McMahon & Anor v South Eastern Sydney Area Health Service & Anor

The Law 21 The plaintiff relies on ss 60C and 60E of the Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded at length in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (Unreported, NSWCA, 7 March 1997); Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; McLean v Sydney Water Corporation [2001] NSWCA 122; Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 and Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207. The onus rests with the applicants. In addition to satisfying the relevant threshold requirements pursuant to sections 60H and 60I, it must be shown that it is just and reasonable to make an order to extend the limitation period. 22 Sections 60C and 60E are contained in subdivision 2 of the Act. Subdivision 2 is headed 'Secondary limitation period'. As stated in section 60A of the Act, the purpose of the subdivision is to provide a procedure for the granting of a maximum 5-year extension of the 3-year limitation period for personal injury cases. It applies only to causes of action that accrue on or after 1 September 1990. Sections 60C and 60E apply to the plaintiffs' cause of action. 23 Section 60C of the Act provides: "60C Ordinary action (including surviving action) (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 24 Section 60E of the Act provides: "60E Matters to be considered by the court (1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay; (b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available; (c) the time at which the injury became known to the plaintiff; (d) the time at which the nature and extent of the injury became known to the plaintiff; (e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission; (f) any conduct of the defendant which induced the plaintiff to delay bringing the action; (g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received; (h) the extent of the plaintiff's injury or loss." 25 In relation to ss 60C and 60E of the Act, Mason P in Council of the City of Sydney v Zegarac at 197 referred to some uncontroversial propositions. They included:

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

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

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

(5) Since s 60C creates a judicial discretion appellate review is restricted by well-known principles. 26 Justice Powell in Council of the City of Sydney v Zegarac at 240-241 stated that three things might be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA's further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do. Secondly, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made, lies on the applicant. 27 The principles concerning prejudice have been considered in Holt v Wynter, by the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at paragraph 119 where their Honours stated that the effect of the High Court's decision in Brisbane South Regional Health Authority v Taylor is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122.

The length and reasons for delay - s 60E(1)(a) 29 The limitation period for the second plaintiff's claim of nervous shock would have expired on 10 March 2002. The limitation period for the first plaintiff's claim for 'wrongful birth' would have expired on 1 October 2001. Proceedings were commenced on 7 March 2003. The motion for an extension of time was filed on 31 July 2003. That is approximately 12 months out of time (from the birth of Thomas). I accept that with the passing of time, there will be presumptive prejudice.

30 Following the birth of Thomas Mrs McMahon asked various doctors involved in the management of her pregnancy to explain how it came about that Thomas had Down syndrome. From the birth of Thomas until about 2002 Mrs McMahon could not bond with her son, as she had never wanted a disabled child. During this time she was resentful, was depressed, did not have any energy and wanted to stay in bed. She was embarrassed about Tommy's condition. Mr and Mrs McMahon's marriage went through a difficult period as Mr McMahon could not understand his wife's attitude towards Thomas. On 20 May 1999, the first plaintiff made an appointment to speak with a solicitor at Legal Aid. The advice from Legal Aid was such that any legal action would be novel. This advice, which referred to emotional and financial costs, discouraged the plaintiffs from taking legal action. The plaintiffs took this to mean that a medical negligence case would be very difficult. The plaintiffs' marriage was in trouble and both parents focus was upon looking after Thomas and their other child. 31 Mr David McMahon initially resisted his wife's desire to pursue a legal claim because he did not believe that there was any case for negligence since both Dr McNally and Dr Fisher explained their positions over the polyhydramnios issue and the ultrasounds. The second reason was that he did not want to 'stir the pot' with the doctors because he felt strongly that we needed their help to care to Tommy and it would get then 'off side' if we were to get involved with legal matters against the hospital. 32 Around June 1999, the time Thomas developed breathing problems and became less responsive, the second plaintiff began drinking heavily and often returned from lunch "under the weather". He was in denial about what was happening. In October 1999 the second plaintiff consulted Warwick Peters, a psychologist and subsequently attended counselling sessions. Thomas was frequently hospitalised and required consistent care such as being put on a ventilator every 3 hours. 33 David McMahon gave evidence as to the winter of 2000 being "one deep long trough" with no end to it. In August 2000, the first plaintiff again fell pregnant. In April 2001 the first plaintiff gave birth to her second son Patrick. Around the middle of 2002, Thomas' seizures were brought under control, he began to be weaned off most of his medications and the hospitalisations and consultations ceased. Mr McMahon gave evidence that at that point he could look towards the future. For the first time he was receptive to his wife again raising the idea of obtaining legal advice. 34 In July 2002 the plaintiffs consulted Carroll & O'Dea Solicitors in respect of possible negligence in the third trimester regarding ultrasounds and the likelihood of less damage to Thomas had he been born by Caesarean section. Although Carroll & O'Dea Solicitors sent records for an expert medical opinion, in July 2002 the plaintiffs sought advice from their current solicitors. On 20 September 2002 met with David Hirsch and Karen Chan of Maurice Blackburn Cashman. At this meeting, the second plaintiff deposes that Mr Hirsch told the plaintiffs that in his opinion the problem was not in the third trimester but in the first trimester when Dr Freedman had done the wrong blood test. On 5 November 2002 the plaintiffs' solicitor received reports from Dr Fisher. Further reports from Drs Gertler and Mann were received in November 2002. 35 It was Maurice Blackburn Cashman who informed the plaintiffs that it was their opinion that the problem was not in the third trimester but in the first trimester when the second defendant had done the wrong blood test. The plaintiffs instructed their solicitors to investigate the case. However in Dr Gertler's 4 November 2002 report at page 3 he states: "Shortly after Thomas' birth Mrs McMahon made enquiries as to how the diagnosis of Down's Syndrome had been missed and found out that the general practitioner had ordered the wrong test. Since that time Mrs McMahon has remained with ongoing feelings of anger. Although she considered taking legal action when she first found out about the wrong test being performed, she decided not to pursue this. She felt too depressed and withdrawn, as well as being overwhelmed with the responsibilities she had towards Thomas and her other children. It is only in the last several months since Thomas' condition has stabilized and the seizures brought under control, that Mrs McMahon has again addressed the issue of taking legal action." 36 In the light of this information Mrs McMahon was cross-examined. She denied that she told Dr Gertler that she considered taking legal action when she first found out that the wrong test had been performed. When pressed Mrs McMahon said "I told him, that was in August 1999, that led me to make further inquiries and that is why I saw Dr Freedman and I tried to see Dr Kirk but I also told him that my emphasis was on the third trimester because I was focused" (t25, 33-36). It was put to Mrs McMahon that when she told Dr Gertler that she was considering taking legal action it was in relation to the performance of the wrong test (t27, 11-14). Mrs McMahon replied, "No, the legal action was in regard to the third trimester. The alarm bells didn't go off, the alarm bells went off with me in the third trimester" (t27, 15-17). When Mrs McMahon was afforded the opportunity to review the paragraph from Dr Gertler's 4 November 2002 report reproduced above, she stated, "Yes, I understand what you are getting at but I think you have got it wrong. You have to remember I saw Dr Gerges [the witness meant Dr Gertler] when I was emotional I was extremely distressed and it was a psychiatric visit" (t27, 52-54). Mrs McMahon then went on to state that it was in August 1999, she was aware or believed that: firstly, Dr Freedman had ordered the wrong test; secondly, Dr Freedman had not ordered all the tests she had asked him to order; thirdly, there existed the Intellectual Disability Rights Services which could provide further help if consulted; fourthly, she knew of at least two firms of solicitors recommended by Legal Aid in relation to medical negligence (t28-29, 39-3). When asked if she was aware that solicitors were available to go and see if she chose to do so, Mrs McMahon replied, "The answer to that question is yes, I was aware back in May 1999 but not in August 1999, I was aware back in May 1999 but not in August 1999, I was aware after I received the [Legal Aid] letter and after I received the letter I pretty much forgot about it and if I could just add, I certainly had a lot on my plate" (t29, 29-33). 37 After photocopying her records at Dr Freedman's surgery, Mrs McMahon went to see Dr Kirk on 15 September 1999. At that time, Mrs McMahon asked Dr Kirk why she had not been sent a copy of the letter dated 7 September 1999. Dr Kirk replied that it would not have made any difference to the outcome if Mrs McMahon had received the letter. 38 After further advice and more discussions in March 2003, the plaintiffs instructed their solicitors to initiate legal proceedings against Drs Freedman and Kirk. The statement of claim was later amended to replace Dr Kirk with the South Eastern Sydney Area Health Service who was responsible for the actions of Dr Kirk. 39 As Sully J relevantly observed [at paragraph 14] in Willis v Dr Ganesha Thambipillay & Ors [2003] NSWSC 553 (24 June 2003), until the plaintiffs in that case had first sought legal advice: "…they had not given any serious consideration to their respective entitlements to recover in an action at law damages for nervous shock; they had not received any proper professional advice in that regard; and they did not have, otherwise, any real grasp of what possibilities might be available to them in that behalf." 40 Sully J then went on to say [at paragraphs 14-15]:

"…The realisation on 27 August 1997 that the baby's condition was so serious as to justify immediate transfer to Sydney, and the growing realisation thereafter about just how serious that condition was; about the catastrophic procedure necessary to save the baby's life; and then, day after day, year in and year out, about how gross and permanent were their baby's deficits, must have been, as both Mr. and Mrs. Willis described, an utterly shattering experience, coping with which was in effect an all-consuming pre-occupation.

Having what seems to me to be a sensible, practical and humane regard to the entirety of that situation, I am satisfied that relevant delay has been adequately explained." 41 In Tori v Greater Murray Health Service (2002) Aust Torts Reports 81-651; [2002] NSWSC 186 a claim for nervous shock arising from the birth of the plaintiff's son, I stated [at paragraph 10] that: "The main reason for delay is that the plaintiffs set about providing for the needs and demands of their son Jack and could not cope with the additional stress of taking legal action." 42 To adopt the words of Sully J, having what seems to me to be a sensible, practical and humane regard to the entirety of the situation which includes the plaintiffs' emotional state, the constant and unrelenting needs of Thomas which from 1999 to 2002 included regular hospitalisation and the difficult state of the plaintiffs' marriage I am satisfied that the plaintiffs' explanation for not seeking legal advice in respect of any possible claim for their own injuries until after Thomas' medical condition had improved in mid July 2002 is reasonable. Extent to which delay caused evidence to be lost - s 60E(1)(b) 43 There is no evidence that the failure of the plaintiffs to commence the proceedings within the limitation period has meant that any evidence has been lost. The defendants continue to practice in Sydney and the medical records of Drs Freedman and Kirk are in existence and have been obtained and reviewed by the plaintiffs' solicitors.

The time at which the injury became known to plaintiff - s 60E(1)(c) 44 On 10 March 1999, the first plaintiff gave birth to her son Thomas. The second plaintiff was present at the birth. At paragraph 17 of his affidavit he states: "I was shocked when I first saw him. His head was large, swollen and bruised. His eyes looked strange. He did not look human. We were told that everything was ok and that he was just traumatised from the birth." 45 On 11 March 1999, the plaintiffs were informed that Thomas had Down syndrome. It was not until the plaintiffs consulted their current solicitors and the relevant medical reports and inquiries had been made that they came to understand the negligence of the first and second defendants. Before their current solicitors recommended they see Dr Gertler, neither of the plaintiffs had seen a psychiatrist. Dr Gertler's 4 November 2002 report confirmed that both plaintiffs suffered from nervous shock.

Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(1)(d), (e) and (h) 46 Despite the assurances of Dr Gerges, on 27 August 1998 the first plaintiff saw Dr Freedman who referred them to Dr Kirk who performed the alleged incorrect blood test. 47 According to Dr Gertler, the first plaintiff had suffered nervous shock and continued to suffer emotional damage at the time of assessment on 29 October 2002. It was Dr Gertler's opinion that the first plaintiff had not come to terms with Thomas's condition. The first plaintiff's prognosis, even with counselling remains guarded. According to Dr Gertler, the second plaintiff had suffered nervous shock but his emotional condition had improved by the time of assessment on 29 October 2002. 48 As previously stated it was not until the plaintiffs consulted their current solicitors and the relevant medical reports and inquiries had been made that they came to understand that they has a case that the first and second defendants were allegedly negligent in relation to a test conducted in the first trimester of pregnancy.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(1)(f) 49 There is no conduct by the defendants in evidence that induced the plaintiff to delay bringing the action.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(1)(g) 50 On 20 May 1999 the first plaintiff consulted a Legal Aid solicitor who discouraged the instigation of any claim as it would be fiercely costed and costly. In August Mrs McMahon became aware that the wrong test may have been performed in the first trimester of her pregnancy. Given her 13 September 1999 discussion with Dr Kirk (see paragraph 12 of this judgment) and her ongoing depressive state, Mrs McMahon's decision not to persevere with a claim at this stage is understandable. On 26 July 2002 the plaintiffs met with Carroll & O'Dea Solicitors who arranged for an expert medical report. In August 2002, the first plaintiff sent some background documents to Maurice Blackburn Cashman. On 20 September 2002 the plaintiffs met with Karen Chan and David Hirsch of Maurice Blackburn Cashman, their current solicitors. 51 In the year between the first consultation and the filing of the notice of motion, expert reports were sought from Drs Linda Mann, Eric Fisher, Ann Turner and Robert Gertler. In addition, the discharge summaries (exhibited to the affidavit of Karen Jennifer Chan sworn 20 October 2003 [KJC3-19]) from St George, Sydney Children's and John Hunter Hospitals illuminate the extent of time and care that Thomas required between November 1999 and August 2002. 52 The second defendant was aware of the existence of these proceedings from 12 March 2003 when he was served with a statement of claim. On 17 April 2003 the statement of claim was served on Dr Kirk. On 7 March 2003 the statement of claim was filed in this Court. This motion was filed 31 July 2003.

Just and reasonable 53 I turn now to consider whether it is just and reasonable to extend the limitation period. The applicant bears an evidentiary and persuasive onus, which, in the absence of concession, requires material to be adduced that demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiffs' cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (Unreported, NSWSC, Badgery-Parker J, 1 May 1997); Ortado v Bailey (Unreported, NSWSC, Badgery-Parker J, 1 May 1997); Lewis v Bailey (Unreported, NSWSC, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485, and Fitzgerald v Bankstown City Council (Unreported, NSWCA, 6 November 1995). 54 The first defendant did not suggest (as did the second defendant) that there was no real case to be advanced. The second defendant submitted that there was no real case to advance because by the time he received the letter from Dr Kirk on 10 October 1999 it was too late to do anything. Further, the second defendant submitted that the plaintiffs could not establish that if the correct test had been carried out, it would have been positive, that the plaintiff would have elected to have the amniocentesis test and this in turn would have proved to be positive. The plaintiffs do not have to prove every issue in this type of application. It is important to remember that it was because of a correspondence mix up that the first plaintiff's lost the opportunity of having the correct test performed. She cannot be barred from her claim because the inability to that obtain evidence stems from the alleged negligence of the defendants. 55 In any event, the report of Dr Linda Mann dated 20 November 2002 annexes an extract of an article that refers that uptake of serum screening by patients ranged from 67-92%. The amniocentesis rate in those pregnancies identified at increased risk was around 80% and about 90% of parents elected to have the pregnancy terminated following a confirmed diagnosis of Down syndrome. (Wald). Further, Dr Fisher in his report dated 31 October 2002 stated that he was of the opinion that a general practitioner in Sydney in August 1998, exercising reasonable care could reasonably have been expected to know that maternal serum screening for Down syndrome required a "triple test" and not simply an alphafoetoprotein (AFP) test. It is my view that there is a real case to advance against both defendants.

56 The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Taylor. Section 31(2) of that Act is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in Giudice and Commonwealth of Australia v McLean (1997) 41 NSWLR 389.

57 The ultimate test in any such an application is whether a fair trial can be conducted not withstanding any delay (see Wynter). The plaintiffs' decision not to seek legal advice earlier with a view to taking legal proceedings was not taken for forensic advantage but rather because the second plaintiff resisted suing as he felt the assistance of the hospital would be of paramount importance in respect of future care for Thomas. Moreover, the plaintiffs' marriage was placed under considerable strain and their main focus was the significant task of caring for Thomas who had been through a traumatic period of recurring hospitalisation. The second defendant submitted that he would be prejudiced because the conversations which took place between him and Mrs McMahon on 8 and 19 September 1998 were critical. The first plaintiff has given her version of events. It is not known whether the second defendant has a recollection of these conversations and has in his possession his notes of the consultations or whether he is aware of his usual practice in 1998 in relation to ordering tests for Down syndrome. However, in these circumstances I am not satisfied that this means that the second defendant will not obtain a fair trial. 58 I am satisfied that in the circumstances it is just and reasonable to extend the limitation periods pursuant to ss 60C and E of the Act.

59 Costs are discretionary. In Wynter, Sheller JA at paras 147-148 stated that, in relation to costs, ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The defendant's opposition was not wholly unreasonable. The plaintiffs are to pay the defendants' costs. 60 The court orders that:

(1) Leave is granted to the first plaintiff to extend the limitation period pursuant to ss 60C and E of the Act from 1 October 2001 up to and including 7 March 2003.

(2) Leave is granted to the second plaintiff to extend the limitation period pursuant to ss 60C and E of the Act from 10 March 2002 up to and including 7 March 2003.

(3) The plaintiffs are to pay the defendants' costs as agreed or assessed. **********

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