlier presentations to RPAH on 11 and 14 May 1996) and that a diagnosis, or provisional diagnosis, of tuberculous meningitis should have been made earlier than it was. Thus, Mr Lopinto says, effective therapy should have commenced earlier than it did; and if this had happened, he says, it is likely that the progress of the disease would have been halted. Alternatively, Mr Lopinto says, his paraplegia was a result of the operation; and the risks of the operation (including the risk of paraplegia) were not adequately explained to him. Although Mr Lopinto wishes to allege that the operation was performed prematurely, and without sufficient tests having been conducted, he does not allege that it was performed negligently.

6 It was common ground that Mr Lopinto knew, at the relevant time, that he had suffered personal injury, and that he was sufficiently aware, at the relevant time, of the nature or extent of that personal injury. His case was not put on sub paras (i) or (ii) of s 60I(1)(a).

7 However, Mr Lopinto contended that he was unaware at the relevant time of the connection between his personal injury and the acts or omissions sought to be alleged by the proposed amended statement of claim. The defendants (within whom I will include, for convenience, Dr Tornya unless the context requires otherwise) submitted that Mr Lopinto did have sufficient awareness of that connection by the relevant time.

8 The defendants did not submit that if (contrary to their principal submission) I were to conclude in Mr Lopinto's favour on sub para (iii), the application nonetheless had not been made within three years after the time when Mr Lopinto became, or should have become, aware of the matters listed in para (a). They did not submit that Mr Lopinto was in any event disqualified by para (b).

9 With one, limited, qualification, the first defendant did not submit that it suffered any relevant prejudice in so far as the proposed amendments concerned the treatment received by Mr Lopinto at RPAH from 30 May to 26 June 1996. It did submit that it suffered what I might call "presumptive prejudice" in respect of the other allegations sought to be made against it (including, as I understand its position, not only the allegations relating to the treatment Mr Lopinto received at Canterbury Hospital from 18 to 30 May 1996, but also those in relation to his attendances as an outpatient at RPAH on 11, 14 and 18 May 1996).

10 Further, the first defendant submitted that it had suffered what I might call specific or actual prejudice in a number of respects:

(1) Because of what it said were the inconsistent opinions of Dr Ashley Watson, a specialist medical practitioner who had furnished expert medico-legal reports for Mr Lopinto.

(2) As to the costs that would be wasted if leave to amend were granted, in circumstances where there was no evidence that Mr Lopinto would be able to meet any order for costs.

(3) By reason of difficulties that were said to flow from what was said to be the differential application of the Civil Liability Act 2002, were leave to amend granted.

11 The first defendant did not point to specific or actual prejudice in relation to its ability to defend Mr Lopinto's fresh allegations on their merits.

12 The first defendant submitted further that it was not just and equitable that Mr Lopinto should be granted the necessary extension of time, given what it said was the unexplained delay in obtaining expert medico-legal opinion to substantiate (or, for that matter, negate) the further causes of action now sought to be pursued, coupled with the extent of his relevant knowledge or awareness immediately prior to the expiration of the limitation period.

13 The second defendant neither supported nor opposed the grant of relief sought by Mr Lopinto. He adduced no evidence and made no submissions.

14 Dr Tornya relied on the matters to which the first defendant pointed. More importantly, however, he submitted that he would suffer specific or actual prejudice were Mr Lopinto now given the leave sought because, he said, he could not adequately defend himself and thus could not receive a fair trial. Further, he submitted, he had lost the opportunity fully to deal with apportionment between him and the first defendant in the event that both were found liable to Mr Lopinto. In each case, Dr Tornya submitted, the passage of time and the inadequacy of the hospital records meant that he could neither remember nor reconstruct what had happened and why, in relation to crucial aspects of the treatment given to Mr Lopinto whilst he was an in-patient in the Canterbury Hospital.

15 The parties also took differing positions as to the order for costs that should be made were Mr Lopinto to obtain the relief sought. They accepted that I should publish my reasons, and deal with the principal question - whether Mr Lopinto should obtain leave to amend - and permit them to put submissions on costs once they had had an opportunity of considering my reasons.

16 In his amended notice of motion, Mr Lopinto relied on s 58, or alternatively s 60G, of the Limitation Act 1969. At the hearing of the application, s 58 was abandoned: understandably so, since it applies only to causes of action that accrued before 1 September 1990 (see s 57A).

17 Further, and in relation to the amendments against the first defendant, Mr Lopinto placed reliance on ss 64 and 65 of the Civil Procedure Act 2005. However, the application of those sections, and in particular the reference, in subs (2)(c) of the latter, to "the same, or substantially the same, facts as those giving rise to an existing cause of action and claim for relief", was not explored in any detail. Since in my view ss 64 and 65 do not assist Mr Lopinto in respect of the principal issues that were debated, I shall not take up space by setting them out.

18 The substantial argument proceeded by reference to s 60G. In considering s 60G, it is necessary to bear in mind the matters referred to in ss 60F and 60I. I set out those sections:

"Subdivision 3 - Discretionary extension for latent injury etc 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."

19 Subsections (2), (3) and (4) of s 60E have no present relevance and need not be set out.

20 For present purposes, I assume that the facts that Mr Lopinto wishes to allege by paras 7 to 28 of his proposed amended statement of claim are capable of proof; it would appear that at least some of those facts may not be in dispute. I note that the defendants did not accept that all the material facts alleged in those paragraphs were capable of proof; but since Mr Lopinto abandoned reliance on s 58, it is not necessary to pursue that fascinating issue.

21 Dr Tornya's role is explained by para 3 of the proposed amended statement of claim: "At all material times the Third Defendant was a duly qualified and registered medical practitioner practicing [sic] as a Visiting Medical Officer ('VMO') at Canterbury Hospital."

22 Again, I assume that para 3 is capable of proof (if it were not to be admitted).

23 As I have said, these proceedings were commenced by statement of claim filed on 4 June 1999. The first defendant filed its defence on 15 October 1999. The second defendant filed his defence on 21 December 1999.

24 Mr Lopinto filed a further amended statement pursuant to the then SCR Pt 33 r 8A on 14 December 1999.

25 A conference of experts retained by Mr Lopinto and the present defendants took place in February 2003. The experts produced a joint report, signed on various dates between May and August 2004. That report was provided to the Court, and by the Court to the parties, in October 2004.

26 On 3 November 2004, Mr Lopinto filed a notice of motion for leave to amend. The plaintiff did not seek, by that notice of motion, to join Dr Tornya or to allege negligence against him. He sought only to add a claim against the first defendant in respect of its alleged negligent treatment of him at Canterbury Hospital between 18 and 30 May 1996.

27 The amended notice of motion was filed on 18 April 2005. By that notice of motion Mr Lopinto seeks, as I have said, both to expand his claim against the first defendant in the ways that I have just described and to join, and allege negligence against, Dr Tornya.

28 Mr Lopinto has retained, consecutively, three firms of solicitors. First, he retained W G McNally & Co (Mr David Thomas Trainor). That firm acted for Mr Lopinto from about March 1997 until their retainer was terminated on about 13 August 1998. During that time, Mr Trainor investigated Mr Lopinto's claim. He obtained clinical notes from Canterbury Hospital and RPAH, a medical report from Mr Lopinto's general practitioner, Dr Lucy Ballin, and a preliminary opinion (of an expert, or medico-legal, nature) from Dr Paul Carne.

29 On about 3 September 1998, W G McNally & Co transferred their file, in relation to Mr Lopinto's proposed claim, to Geronimo & Associates (Ms Erlinda Geronimo). In about 2001, Mr Lopinto instructed Ms Geronimo to transfer the file to Mr Lopinto's present solicitors, Slater & Gordon (Mr William James Madden).

30 Whilst Ms Geronimo acted, she continued the investigation of Mr Lopinto's case. She reviewed the material contained in the file received from W G McNally & Co. She briefed senior and junior counsel on about 28 September 1998. She approached a number of medical practitioners for medico-legal opinions. She filed the statement of claim on 4 June 1999.

31 Slater & Gordon have acted for Mr Lopinto since about January 2001. It was they who filed, on behalf of the plaintiff, the notice of motion of 3 November 2004 and the amended notice of motion of 18 April 2005.

32 The essence of Mr Lopinto's case on the application for leave to amend (as it is presently framed: ie, including the application for leave to join Dr Tornya as a defendant) is that it was not until about September 2004 that Mr Lopinto, or his legal advisers, became aware of the possibility that Mr Lopinto's condition should have been diagnosed earlier than it was; and that earlier treatment, following that putative earlier diagnosis, might have halted the progress and consequences of the disease.

33 At least some of the medical evidence on which Mr Lopinto relies suggests that his paraplegia is a consequence of the disease rather than the treatment: see in particular the report of Dr John Raftos, dated 4 November 2004, in which it is stated unequivocally that: "Mr Lopinto developed paraplegia because of TB meningitis. Earlier diagnosis and treatment of the meningitis would, on the balance of probabilities, have either prevented his paraplegia or significantly reduced its extent and severity."

34 This view is supported by Dr Ashley Watson, who said: "Administration of anti tuberculous medication at any stage during this initial admission to hospital [ie, Canterbury Hospital] would have substantially improved Mr Lopinto's outcome. Administration of anti tuberculous medication at this time would have likely prevented him from developing incomplete paraplegia. He would have had a very good chance of making an near-complete recovery."

35 The experts who have provided the joint report to which I have referred are preponderantly, but not unanimously, of the view that it is likely (or, more strongly, inevitable) that Mr Lopinto would have become paraplegic had the surgery not been performed, and that the surgery prevented the progress of, rather than caused or contributed to, the paraplegia.

36 Notwithstanding the apparent inconsistency in Mr Lopinto's case, I proceed on the basis that he may be able to prove at trial (should he be permitted to do so) that the alleged failure to diagnose his condition more promptly, and the alleged failure to treat that condition more promptly when he attended RPAH as an outpatient, or whilst he was a patient in Canterbury Hospital, may have caused or contributed to his paraplegia.

Approach to the discretion to extend time: general considerations

37 The general purpose of a limitation period is "to preclude stale claims which a defendant would find it hard to resist by reason of effluxion of time": Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 546 (Toohey and Gummow JJ). In the same case, McHugh J, at 552-553, identified four "broad rationales for the enactment of limitation periods":

(1) The passage of time means that relevant evidence may be lost.

(2) "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".

(3) "People should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them".

(4) "The public interest requires that disputes be settled as quickly as possible".

38 Provisions such as s 60G provide for a discretion to extend time. In Brisbane South, Dawson J at 544 and McHugh J at 551 said that such provisions do not grant "a presumptive right to an order" extending time once the conditions for the exercise of the discretion have been satisfied. Kirby J, who dissented in the result, expressed a similar view at 567, where he said that the applicant for an extension of time had the burden, through the whole of the proceedings, to satisfy the court that an order for extension should be made; it was not a case that, "the preconditions being established, it is for the defendant to show why it would be unreasonable to make the order."

39 Nonetheless, as Toohey and Gummow JJ pointed out at 547, "[t]he discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse … ". Nonetheless, as their Honours continued to recognise, it was "well established [that] an applicant must satisfy the court the grounds exist for exercising the discretion in his or her favour".

40 The decision in Brisbane South concerned a Queensland provision that was similar to s 58. However, I think, the statements of general principle as to the manner of exercise of the discretion to extend time (assuming it to be enlivened) apply equally to s 60G. In either case, I think, if the discretion is enlivened, its exercise is governed not by some mechanical comparison of the respective prejudices to the parties if it is, or is not, exercised in favour of the applicant. Ultimately, the question is whether the purpose of the limitation provision would be frustrated if time were to be extended: see McHugh J at 553, where his Honour said that "whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action." The primary purpose of a limitation is to avoid injustice to defendants by preventing the agitation of stale claims which they are unable effectively to meet. The objective of provisions for extension of time is to prevent injustice to plaintiffs through the rigid application of time limits: Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628, 635.

41 Thus, in considering whether extension of time would occasion significant prejudice to a defendant, it is relevant, and in many cases decisive, to enquire whether, by reason of the effluxion of time, a fair trial is possible: see Toohey and Gummow JJ in Brisbane South at 548. In the same case, Dawson J said, at 544, that an applicant could only succeed by showing "that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant"; and in like vein, McHugh J said at 553-554 that "the applicant [must] 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."

42 In Sydney City Council v Zegarac (1998) 43 NSWLR 195, Mason P discussed, at 197-199, the possible differences of approach that may be perceived in the various judgments in Brisbane South. I do not think that it is either necessary or profitable for me to attempt to explore those matters for myself. I am content to take from the judgment of Powell JA in the same case at 242 the following as an appropriate statement of the test to be applied: "I am of the view that, if the appellant were to be required to defend the respondent's claim, it would be placed in a position of significant disadvantage and it would be highly unlikely that a fair trial would result. That being so it seems to me that it is not just and reasonable that the respondent have the benefit of an order extending the limitation period."

43 In that case, the extension was sought pursuant to s 60C of the Limitation Act, not to s 60G. Section 60C, by reference to s 60E(1)(b), expressly required attention to be paid to the question of prejudice to the proposed defendant. But given that this is a consideration of general relevance (and no one submitted before me that prejudice was irrelevant), I do not think that this matters.

44 In Holt v Wynter (2000) 49 NSWLR 128 at 147, Sheller JA (with whom Meagher and Handley JJA and Brownie AJ agreed), having considered the judgments in Brisbane South, said at 147 [119]: "[119] 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."

45 That was a case under s 52(4) of the Motor Accidents Act 1988. But it is clear, from the width of the expression employed by Sheller JA, that his Honour's statement of the applicable principle did not depend upon the particular legislative framework.

Approach to the application of s 60G: specific considerations

46 The parties referred me to very many decisions, in particular of the Court of Appeal, dealing with the application of s 60I. I hope that I shall not be thought to be disrespectful to either the decisions or the submissions if I do not refer to all of the decisions. I take that course because the principles that are relevant to the consideration and disposition of this application seem to me to be relatively clear.

47 The operation of ss 60G and 60I was considered by the High Court of Australia in Dedousis v The Water Board (1994) 181 CLR 171. That decision was authoritatively analysed by Gleeson CJ (with whom Priestley and Meagher JJA agreed) in Drayton Coal Pty Ltd v Drain (40418 of 1995, 22 August 1995, unreported; BC 9505244). His Honour said (at BC 5, 6) that the decision in Dedousis should be understood as follows: "1 For the purposes of a case such as the present the decision of the High Court in Dedousis establishes the following propositions: S60F is no more than an introductory provision that indicates the purpose of Subdiv3. It is in s 60I(1), and not in s60F, that the requirements to be satisfied by a plaintiff are to be found. 2 The requirement, in s60I(1)(a)(iii), that the plaintiff was, at a specified time, unaware of the connection between the plaintiff's personal injury and the defendant's act or omission, is not identical to a requirement (of a kind which might be inferred from s60F) that the plaintiff was unaware of the cause of the injury. (The decision in Dedousis turned upon that difference). 3 S60I(1)(a)(iii) is concerned with the ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff's awareness of that legal complexion, is not what matters for the purpose of s60I(1). 4 The acts or omissions referred to in s60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s60G. 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 s60I(1)(a)(iii) will be satisfied. 6 Even so, it will still be necessary for the court dealing with the application for an extension of time to decide whether, under s60G(2), it is just and reasonable to extend the limitation period."

48 In South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477, Hodgson JA (with whom Beazley JA agreed) referred at para [31] to the passage from Holt to which I have just referred. He said that he accepted the statement but did "not accept that it should be understood as encapsulating either the total effect of the High Court decision [in Brisbane South], or the totality of the issues to be determined under provisions such as s 60G".

49 His Honour then said at para [32] that the ultimate issue, the onus of establishing which lay on the applicant for an extension of time, was whether it was "just and reasonable" for time to be extended. His Honour pointed to three considerations to be addressed in considering that matter:

(1) The question of "significant prejudice", to which Sheller JA referred in Holt, was not to be judged in a vacuum. It was to be assessed by reference to the chances of obtaining a fair trial, which in turn meant "an acceptably fair trial in the circumstances" not one involving some unattainable concept of ideal or perfect fairness.

(2) Whilst an opponent might have an evidentiary onus to lead evidence suggesting prejudice, the applicant bore the ultimate onus of showing that there would not be such prejudice as to make it unlikely that there could be an acceptably fair trial.

(3) Even if the applicant discharged that onus, it might nonetheless fail on other grounds: "There may still be other reasons why the Court may not be satisfied that it is just and reasonable to grant the extension."

50 Against that background, his Honour at para [34] said that the appropriate question for the court of first instance is whether or not it is "satisfied that the prejudice is not such as to make the chances of an acceptably fair trial unlikely" (his Honour's emphasis). His Honour said that, if that question were answered in favour of the applicant, then "in the absence of any other issue the extension probably should [be] granted".

51 In McLean v Sydney Water Corporation [2001] NSWCA 122, Giles JA (with whom Stein JA and, with some additional reasons, Hodgson CJ in Eq agreed) dealt with the question of general prejudice as follows, at para [27]: "I do not exclude as a consideration properly to be taken into account as part of, or together with, considerations such as these, in appropriate cases, that there has been a particularly long lapse of time since the events material to the claim. In such circumstances there will commonly be an element of general prejudice, even if not such as to make a trial unfair, meaning thereby the dimming of memories and other such consequences of the passage of time. Fairness is a matter of degree. As Priestley JA said in Holt v Wynter at 142, the concept of a fair trial is a relative one, and must in any particular case mean a fair trial between the parties in the circumstances of that particular case. As well, for the trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable, and that a trial may be held for which not all relevant evidence is before the court does not mean that it is not a fair trial."

52 In considering the "knowledge" and "awareness" that are referred to in sub paras (i) to (iii) of s 60G(1)(a), attention must be focused on the knowledge or awareness of the applicant, not on the knowledge of his or her legal advisers. See Harris v Commercial Minerals Ltd (1996) 186 CLR 1; CRA Ltd v Martignano (1996) 39 NSWLR 13.

Ambit of the dispute 53 It was clear that Mr Lopinto knew, well before the expiration of the relevant limitation period, that he had suffered personal injury, and that he was aware of the nature and extent of that personal injury. Mr Webb did not submit otherwise. Debate therefore focused on s 60I(1)(a)(iii). Mr Webb submitted that Mr Lopinto was unaware, at the relevant time, of the connection between his personal injury and the acts or omissions sought to be raised through the amendment. Mr Windsor of counsel, who appeared for the first defendant, and Mr Downing of counsel, who appeared for Dr Tornya, and who mentioned the matter for the second defendant, submitted otherwise. (It is convenient to note at this point that the second defendant neither consented to nor opposed the grant of leave to amend; and there was neither evidence nor submission addressed to any question of prejudice so far as he was concerned, although the amendments encompassed enlarged particulars of alleged negligence on his part.)

54 Mr Lopinto's case against the first defendant, as to the alleged failure to diagnose and treat his condition when he attended RPAH as an outpatient, relates to events between 11 and 18 May 1996. His case against the first defendant and Dr Tornya, as to the alleged failure to diagnose and treat his condition whilst he was admitted to Canterbury Hospital, relates to events between 18 and 30 May 1996. Mr Lopinto's case against the first defendant in respect of his treatment at RPAH relates to events between 30 May and 26 June 1996. His case against the second defendant in respect of failure to warn relates to events that occurred on 25 and 26 June 1996 (the former being the date of the consent, and the alleged inadequate explanation of risk, and the latter being the date of the operation).

55 It appears to be Mr Lopinto's case, and I proceed upon the basis, that his paraplegic condition incepted no later than 26 June 1996. On that basis, time commenced to run on that day in respect of both the events of 18 to 30 May 1996 and the events of 30 May to 26 June 1996. I accept that there may be some imprecision in this, but on no view is any imprecision sufficient to affect the outcome of this application. I note that Mr Windsor submitted that the cause of action may have arisen on 25 June 1996, when the alleged inadequate advice and explanation of the operative procedure were given. Mr Windsor accepted, and it is in any event plain, that nothing turns on this.

56 For present purposes, therefore, it is sufficient to note that the plaintiff's claim against the existing or proposed defendants became time barred after 26 June 1999: see s 18A(2) of the Limitation Act.

57 In essence, as I have indicated, Mr Lopinto's case on this point is that it was not until September 2004 that he, through his legal advisers, became aware that there was an arguable case that his condition should have been diagnosed earlier than it was, whilst he was a patient at Canterbury Hospital, and that non surgical treatment for his condition should have been commenced earlier, and again whilst he was a patient at Canterbury Hospital.

58 Mr Madden's evidence is that he did not become aware of those matters until September 2004. He says that Mr Royle, who was counsel instructed by him for Mr Lopinto, conferred "with an infectious diseases specialist, Dr Stanley, in Melbourne to discuss the likely progress of the plaintiffs [sic] condition if he had not undergone the surgery … ", and that "[i]n that conference, Dr Stanley for the first time expressed concern at the delay in diagnosing, or at least strongly suspecting, Tuberculosis in the period 18 May 1996 to 31 May 1996." (see Mr Madden's affidavit sworn 24 November 2004, paras 4 and 5).

59 I noted with some surprise that Mr Royle appeared as Mr Webb's junior. My surprise was not diminished when it became apparent that Mr Royle had furnished an affidavit, which was read in support of the application for leave to amend. Perhaps fortuitously, and certainly fortunately, there was no contention as to the matters to which Mr Royle deposed, and he was not required for cross-examination. Nonetheless, I regard it as unsatisfactory that counsel who is a witness in a case (even by the medium of an affidavit where there is no requirement for cross-examination) should appear in that case (even as junior to Queens Counsel). That unsatisfactory situation is compounded when, for the reasons that I indicate below, there remains some doubt as to the full extent of the advice that Mr Lopinto may have been given, in circumstances where, clearly enough, that may be relevant to the state of his "awareness".

60 Mr Madden says that "Dr Stanley informally commented to the effect that Tuberculosis ought to have been at least suspected earlier and appropriate investigations carried out sooner." (see para 5 of his affidavit).

61 Dr Stanley apparently suggested that those matters be raised with Dr Watson, who had already reported. That was done on 16 September 2004 (in conference). Dr Watson reported on 10 November 2004. Dr Raftos had reported on 4 November 2004. Both doctors supported the view attributed to Dr Stanley.

62 However, that is not the only evidence bearing on Mr Lopinto's (or his legal advisers') appreciation of the possibility of delay in diagnosis and treatment. When Mr Lopinto consulted Mr Trainor on 8 August 1997, Mr Trainor gave consideration to the question of delay. He said that he spoke to Mr Lopinto: "… about the basis upon which his claim could be framed. One possibility I raised was that there had been a delay in obtaining proper treatment and the other was that the laminectomy operation which he underwent on 26 June 1996 was done negligently."

(See Mr Trainor's affidavit sworn 6 July 2005, para 7.)

63 A memorandum of that conference prepared by Mr Trainor says, among other things: "1. The delay in getting apparently proper treatment extends only from the 11th May 1996 (when first seen at out-patients [sic] department at RPAH) to either 18th May 1996 (when admitted to Canterbury Hospital) or 30th May 1996 when transferred back to RPAH. 2. The question therefore as to whether any damage resulted by [sic] that delay is moot. 3. The next possible cause for concern is whether he [sic] laminectomy operation on the 26th June 1996, was done negligently. Flowing from this are the following issues: (a) Whether the laminectomy is the cause of his apparent paraplegia or whether that is the result of the condition. … 4. The next question which arises is the potential liability of the GP if she failed to properly diagnose and treat the condition."

64 As I have mentioned, Mr Trainor requested a medico-legal opinion from Dr Carne. Dr Carne furnished a report on 21 October 1997. Relevantly, the questions asked of Dr Carne included the following: "2. Was the failure to diagnose and prescribe appropriate therapy between the 11 May, 1996 and 1 June, 1996 likely to have been significant in terms of effecting [sic] the chances of obtaining a cure? 3. Was either Hospital negligent in failing to arrive at a correct diagnosis prior to the 1 June, 1996? 4. Is the paraplegia the result of the TB Meningitis condition or the result of a surgical mishap?"

65 Dr Carne commented relevantly on those questions as follows: "#2. Concerning the Results of Diagnosis As a General Practitioner, I am not in a position to advise on the effect to the outcome for your client of not diagnosing tuberculous meningitis on the 11th may [sic] rather than when effective treatment was commenced on 1st June 1996. Your will need to present the evidence to an Infectious Diseases Specialist for his comments. #3. Concerning Issues of Negligence … I would point out that the diagnosis was first suggested by the results of the lumbar puncture performed on 1.6.96 … A lumbar puncture would have provided enough information to enable the provision of more appropriate treatment. #4. Cause of Paraplegia Unless the operative notes reveal a documented intraoperative mishap I don't think anyone would be able to say that Mr Lopinto's final condition was the result of the tuberculous disease process, an accident at surgery or due to swelling or scarring as a result of the former two processes."

66 Mr Trainor says, of that report: "I have now no specific recollection of my views concerning the content of that report in 1997. I now observe however that the report did not make comment critical of the delay in diagnosis from the time of the plaintiff's admission to Canterbury Hospital on 18 May 1996 until commencement of anti-tuberculosis therapy on 31 May 1996."

67 It is clear that Mr Trainor considered, and discussed with Mr Lopinto, the possibility that delay in diagnosis may have caused or contributed to his paraplegia. It is clear that Mr Trainor sought medico-legal advice on this issue. It is clear that the person consulted, Dr Carne, did not discount the possibility that delay might be relevant, but, rather, recommended that specialist advice be obtained. On no basis could it be said that Dr Carne's response to the questions asked of him negatived the role or significance of delay.

68 Neither Ms Geronimo nor Mr Madden commented in their respective affidavits on Mr Trainor's file note or Dr Carne's report. However, it is clear that Ms Geronimo was aware both of Dr Carne's report and of the significance of the issues that it raised. She sent to Mr Royle (and, it would appear, to Mr Webb) a brief to advise. Not surprisingly, a copy of Dr Carne's report was briefed to Mr Royle. The questions on which his advice was sought included the following: "5.1 Given the fact that there was suspicion of Tuberculosis as early as 18th June 1996; this was confirmed as Tubercular meningitis on 31 May 1996; there was Dr Rothwell's test results of "no vertebral compression", was decompressive laminectomy necessary at the point in time when it was conducted, i.e. 26.6.96. As the client was responding quite well to anti-tubercular treatment as per hospital notes on 18.6.96, why the urgency for laminectomy? 5.2 As decompressive laminectomy was apparently conducted almost quickly, does this involves [sic] negligence? There was no suggestion in the material available to us that the diagnosis (or lack of clear diagnosis) was life-threatening. 5.3 Was the laminectomy the cause of the client's subsequent paraplegia? He was walking (although complaining of weakness of the legs) prior to surgery. 5.4 The swelling of the vertebra (which was diagnosed as "sacral mass"), would probably had [sic] been caused by the tubercular meningitis. Would a prudent surgeon/practitioner first confirm the cause of the swelling rather than embarking on what appears to be "exploratory surgery" to determine the cause or aetiology of the client's complaint? Would a continuing conservative treatment (non-surgical intervention) of tubercular meningitis be the more appropriate form of action? 5.5 Finally, was paraplegia the result of (a) decompression laminectomy, or (b) progress of tubercular meningitis, but bearing in mind that the client was responding well to anti-tuberculosis treatment as early as 18 June 1998."

(See Ms Geronimo's affidavit sworn 28 June 2005, annexure "A".)

69 Ms Geronimo did not say, and neither did Mr Royle, what (if any) advice was given to those questions. Ms Geronimo's evidence said no more than that she understood the negligence issues to be "confined to those surrounding the decompressive surgery" (affidavit, para 15) and none of the medical reports that she had obtained "suggested any breach of duty of care in respect of the plaintiff's treatment in the period prior to commencement of anti-tubercular therapy" (affidavit, para 19).

70 Mr Royle's affidavit is brief. As I have said, he does not say what, if any, advice he gave on the questions that I have set out above. Nor does he say what his views were, except in so far as they may be inferred from a conversation that he says he had with a Mr Rice-Edwards (an English surgeon), who apparently said to Mr Royle that there was nothing in the hospital notes to suggest negligence in the treatment given to Mr Lopinto in Canterbury Hospital. That conversation may have happened in September 2000, July 2002 or July 2003.

71 The evidence shows the result of the enquiries made by Mr Madden once he personally became aware of the possible significance of delay in diagnosis and treatment. There is no reason to think that there would have been any different result had those enquiries been made, as suggested by Dr Carne, at some time closer to the date upon which his report was received (which appears to be 28 October 1997). Mr Trainor volunteered no explanation in his affidavit as to why he did not follow up Dr Carne's advice, to refer the question of delay, and its consequences, to a specialist in infectious diseases. It is not enough to say that he did not read Dr Carne's report as "critical of the delay in diagnosis". Dr Carne made it quite clear that he was not excluding the possibility that delay was significant; rather, his position was that he lacked the expertise to comment. That is why he suggested that an appropriate specialist be consulted. Mr Trainor's reading of his report, on this point, does not explain why an appropriate specialist was not consulted.

72 As I have said, neither Ms Geronimo nor Mr Madden addressed this question in their affidavits. It follows that neither, in their respective affidavits, dealt with why it was that Dr Carne's advice was not followed up.

73 As I have said, it was common ground between all parties that the question posed by s 60I(1)(a)(iii) required attention to the personal awareness, or state of mind, of Mr Lopinto, not to the awareness, or state of mind, of his legal advisers or of experts retained by them. Thus, Mr Webb submitted, the matters canvassed in the previous paragraphs as to the concerns raised by Mr Trainor and Ms Geronimo, and the reactions of Ms Geronimo and Mr Madden to Dr Carne's report, are not relevant to the threshold question. However, it was clear that Mr Lopinto had received, read and understood a copy of Dr Carne's report. He said:

"Q. Is this your best recollection, that you read that report with her in a period up to 12 months after you first went and saw her? A. I am not sure.

Q. When you read it with her, did she read it, or did you read it together, that is to say, read it aloud to you or did you read it by yourself? A. I read it by myself.

Q. When you read it, did you understand it? A. Yes.

Q. You understood what Dr Khan [sic] was saying in his report? A. (No answer).

Q. Let me put it in slightly different way. You had an opportunity to read it, yes? A. Yes.

Q. You could understand what was written in the report? A. Yes, I do understand."

74 Mr Lopinto gave further evidence as to his understanding, in May 1999, (ie, shortly prior to the expiration of the limitation period), by which time, I find, he had received, read and understood a copy of Dr Carne's report, that he was aware of, or "knew", a number of deficiencies in the treatment that he had received at Canterbury Hospital and at RPAH. Those deficiencies were:

(1) That there had been too long a delay by the medical staff at Canterbury Hospital in investigating the reasons for his symptoms (T 19.10-.15).

(2) That the staff at Canterbury Hospital should have done more to investigate the reasons for his symptoms (T 19.30).

(3) That the staff at RPAH had been too slow in investigating his problems (T 20.5).

(4) That those staff ought to have done more, including taking x-rays, to investigate his problems (T 20.10-.25).

(5) That those staff could or should have given him medication, but had given him nothing but Panadol (T 20.30, .45).

(6) That he had not been seen by an infectious diseases specialist on or shortly after his presentation at Canterbury Hospital (T 21.15).

(7) That there were investigations such as x-rays, magnetic resonance imaging scans and lumbar punctures that could have been performed to assist in ascertaining why he had his symptoms (T 21.25-22.30, although noting that Mr Lopinto "didn't know exactly what the MRI would show" (T22.6)).

75 Nonetheless, Mr Lopinto was not directly challenged on the assertion in para 19 of his affidavit sworn 1 July 2005, that he was not aware, prior to September 2004, "that there may have been breach of duty of care through a failure to properly diagnose and treat my condition prior to 31 May 1996." Nor was it put to him in cross-examination that he was aware, by May 1999, not only of the matters referred to above, but also of the, or a, connection between those matters and his "personal injury".

76 On the contrary, Mr Lopinto's only evidence of a connection between the treatment that he received (or did not receive) at Canterbury Hospital and RPAH, and his current condition, was "because there are some nerves that has [sic] been damaged because of the operation" (T 8.52). That answer is the conclusion to a significant series of questions and answers; the answers, which were not relevantly pursued or challenged, and which I accept as truthful, seem to me to negate any awareness on Mr Lopinto's part of a connection between the alleged acts or omissions in his treatment at Canterbury Hospital on the one hand, and his personal injury on the other. I set that evidence out in full: "Q. We will go back a step. In 1996 - and I am now speaking about after the operation that was performed in June 1996 - you knew you were going to have difficulty walking for the rest of your life? A. That I would not be walking?

Q. Yes? A. I am not sure about that.

Q. In June 1996, after the operation, did you realise that you were going to have difficulty walking, either in the next 12 months or even perhaps a longer time? A. Yes.

Q. You knew that you had difficulty using your legs from June 1996 and July of 1996, is that correct? A. No.

Q. Were you able to walk in late June and July 1996? A. Yes.

Q. When was the first time you were unable to walk? A. After the operation.

Q. Is this the operation in late June 1996, is it? A. I am not sure about the date.

Q. Do you know who performed that operation? A. During the operation?

Q. Yes? A. I think the operation took place on 25 or 26, I am not very sure of that.

Q. After that operation you were unable to walk? A. Yes.

Q. After that operation you had difficulty moving your legs? A. After the operation?

Q. Before the operation you had been able to walk? A. Yes.

Q. Before the operation you had been able to move your legs without difficulty, is that right? A. Yes.

Q. When was it you became aware you would have problems, permanent problems, in your ability to walk? A. After the operation.

Q. You became aware of that in late June 1996, that is after 26 June 1996? A. Yes.

Q. At that stage, after the operation in June 1996, you realised that this problem that you had with walking was going to be a significant one and cause significant disability for you for the rest of your life? A. I guess so. Q. You knew that that problem with walking and moving of your legs was related to a disease that you had contracted? A. Yes.

Q. What did you understand it was caused by, or what did you understand in late June 1996 caused your difficulty with walking and moving your legs? A. Come again please?

Q. I am asking about the period after your operation in late June of 1996, do you understand that? A. Yep.

Q. At that time, did you know the reason why you had difficulty walking and moving your legs? A. I can't answer that question.

Q. Is there a reason why you think you can't answer that question? A. Because it is not very clear to me.

HIS HONOUR: I think the answer is the question is not clear.

WINDSOR: Q. In late June 1996, you knew you could not walk, correct? A. After the operation?

Q. Yes. At that time did you know why you couldn't walk? A. The reason why I couldn't walk after the operation was because there are some nerves that has [sic] been damaged because of the operation."

77 In this context, I should note that Mr Windsor submitted that Mr Lopinto was well aware, by May 1999, of a number of the disabilities of which he now complains. Those disabilities include inability to walk, severely reduced mobility, headaches and back pain (see the particulars of disability in the proposed amended statement of claim). Thus, Mr Windsor submitted (and Mr Downing joined in the submission), the concessions made by Mr Lopinto were sufficient to show that he was aware, or that he was not unaware, of the connection between his personal injury and the acts or omissions alleged.

78 I do not accept the latter submission, although I do accept, and find, that Mr Lopinto, by May 1999, had the awareness that was the subject of the former submission. Sub para (iii) focuses on the connection between personal injury and negligence. In the proposed amended statement of claim, the personal injury that is (or would be) alleged is particularised as:

"(a) development of a syrinx (b) flaccid lower limb paraplegia."

79 That this is the injury alleged is clear from paras 27, 28 and 29 which I have set out above: in particular, from para 29, which refers to "[t]he said injury to the spine, development of syrinx, and paraplegia". I think that there is a clear distinction between injury on the one hand and disability resulting from that injury on the other. In this context, the language of sub para (iii) is clear. It directs attention to "personal injury", which must be the personal injury that is (or would if the extension of time were granted be) that alleged to have been suffered as a result of the alleged negligence; and to the alleged negligence. The "connection" that is talked about is, clearly enough, the alleged relationship between the negligence and that personal injury. The consequences of the personal injury may include a number of disabilities. But it is the injury that gives rise to those disabilities, not the disabilities, that is the focus of attention in sub para (iii).

80 Thus, as I have said, I reject the submission that Mr Lopinto's evidence put him out of court on sub para (iii), because it showed some knowledge or awareness of some of the alleged disabilities, and knowledge or awareness of some of the alleged acts or omissions, by May 1999.

81 But even if I am wrong in this construction of sub para (iii), the defendants' case on this point must still fail. Mr Lopinto says that he still does not understand that he suffered from tuberculosis, or tuberculous meningitis, or meningitis (I put the matter thus because that was how it was put in cross-examination) in 1996, or that this condition, or one of those conditions, was the cause of his paraplegia. When pressed again as to his lack of knowledge of the identity and nature of his disease, Mr Lopinto said that he was told that he had a tumour on his spine which might "go up into my brain", and that surgery needed to be performed promptly to rectify this situation. (See T 11.14-.42, 23.20-.28.) Further, as I have noted, it was not put to him directly that he was aware of a connection between the disease of tuberculous meningitis and his personal injury; and his evidence of a connection between that injury and some causal event was, as referred to in para [76] above, that he had suffered nerve damage during the operation that was performed on him.

82 Thus, even if Mr Lopinto's evidence is to be read as involving an acceptance of awareness of deficiencies in treatment, and of awareness of disabilities, it was not put to him, and his evidence does not demonstrate, an awareness at any relevant time of a connection between those subjects. In other words, even if the question posed by sub para (iii) is to be asked by reference to disabilities rather than to "personal injury", the evidence does not permit me to find that Mr Lopinto was aware, at any relevant time, of a connection between the alleged negligence and his condition (to use a more general term), so as to enable me to reject what he said in para 19 of his affidavit.

83 Further, it is difficult to understand why Mr Lopinto should have appreciated the relevant connection when, at least so far as the evidence shows, the various lawyers retained by him, and the various medico-legal experts retained by those lawyers, did not. Further, accepting as I do the evidence given by those lawyers (so far as it goes), noting that it was not challenged in cross-examination, there is no basis for concluding, or even suspecting, that one or other of them might have indicated to Mr Lopinto a view that there was a connection between his personal injury and the acts or omissions of which complaint is now sought to be made. In this context, it may be noted that it was not put to Mr Lopinto that he became aware of any connection through having been told of it by some legal or medical adviser.

84 Finally, in this context, I refer to Mr Lopinto's evidence, which I accept as truthful, that he had read and understood Dr Carne's report at a time which was prior to the expiration of the limitation period. I have noted in para [65] above Dr Carne's relevant opinions were that he could not advise on the outcome of the failure to diagnose tuberculous meningitis earlier than was done, and that, absent some evidence from the operation notes, he did not think that "anyone would be able to say that Mr Lopinto's final condition was the result of the … disease … , an accident at surgery or due to swelling or scarring as a result of [both matters]". Whilst an understanding of that report might have engendered in Mr Lopinto an understanding of the need for further investigation, it could not have engendered in him an understanding of the connection between his personal injury and the acts or omissions now sought to be alleged.

85 Indeed, I think, considering the totality of Mr Lopinto's evidence, it is plain that he has no real understanding, apart from what his legal advisers may have told him based on the opinions of Drs Raftos and Watson (and perhaps others), of any connection between the failure to diagnose and treat tuberculous meningitis earlier than was done and his present physical condition. In case it should be thought that by using the word "failure" in this context I am prejudging the question of, or assuming against the defendants the existence of, negligence (and in the unlikely event that any such prejudgment or assumption might be material), I should make it plain that I am using the word only to indicate the absence of diagnosis, not to suggest negligence.

86 The defendants relied on the judgment of Gleeson CJ in Drayton Coal: in particular his Honour's statement that "[t]he 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", and on Mr Lopinto's evidence as to his awareness of a number of alleged deficiencies in his treatment (see para [74] above) to reinforce their submission that the necessary awareness existed prior to the expiration of the limitation period. It is correct of course to say that, in the context of the phrase "acts or omissions" in sub para (iii), one must refer (as Gleeson CJ said) to "the acts or omissions on which the plaintiff relies to found the cause of action" as "found in the plaintiff's particulars of negligence". However, the enquiry is not just as to awareness of those acts or omissions but as to the connection between them and the personal injury. The defendants' submissions conflated knowledge of deficiencies in treatment with awareness of connection: a fallacy seen most clearly in para 8 of the written submissions for Dr Tornya dated 22 May 2006: " … because the … evidence demonstrates that the Plaintiff knew that his condition could have been diagnosed and treated earlier (in the manner it is now alleged it should have been), he had knowledge of the connection between [Dr Tornya's] acts or omissions and his personal injury before the expiration of the limitation period … ".

87 To say, as that submission does, that awareness of the acts or omissions demonstrates awareness of the connection is illogical. It overlooks that sub para (iii) refers to three things - personal injury, act or omission and "the connection between them" - and requires (in this case) Mr Lopinto to show that he was unaware of that connection. In many cases, awareness of both personal injury and act or omission must, or should, and will, engender awareness of the connection between them. But whether that is so in any particular case depends on the nature of the injury and the nature of the acts or omissions. In the present case, I do not think that the nature of the acts or omissions of which Mr Lopinto acknowledged awareness necessarily (or even persuasively) suggests the existence of a connection between them and his personal injury, so that I should infer, or conclude against his evidence, that he possessed the relevant awareness at the relevant time.

88 Accepting, as I do for the reasons that I have given, what Mr Lopinto says in para 19 of his affidavit, it follows that I should find, as I do, that he was unaware of the connection between the personal injury that he alleges he has suffered, and the acts or omissions that he says caused that personal injury at the expiration of the relevant limitation period on about 26 May 1999.

89 There is no basis in the evidence, having regard to that finding, on which I could find that Mr Lopinto was aware of that connection at the earlier time when he in fact instituted these proceedings, or at any earlier time when he might reasonably have done so, and I find that he was not so aware.

90 Thus, I conclude, it is open to me to extend the relevant limitation period if I conclude that it is just and reasonable to do so.

91 I approach this topic on the basis that, if I am satisfied that it is likely that a trial that is reasonably, or sufficiently in all the circumstances, fair can be had, then the discretion should be exercised in Mr Lopinto's favour unless there are other discretionary considerations requiring the opposite conclusion. That approach, I think, is consistent to the authorities to which I have referred; and it is also consistent with the public interest in enabling someone who has a legitimate claim to press it, providing that it can be pressed without prejudice to the proposed defendants.

92 The first defendant relies on the presumptive prejudice flowing from the passage of time. I accept that this is real prejudice, as McHugh J pointed out in Brisbane South. The nature of such prejudice was explained at some length by Tadgell and Ormiston JJ (with whom Brooking J agreed) in Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells (1999) 3 VR 863, in particular at 887 [60]. I hope that I do not overlook, or underestimate the significance of, such prejudice when I say that, absent demonstration of specific or actual prejudice, it does not seem to me to be a sufficient basis for concluding, on the facts of this case, that there cannot be a trial that is in all the circumstances reasonably or sufficiently fair as between the parties.

93 The first defendant has its records of Mr Lopinto's hospitalisation at Canterbury Hospital from 18 to 30 May 1998. It did not suggest that those records were incomplete, or that any relevant records had been destroyed. It did not suggest that any relevant personnel were missing, or beyond its power. On the contrary, as the evidence to which I shall refer in connection with Dr Tornya's submissions shows, the relevant medical practitioners are available.

94 There is no doubt that memories dim with the passage of time. It is to be expected that a busy medical practitioner would have little, if any, actual recollection of a patient whom he attended in hospital some nine years ago. But, although the relevant medical practitioners have been located, none (with the exception of Dr Tornya, to whose evidence I shall turn) says that he now has such a lack of recollection that he could not, even with the aid of the relevant hospital notes, put himself in a position to comment on Mr Lopinto's allegations.

95 Mr Webb submitted that the lack of actual memory now would be no different to the position that would have obtained had the proceedings been commenced in time. That may be so; but it is not a submission on which I can act, both for the reasons that I have already given in discussing the authorities, and for the reasons given in decisions such as South Western at para [42] (Hodgson JA) and Fletcher v Besser [2004] NSWCA 132 at para [13] (Bryson JA, with whom Mason P and Giles JA agreed).

96 In short, it seems to me, the availability of the relevant notes, coupled with the availability of the relevant medical practitioners and their knowledge of practices at the time, will enable the first defendant to have at least a fair, if not a perfect, opportunity to defend itself in respect of the further allegations sought to be made against it.

97 The exception to which I referred in para [9] is this: the first defendant submitted that Mr Lopinto had not adduced any evidence in support of his contention that it was negligent in respect of the treatment afforded to him when he attended RPAH as an outpatient on 11 May 1996. That may be so; but if, as I propose to do, I grant leave to amend, and to the extent that it is necessary for that purpose to extend time pursuant to s 60G, then I do not think that there is any point in excluding the one attendance (particularly in circumstances where it marks the beginning of the relevant chain of treatment).

98 Dr Tornya swore two affidavits: one on 14 June 2005 and another (more detailed, and sworn with the benefit of detailed consideration of the hospital notes) on 25 August 2005.

99 In the former affidavit, Dr Tornya said (para 4) that he had "no independent recollection of any of the events during Mr Lopinto's admission to the Canterbury Hospital, nor of Mr Lopinto himself." That is understandable.

100 In his second affidavit, Dr Tornya said (para 8) that he could "say some things based on the contents of the notes and [his] usual practice", but reaffirmed that he had no independent recollection of treating Mr Lopinto.

101 As I have said, Mr Lopinto was admitted to Canterbury Hospital on 18 May 1996 - a Saturday. Dr Tornya said that his usual practice was to attend Canterbury Hospital, as a visiting medical officer, every Monday, Wednesday and Friday; and occasionally on Tuesdays; but not on Thursdays except for emergencies.

102 The notes suggest that Dr Tornya saw Mr Lopinto on 19 May (a Sunday) and 20 May 1996. He was seen by the "Team" on 21 May 1996; the notes do not indicate that Dr Tornya was part of that "Team" and, given that 21 May 1996 was a Tuesday, Dr Tornya thinks that he was not. According to the notes, Dr Tornya did see Mr Lopinto the following day.

103 Dr Tornya refers to notes in the hospital records made by a registrar or a resident medical officer, Dr Peter McIvor. The notes show that on 21 May 1996 Dr McIvor (who presumably was part of the "Team") considered tuberculosis as a possible cause of Mr Lopinto's complaints. Dr Tornya says that he would expect that Dr McIvor would have discussed those matters with him, but he has no recollection of the discussion.

104 Likewise, Dr Tornya says that although it appears that on 22 May 1996, he suggested that Mr Lopinto should see a specialist in infectious diseases, he does not know what were his thought processes on that topic.

105 Dr McIvor did request a consultation for Mr Lopinto with an infectious diseases specialist. That happened: the specialist being Dr Thomas Gottlieb. It is not known when precisely Dr Gottlieb saw Mr Lopinto; his notes are undated. It did, however, occur at some time between 22 and 27 May 1996.

106 Dr Tornya refers to other pages in the medical records and comments upon them, confirming that he has no recollection of why various steps were taken, but suggesting possibilities no doubt based on his experience and usual practices at the time.

107 The notes show that Mr Lopinto was also seen by another registrar or resident, Dr P Nathaniel. Again, Dr Tornya says that he is unable to recall what if any discussions he had with Dr Nathaniel, although he would have expected to discuss with Dr Nathaniel Mr Lopinto's condition. Further, though Dr Nathaniel arranged for other tests (including a bone scan), Dr Tornya cannot recall discussing the results of those tests with Dr Nathaniel, although he says that it is likely that he would have done so.

108 Mr Downing submitted, based on the evidence that I have (probably all too briefly) summarised, that Dr Tornya could not now receive a fair trial. He based this submission on the gaps in Dr Tornya's recollection, submitting that the notes were not a fully detailed and comprehensive account of everything that occurred to Mr Lopinto while he was an in-patient at Canterbury Hospital.

109 I do not accept the first submission. Dr Tornya's evidence confirms that which I would have inferred anyway: that he has no actual recollection, and that he is dependent on contemporaneous records, and his knowledge of his usual practices at the time, to explain (to the extent that he may be required to do so) what he did and why he did it. I accept that Dr Tornya's present understanding and explanation of his actions will be incomplete. But I do not accept that it will be so incomplete, when considered in conjunction with other evidence that is or may be available, as to deprive him of the opportunity of a reasonably or sufficiently fair trial in all the circumstances.

110 Indeed, bearing in mind the extent to which (as is apparent from the second affidavit) Dr Tornya has been able to reconstruct details of his attendances on and treatment of Mr Lopinto, and of his interaction with other members of the medical staff at Canterbury Hospital, I think it is clear that he is in a position to defend the claims if they are permitted to be brought. It may be noted that the hospital records contain more references to Dr Tornya's attendances on Mr Lopinto than those that have been the subject of specific comment in Dr Tornya's affidavit. I say this, not by way of criticism of Dr Tornya's evidence, but merely to indicate that he has not yet exhausted the possibilities of refreshing (or reconstructing) recollection that the notes afford.

111 Further, and in this context significantly, Mr Madden's evidence shows that Drs McIvor, Nathaniel and Gottlieb are all alive and still in practice. Dr McIvor was sent extracts from the Canterbury Hospital notes and confirmed that they bore his handwriting. Dr Nathaniel was likewise sent extracts from those notes, but he replied that, on advice from the hospital's lawyers, he would not confirm that the handwriting was his. Nonetheless, it is clear that Drs McIvor and Nathaniel are available to be consulted and called by Dr Tornya (or by any other party, for that matter), and it has not been suggested that there is any reason why either of them could not give evidence.

112 As to Dr Gottlieb: the evidence shows only that he is still in practice. No contact has yet been made with him. However, there is no basis for thinking that he would be unable to give evidence if required to do so; he would have the advantage of the hospital notes, and it may be (I do not know either way) that he may have some records of his own.

113 Thus, Dr Tornya will have available not only his own recollection, as refreshed or reconstructed from the hospital notes, but also (should he choose to avail himself of them) the recollections of Drs McIvor, Nathaniel and Gottlieb, again refreshed or reconstructed from the hospital notes (and, perhaps in the case of Dr Gottlieb, other sources).

114 When one takes all those factors into account, and particularly when one has regard to the nature of the case that is sought to be made against Dr Tornya, I think that the proper conclusion is, as I have said, that he will not be deprived of a trial that is reasonably, or sufficiently, fair in all the circumstances should Mr Lopinto obtain the relief that he seeks by his amended notice of motion.

115 In this context, I should note that Mr Downing objected to my receiving the expert medico-legal reports on which Mr Lopinto relied as proof of the facts asserted in them (specifically, as proof of the histories recited in them) notwithstanding that this was an interlocutory application, and notwithstanding that to permit those reports to stand as proof of the facts asserted in them for the purposes of this application would not prejudice, or affect, any defendant's position at trial. The submission was that I should limit the use to be made of those reports pursuant to s 136 of the Evidence Act 1995.

116 I did not understand the submission at the time it was made; and, on reflection, I still do not understand it. The submission was that to treat those reports as evidence of the facts asserted in them would somehow deprive Dr Tornya of his defence to the application based on specific or actual prejudice. I did not, and do not, see why this should be so. That defence depends on the propositions asserted by Dr Tornya in his affidavit as to the gaps in the hospital records and in his own recollection. It is not subverted by hearsay evidence of history. Mr Downing provided no concrete demonstration of the problem that gave rise to his objection. Nor in any event did he demonstrate why the objection remained relevant once the actual hospital records were tendered.

117 I mention this only to indicate that, in coming to the conclusion that I have, I have taken into account matters of history in so far as they are derived from the hospital records, not in so far as they are derived by hearsay from medico-legal reports. But I have taken that approach because my preference is to use the "best evidence" where it is available, not because, in retrospect, I saw some merit in the objection to which I have referred.

118 There is a suggestion in some cases (see, for example, the judgment of Bryson JA in Fletcher at para [27]) that it is relevant to consider whether the applicant for leave has a prima facie case of negligence suitable for adjudication. No defendant submitted that, if it were incumbent on Mr Lopinto to make out a prima facie case, he had failed to do so. In any event, I am satisfied from the medical evidence that he has shown that he has a prima facie case in respect of the further allegations that he wishes to bring.

119 The first defendant submits that there has been no adequate explanation of the delay in seeking leave to amend. That may be so; but the purpose of the rules relating to amendment, and of the legislative scheme for extension of limitation periods, is to permit plaintiffs to advance claims that are prima facie available to them (but for a limitation defence), where this can be done without causing significant prejudice to the defendants. Those provisions do not exist for the purpose of punishing dilatory plaintiffs. That principle was explained clearly (in the context of an application for leave to amend) by Dawson, Gaudron and McHugh JJ in The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 152-154, where their Honours referred with approval to the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, 710 and to the decision of the High Court in Clough & Rogers v Frog (1974) 48 ALJR 481, 482. That principle - that the role of the court is to decide the rights of the parties, and not to punish them for mistakes - must apply equally to applications for extension of time, as undoubtedly it does to applications for leave to amend.

120 I accept that the explanation of the delay is less than satisfactory. Nonetheless, if (as I think is the case) there is a prima facie case, and there is no sufficient prejudice to the defendants to prevent the agitation of that case, then the significance of delay is spent; and to revive it for the purpose of what would be in effect chastisement is inappropriate. The defendants did not submit that the delay was deliberate, or that it was demonstrative of, or involved, fraud, overreaching, or improper concealment.

121 The first defendant points to two reports of Dr Watson and notes that the later report - supporting the proposition that prompt treatment may have prevented paraplegia - is inconsistent with the first report.

122 One may say two things about that. The first is that Dr Watson may well have an explanation for the apparent inconsistency. The second is that, if he does not, it may impact on the likelihood that the Court will accept his later opinion. On neither basis is this a reason for refusing leave.

123 I accept that the first defendant will incur additional costs if leave to amend is granted. Those costs relate not only to the amendment of its pleadings, but also to the need to meet the new allegations. It does not, however, follow that the costs incurred to date will otherwise be wasted (including, without limitation, the costs incurred by it in respect of the joint conference of experts to which I have referred).

124 I have said that the question of the costs of the application should be reserved. However, in the ordinary way, the plaintiff would be ordered at least to pay the costs of and occasioned by and thrown away by reason of the amendment. I did not understand Mr Webb to oppose the making of such an order, except on the ground that such costs would be subsumed within the general costs of preparation for hearing. I do not think that the likelihood, or lack of it, that Mr Lopinto will be able to meet any such order is of itself a reason for refusing leave, given in particular the relatively small amount of costs that would be caught by such an order compared to the no doubt great amount of costs already expended.

125 The first defendant submitted that, if leave were granted, part of the claim would be covered by what I might call the "old regime" and part, including the question of contribution, by the regime established under the Civil Liability Act.

126 I have to say that I do not understand that submission. I accept that, if the relevant relief is granted, there is a prospect that there may be cross-claims between the various defendants. Those cross-claims would be brought, as Mr Windsor submitted, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. The Court's power under that section is to order just and equitable contribution between co-tortfeasors. I do not understand what impact the Civil Liability Act would have on such rights, if any, as the first defendant may have under s 5.

127 In supplementary written submissions dated 23 May 2006, Mr Windsor referred to the decision of Studdert J in George v Lifese Steel Erections Pty Ltd [2003] NSWSC 1146. In that case, the plaintiff's proceedings were commenced against the first defendant only, prior to the commencement of the Civil Liability Act. The first defendant filed a cross-claim against a third party. The plaintiff then sought to join that cross-defendant as a defendant and this was done, but after the commencement of the Civil Liability Act. Accordingly, as his Honour explained in paras [131] and following, the plaintiff's proceedings against the first defendant were not, but those against the second defendant were, governed by that Act.

128 At para [140], his Honour recorded a submission "that it would be an unjust consequence if the first defendant could enjoy the benefits of the common law in respect of its cross-claim against the second defendant and yet the plaintiff could only recover against the second defendant under the limited regime imposed by the Civil Liability Act of 2002." It appears from the next paragraph, in which his Honour expressed sympathy for that submission, that it was made by the plaintiff and the first defendant.

129 On the facts of that case, the damages recovered by the plaintiff against the first defendant were about $30,000 greater than those that he recovered against the second defendant: the difference reflecting the different regimes for assessment of non economic loss (compare the summary in para [129] of the damages awarded against the first defendant with the summary in para [158] of the damages awarded against the second defendant).

130 Whilst accepting that the different regimes may produce different outcomes, as between Mr Lopinto on the one hand and the first and third defendants on the other, in each case in relation to Mr Lopinto's treatment as an in-patient at Canterbury Hospital, I remain entirely unconvinced that this will have any relevant impact on such cross-claims as may be brought between them. As I have already said, those cross-claims will be governed by s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. To the extent that both the first and the third defendants are found liable to Mr Lopinto, and on the assumption that there are cross-claims for contribution or indemnity between them, the Court will be required to assess their respective contributions and to structure its awards of damages, both on the claims and on the cross-claims.

131 It may be that some difficulties will arise from the circumstance that, on the hypothesis under consideration, Dr Tornya would have, and the first defendant would not have, the benefit of proportionate liability. But that does not seem to me to be a relevant disadvantage in circumstances where the assessment of their relative contributions to the overall loss will still be capable of adjustment through the cross-claims.

At a glance

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Judgment (222 paragraphs)

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Cases Cited (14)

Cited By (1)