In 2014, the Plaintiff, who was then 46 years old, underwent a routine Pap smear on the recommendation of her general practitioner ("GP") which returned an abnormal result.
The GP referred the Plaintiff to a gynaecologist, the Defendant ("Dr Gayed"), whom she consulted.
Dr Gayed, presumably after reviewing the report of the Pap smear, took a history from the Plaintiff which included that she had experienced one bout of heavy menstrual bleeding. Dr Gayed organised an ultrasound scan of the Plaintiff's pelvis, from which he said he could identify a significantly thickened endometrium.
On 17 July 2014, Dr Gayed recommended to the Plaintiff that she undergo a hysteroscopy with dilation and curette ("D&C"), together with a cervical diathermy.
Based on Dr Gayed's recommendation, the Plaintiff signed a consent form for that procedure, which was performed by Dr Gayed on 18 July 2014 at the Mayo Private Hospital in Taree ("the First Procedure").
As part of the First Procedure, Dr Gayed performed a radical ablation of the Plaintiff's cervix with a diathermy device.
Post-operatively, the Plaintiff did well.
On 25 September 2014, the Plaintiff saw Dr Gayed at his rooms, as had been arranged prior to the First Procedure.
During that consultation, Dr Gayed told the Plaintiff there was nothing to worry about as a result of the Pap smear and recommended to the Plaintiff that she should undergo a further procedure, being an endometrial diathermy to remove what he said was a benign but abnormal endometrial pathology.
Based on that recommendation, the Plaintiff signed a consent form for a second procedure. Importantly, she did not consent, nor did she receive any advice about an ablation of her fibroids. Indeed, there was no discussion between her and Dr Gayed at all concerning fibroids.
On 10 October 2014, the Plaintiff underwent an endometrial ablation with diathermy and ablation of fibroids with diathermy, again at Mayo Private Hospital by Dr Gayed ("the Second Procedure").
Post-operatively there was some complications involving cramping, bleeding, an infection, diarrhoea, and an extremely sore throat, all of which were treated by the Plaintiff's GP and resolved in a reasonably short period of time.
Whilst the Plaintiff said that she never felt "right" about the procedures and had a "strange feeling about them", she got on with her life glad to have been told that the abnormal Pap smear result was nothing to worry about and that any gynaecological issues she may have had at the time, in particular in relation to menopause, had been appropriately treated by Dr Gayed by virtue of the two procedures.
Coincidently, the Plaintiff's mother had also been treated by Dr Gayed and had undergone either the same or very similar procedures, at his hand, at Manning Base Hospital.
In 2018, a Dr Nigel Roberts, the Director of Obstetrics and Gynaecology at Manning Base Hospital, made contact with various patients who had been treated by Dr Gayed at Manning Base Hospital, including the Plaintiff's mother. He asked the Plaintiff's mother to attend his rooms. Consequently, the Plaintiff's mother attended on Dr Roberts in 2018. The Plaintiff went along with her as a support person.
During that discussion, which concerned Dr Gayed's treatment of the Plaintiff's mother, the Plaintiff told Dr Roberts that she had in 2014 been treated and undergone the two procedures by Dr Gayed but that hers had taken place at the private Mayo Hospital at Taree.
Dr Roberts then took it upon himself, with the consent of the Plaintiff, to obtain the clinical notes and other records from Mayo Hospital, which he received, and in September 2018 he created two documents. One was a letter dated 6 September 2018, addressed to the Plaintiff's GP. The other is written in the form of a letter but does not appear to be addressed to anyone. It is either a file note created by Dr Roberts on 6 September 2018, or is the form of a longer version of the letter he wrote on that day to someone. Perhaps it is a draft of what became the letter to the Plaintiff's GP.
Dr Roberts was scathing in his assessment of Dr Gayed. I set out below in full the letter he wrote on 6 September 2018 to the Plaintiff's GP.
Dear Doctor,
I reviewed Melissa in gynaecology clinic today. Melissa had a cervical diathermy, hysteroscopy and curette with Dr Gayed at the Mayo Hospital in 2014. This was followed by an endometrial ablation procedure in which Dr Gayed also claimed to diathermy intramural fibroids.
The curettings from the first procedure showed some "minor gland abnormalities". I have contacted Laverty Pathology to make sure that these abnormalities do not constitute hyperplasia. I do not think that it will but It is best to make sure.
I do not think that Melissa is at risk from this surgery. I do believe that some of the surgery was unnecessary. The treatment to the cervix was based upon a single ?LSIL result. All previous and past Pap smears have been normal. I performed cervical screening today because it was due and have sent a copy of the results to you. The endometrial ablation procedure Melissa had was also unnecessary because Melissa did not have heavy menstrual bleeding. Rather she had a single episode of post-menopausal bleeding. An endometrial ablation is generally considered contraindicated in these circumstances. Finally, there is no evidence that Melissa had fibroids. Melissa had a pelvic ultrasound Just 1 week prior to her initial hysteroscopy at which not fibroids were found.
I will see Melissa in a couple of weeks. By then! will have her Pap smear, a repeat ultrasound and information from Laverty Pathology confirming that the "minor gland abnormalities" described do not constitute hyperplasia.
Yours Sincerely
Nigel Roberts
Director of Obstetrics and Gynaecology
Manning Base Hospital
I also set out the second half of the file note type document Dr Roberts created on the same date.
Assessment
Melissa was only 46 at the time of the hysteroscopy. This is a relatively young age for menopause (as defined by 12 months without menses), and it is not uncommon in these situations to have menses after experiencing an ovulatory cycle. Nevertheless, it is very reasonable to follow-up such an event with a diagnostic sampling of the endometrium.
Melissa was counselled to have a diathermy to the cervix for management of an abnormal Pap smear. The only abnormal Pap smear Melissa has every received was that of a possible low grade epithelial abnormality. On the basis of a record of similar behaviour that this reviewer has found on review of multiple patient files, and the history provided by Melissa herself, it is likely that Dr Gayed did not perform a colposcopy and obtain a colposcopically guided biopsy, I believe he performed an ablation of the cervix on the basis of a possible low grade lesion on Pap smear alone. This is not recommended treatment for low grade abnormalities, and after reviewing multiple similar cases, I believe he performed this for financial advantage. If Dr Gayed believed that the cervix appeared colposcopically normal then the recommended treatment is a repeat Pap smear in 12 months. If Dr Gayed confirmed a high grade lesion on colposcopy then the recommended treatment is an excisional procedure. If Dr Gayed found suspicious colposcopic lesions but the biopsies were normal then a diagnostic (excisional) procedure was indicated.
An endometrial ablation is not indicated for a single episode of postmenopausal bleeding. It is a treatment for persistent dysfunctional uterine bleeding. The endometrial ablation that was performed was not indicated - rather It was contraindicated. Melissa did not have heavy periods, she had one period in the last 2 years. The "minor gland abnormalities" identified on the first curetting specimen is vague. The specimen was reported on by Laverty pathology. They have been contacted and asked to exclude hyperplasia. This has now been confirmed. The slides have been re-examined and have confirmed that there was no hyperplasia. I believe that Dr Gayed performed the endometrial ablation for financial gain.
On the balance of probability I do not believe that Melissa had fibroids. The only existing evidence (two ultrasound scans) suggest that no fibroids were present. I believe that Dr Gayed made this claim for financial advantage. If Dr Gayed did perform an ablation of fibroids on Melissa then he did so without Melissa's consent. Dr Gayed's technique for treatment of fibroids by ablation with monopolar rollerball diathermy is not a standard procedure. It is a technique that results in no tissue for histological confirmation of the benign nature of any lesions removed. The need for careful counselling is all the more important in this situation, and the lack of any such counselling all the more serious.
Recommendations
1. Dr Gayed performed an ablation of the cervix on a woman on the basis of a possible low grade squamous intraepithelial lesion. The procedure was not a recommended procedure for a low grade lesion, and contraindicated if there was a suspicion of a higher grade lesion. In either case Dr Gayed's behaviour represents a standard of care below that reasonably expected of a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists.
2. Dr Gayed performed an endometrial ablation of a woman who had a single episode of postmenopausal bleeding. An endometrial ablation Is inappropriate in this circumstance. From the evidence before me, Dr Gayed's behaviour represents a standard of care below that reasonably expected of a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists.
3. On the balance of probability, I believe that Dr Gayed claimed to perform an ablation of fibroids on Melissa when she did not have fibroids. I believe it is likely that he made this claim for financial advantage. l believe this, in combination with other cases I have reviewed, represents a pattern of behaviour of Medicare fraud. Consideration should be given to reporting this and other cases giving rise to this belief to Medicare Australia. If there was a fibroid present, which Dr Gayed ablated, then he performed this non-standard treatment without Melissa's consent. in either case I believe that Dr Gayed's behaviour falls below the level reasonably expected of a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists.
4. I believe that the Mayo Private Hospital needs to be advised to broaden their review of Dr Gayed's patients. They need to investigate all women in whom Dr Gayed claimed to have ablated fibroids, and all women over the age of 50 who had endometrial ablations with Dr Gayed.
Dr Roberts explained all this to the Plaintiff. In other words, Dr Roberts told the Plaintiff in 2018 that the ablation of the Plaintiff's cervix component of the First Procedure and the entire Second Procedure were not necessary and had no possible therapeutic benefit to her.
The Plaintiff reacted to this news in what I think is a perfectly understandable way. She was shocked, angry, felt violated, and lost trust in not just members of the medical profession, but also in human beings generally.
The Plaintiff, who at the time did have a history of being treated for some anxiety and depression, then commenced a downward spiral where she became more and more withdrawn, isolated from family and friends, lost interest in sex, and otherwise exhibited some of the symptoms of depression. The medical evidence satisfies me that at some point these symptoms became entrenched and she developed a diagnosable adjustment disorder. Quite when that occurred cannot be known, most likely sometime after 6 months after September 2018, probably by mid-2019. The Plaintiff did not seek out or receive any treatment for her symptoms because of her loss of trust in the medical profession.
It seems that around 2018, Dr Gayed's qualities as a doctor became renowned in the community. It is clear from Dr Roberts' records that Dr Roberts considered he had uncovered a pattern of conduct by Dr Gayed that fell far short of acceptable standards. Dr Gayed's activities received attention in the media. Sometime in 2018, Slater and Gordon solicitors were considering launching a class action on behalf of patients not only against Dr Gayed, but also against the Australian Health Practitioner Regulatory Agency, alleging that that agency had fallen short of its obligations to the public, including the Plaintiff, by allowing Dr Gayed to continue to be registered as a medical practitioner when he was, at best, incompetent.
Slater and Gordon sought out women who thought they might fall within a class of people who had received unnecessary surgical procedures at the hands of Dr Gayed, and published on their website a questionnaire, which the Plaintiff completed sometime in late 2018. She did not, however, retain Slater and Gordon as her solicitor, nor seek to obtain any legal advice from them or any other lawyer. Again, this was in part because of the loss of trust caused by Dr Gayed together with the Plaintiff thinking that filling in the questionnaire was sufficient for her to be part of a potential class action.
By the first half of 2020, Slater and Gordon, who had been negotiating with the New South Wales Department of Health through the New South Wales Crown Solicitor's office, obtained agreement for the establishment of a "redress scheme", which made available compensation for patients treated by Dr Gayed, but limited to those patients who were treated by him in the public hospital system.
Slater and Gordon felt that this scheme was a better outcome for such individuals than conducting a class action on their behalf.
Of course, what this meant was the Plaintiff could not participate in the redress scheme that was established as a result of those negotiations. This was because she had been treated in a private hospital rather than the public system.
In October 2020, there was contact between the Plaintiff and a solicitor at Slater and Gordon. It is not clear who instigated it but I think it was likely the solicitors. The Plaintiff was advised that she may be entitled to pursue her rights through an individual court proceeding against Dr Gayed, but that before commencing such proceedings, their viability would need to be assessed by the solicitors and they would need to review her clinical records, develop a case theory, and potentially brief an expert gynaecologist so as to determine that any claim she may have individually against Dr Gayed had reasonable prospects of success.
In November 2020, the Plaintiff was sent various forms by Slater and Gordon to allow that process to commence. She responded in April 2021.
All of this led ultimately to the commencement of the proceedings before me, which were filed on 11 May 2023.
Thus, the proceedings were commenced some nine years after the procedures, about five years after Dr Roberts told the Plaintiff his views, between four and five years after the Plaintiff completed the questionnaire, and within three years of the Plaintiff first receiving legal advice about a potential claim.
[2]
The issues
As may be expected following a recitation of the facts, Dr Gayed does not contest that he firstly, owed a relevant duty to the Plaintiff, and that in performing both procedures he breached that duty of care.
Whilst he contends that the D&C procedure was a reasonable procedure for him to perform, he admits that the cervical ablation component of the procedure was not necessary. He also admits that the entirety of the Second Procedure performed in October 2014 was not necessary. He has not given any evidence before me, nor called any expert on his behalf, to explain why this occurred, or even why it might have occurred.
Dr Roberts' opinion is not on its own. The Plaintiff for the purpose of this litigation has retained and obtained three reports from Dr Anthony Lawrence, an obstetrician and gynaecologist with considerable experience.
His opinion is as follows:
1. The hysteroscopy with D&C component of the First Procedure was probably justified, depending on the actual outcomes of pelvic examination and ultrasound.
2. The ablation of the cervix component of the First Procedure was not necessary. It was an outdated treatment at the time, and in any case should have only been performed following a colposcopy and biopsy-proven cervical intraepithelial disease.
3. Radical ablation of the cervix without histological diagnosis was considered, at the time, inappropriate treatment. It was contraindicated in the circumstances of the Plaintiff.
4. As far as the Second Procedure was concerned, there was not any possible therapeutic benefit to the Plaintiff from a radical cervical diathermy.
5. Endometrial ablation was not indicated following a single episode of postmenopausal bleeding, and in Dr Lawrence's opinion, there was nothing in the Plaintiff's history or symptoms to indicate the need for that procedure.
6. There was no need to perform the Second Procedure at all, there was no need for an endometrium ablation and fibroid ablation, and there was no therapeutic benefit to the Plaintiff at all in undergoing that procedure. The Second Procedure was entirely contraindicated.
At best, Dr Gayed was in 2014 an incompetent doctor. As can be seen from the above opinions of Dr Roberts, there was a strong suggestion, in Dr Roberts's mind at least, that Dr Gayed was deliberately performing unnecessary procedures on patients to obtain payments from the Medicare system. That allegation is not before me. The Plaintiff does not allege fraud on the part of Dr Gayed or that his apparent incompetence is explicable by being motivated by financial gain. In this case, the Plaintiff alleges, and Dr Gayed admits, that he was negligent in recommending both procedures. That admission was as appropriate as it was inevitable. In the circumstances, Dr Gayed's decision to not provide any explanation for his conduct is perhaps understandable.
However, I should record that whatever happened between Dr Gayed and the Plaintiff was, on the evidence before me, not a one-off act of causal negligence. This is clear from Dr Roberts' investigation at the time and is now a matter of public record. I have evidence before me that there has been shown to be a clear pattern in the treatment of women under Dr Gayed's care wherein, if not every woman who walked into his rooms, but certainly a significant number of them received or underwent, at his recommendation, similar unnecessary procedures to that of the Plaintiff.
[3]
The claim
The Plaintiff, by her statement of claim filed 11 May 2023, claims damages against Dr Gayed. Because of the concessions as to duty and breach, the only factual issues in that part of the claim is factual causation and damages.
Such damages are governed in the first instance by the provisions of the Civil Liability Act 2002 (NSW) ("CLA").
The Plaintiff also claims damages under the Common Law, alleging that both procedures, but in particular the Second Procedure, were intentional acts and were done with the intent to cause injury for the purpose of s 3B of the CLA, in that Dr Gayed knew or was reckless as to whether there was no reasonable therapeutic intent to treat, prevent, or ameliorate a disability, pathology, condition, or medical emergency. If s 3B is engaged, the CLA does not apply and the Plaintiff will be entitled to damages assessed under the Common Law.
The practical difference between the aspect of the claim governed by the CLA and the aspect of the claim said to be governed by the Common Law is firstly, the quantification of general damages, some interest on past loss, but more importantly there will be available under the Common Law aggravated and exemplary damages which, of course, are not available under the CLA.
[4]
The issues
The only substantive defence to liability under the CLA aspect of the claim that Dr Gayed puts forward, is that the claim brought by the Plaintiff on 11 May 2023 is barred by operation of the Limitation Act 1969 (NSW) ("Limitation Act"), by reference to s 50D of that Act, because the Plaintiff either knew of her cause of action or that her cause of action was "discoverable" before three years prior to the commencement of those proceedings. Dr Gayed's case is that the Plaintiff had sufficient knowledge about her cause of action against him the moment Dr Roberts advised her in 2018 that, in his opinion, the procedures were not necessary.
Dr Gayed takes issue with that part of the damages case that depends on a finding that the Plaintiff's psychiatric issues are the consequence of Dr Gayed's actions.
There are also a series of factual and legal issues taken by Dr Gayed as to the intentional tort aspect of the claim.
The issues for determination in the order I propose to deal with them are therefore:
1. Under the CLA, has the Plaintiff demonstrated any damages caused by the conduct of Dr Gayed?
2. If so, what are those damages?
3. The quantification of those damages pursuant to the CLA.
4. Were the procedures carried out by Dr Gayed, in all the circumstances, an "intentional tort" not caught by the operation of the CLA? Although for reasons I will explain, the headline "intentional tort" is a misnomer.
5. If so, what is the difference in the outcome between a claim under the CLA and a claim under the Common Law?
6. If exemplary damages are available, ought there be such an award, and if so, in what amount?
7. The statute of limitations defence. There are a number of sub-issues in this topic. Centrally, what was the Plaintiff's subjective knowledge from time to time, and when, for the purpose of s 50D of the Limitation Act, did the claim become "discoverable" by the Plaintiff?
I've decided that it is appropriate to deal with the issues in that order because firstly, it seems to me only right and proper that if the Plaintiff's claim is to be defeated by operation of the statute of limitations that nonetheless, the Plaintiff is entitled to a public finding as to the conduct of Dr Gayed and the consequences that conduct has had on the Plaintiff's life since.
Dr Gayed, whose conduct, as proved to me, fell so far short of acceptable standards as to be shocking, is no longer practicing. I was told that he had retired. This is a good thing because on the uncontested evidence, he was at best a wholly incompetent doctor who has, for reasons I will explain, caused profound and foreseeable damage to the Plaintiff which has significantly impacted, not just her own life, but the lives of her family.
The second reason I have decided to deal with the issues in that order is that it is necessary for there to be full findings of all relevant facts in order to properly consider the Limitation Act defence.
Dealing then with each issue in turn.
[5]
Causation
The Plaintiff alleges that as a result of Dr Gayed's negligence, she suffered the following injuries:
1. Damage to endometrium and uterus;
2. Persistent depressive disorder; and
3. Social anxiety disorder.
The Plaintiff claims that as a result of Dr Gayed's negligence, she continues to suffer from the following disabilities:
1. Persistent depressive disorder;
2. Social anxiety disorder;
3. Loss of libido;
4. Social withdrawal;
5. Feelings of helplessness;
6. Sleep disturbances (nightmares);
7. Diminished appetite; and
8. Diminished short-term memory.
Any physical harm from the actual procedures performed in 2014 can be described as minimal. Of course, the consequences of unnecessary surgical procedures are that the patient's body is injured and, in relation to at least the Second Procedure, the patient undergoes the anxiety and trauma of an operation under general anaesthesia. However, thankfully for the Plaintiff, apart from some short lived post-operative illness and discomfort after the Second Procedure, physically she recovered well.
She described both in her evidence, and also to the psychiatrists retained by both the Plaintiff and Dr Gayed for the purpose of this litigation, that following the procedures in 2014 she had some sort of strange feeling that "something wasn't right", which concerned her. There is no suggestion that this feeling was the manifestation of any medical condition.
Until the Plaintiff saw Dr Roberts in 2018, she was labouring under the belief that the procedures had been medically necessary and had done her some therapeutic good. That belief was as a direct consequence of what Dr Gayed had told her, which of course was wrong.
The Plaintiff's reaction to being told in 2018 by Dr Roberts that the procedures were not necessary, resulted not unsurprisingly in the Plaintiff becoming angry, confused, and distressed. Sleep disturbances commenced, she put on weight, she lost interest in family and friends, and her libido was significantly reduced to the point where her interest and participation in sex with her husband ceased.
Dr Miller, who gave evidence on behalf of the Plaintiff, and Dr Virgona, who gave evidence on behalf of Dr Gayed, are both well qualified and experienced psychiatrists. Both assessed the Plaintiff and prepared reports which were tendered before me. Prior to the hearing they had conferred and prepared an extremely helpful joint report and they gave evidence concurrently before me.
From their combined evidence I make the following findings:
1. The Plaintiff does suffer from a recognised psychiatric illness as a result of being told by Dr Roberts in 2018 that the procedures that the Plaintiff had undergone were not necessary. The disorder is, as Dr Miller diagnoses, a persistent depressive disorder and social anxiety disorder, although Dr Virgona prefers the diagnosis of chronic adjustment disorder.
2. Those psychiatric illnesses are a direct consequence of what Dr Roberts told the Plaintiff in 2018.
3. Both doctors believe that symptoms of depression, or at least some of them, would have commenced at around the time of the Plaintiff's discussions with Dr Roberts in 2018. However, her condition did not reach a diagnostic threshold until sometime thereafter. It is difficult for the doctors to identify precisely when. For a diagnosis to be made, the symptoms must have persisted for a considerable period of time and must have an impact on the Plaintiff's ability to enjoy or participate in daily activities. I think it probable that a medically diagnosable condition manifested sometime in mid-2019.
4. Both doctors consider that some psychiatric disorder was foreseeable as a consequence of a patient being told some years after gynaecological intervention at the recommendation of a trusted gynaecologist that the procedures were not necessary. Dr Miller thinks that the actual disorder and symptom is to be expected, however Dr Virgona thought that the reaction was unusual and moreover contrary to Dr Miller's opinion, that the Plaintiff was a person of normal fortitude, he felt that because of her unusual reaction, that was indicative of abnormal fortitude. He explained this in his evidence by saying that ultimately what was causing the Plaintiff issues was the profound lack of trust she had experienced not just in the particular doctor involved, or in gynaecologists, but in all medical practitioners. He felt the lack of trust on a narrower basis, perhaps just of doctors, would have been a more usual response.
5. In this respect, I prefer Dr Miller's conclusion that the reaction of the Plaintiff was not unusual and that the fact it has now manifested into a psychiatric disorder which can be diagnosed does not mean she is a person of unusually weak fortitude. In any event, both Doctors agree that some form of psychiatric reaction would not be considered unusual in a person of normal fortitude.
6. The doctors agree she needs treatment. They agree that her prognosis, if she is treated with both drug therapy and psychotherapy, is positive to the extent that they both expect that, with treatment, the disorders will resolve within a period of approximately two years. Without treatment, her condition is likely to persist.
7. There is a slight disagreement between the Doctors as to whether the Plaintiff should engage just a psychiatrist, as is Dr Miller's opinion, or a psychiatrist in conjunction with an appropriately qualified psychotherapist, which is Dr Virgona's recommendation. In my view, there was merit in both doctor's positions. Ultimately Dr Miller expressed her opinion as a desire for the Plaintiff to receive the "gold standard" treatment, for reasons which included her lack of trust in the medical profession at the moment and that she felt that any further adverse interactions with the medical profession might be destructive of the Plaintiff's well-being.
8. On balance, I don't see any reason why a gold standard approach should not be taken to the Plaintiff's welfare for the purpose of assessing damages.
[6]
Resolution on causation
I am comfortably satisfied that the particularised injuries and ongoing disabilities of the Plaintiff have been made out and that they are a direct consequence of Dr Gayed's breach of duty.
It is not to the point, nor is it suggested to be to the point, that it was Dr Roberts delivering the shocking news to the Plaintiff in 2018 that was the direct cause of her mental health issues. He was doing the right thing when he uncovered Dr Gayed's wrongdoing, and of course was duty-bound to bring this terrible news to the Plaintiff's attention. The real cause is Dr Gayed's conduct.
I have carefully considered the history that the Plaintiff did have some depression and anxiety prior to the incident, and the fact that she had been taking antidepressants and appeared to have been in the process of being weaned off them at the time she spoke to Dr Roberts. However, both Dr Miller and Dr Virgona accept that the issues she is now suffering from are unrelated to those earlier issues. Perhaps she had a predisposition to depressive illness as a consequence of shock and trauma. However, if that be the position, Dr Gayed must take the Plaintiff as he finds her.
For those reasons, I am satisfied that requisite causation for the purpose of the CLA (s 5D) has been made out. I do not think there is any real difference between legal causation under the CLA and the Common Law. My finding of causation stands whichever legal avenue is available.
[7]
Non-economic loss
The question is to be determined pursuant to Part 2 of the CLA.
The Plaintiff's claim is for non-economic loss as that concept is understood under the CLA, together with past and future out-of-pocket expenses.
Dealing first with non-economic loss.
The Plaintiff contends in reliance on s 17A of the CLA, that I am entitled to pay regard to earlier decisions for the purpose of assisting me to determine what percentage of the "worst case" I assess the Plaintiff's injuries and disabilities.
The Plaintiff has referred me to a decision of Taylor SC DCJ in Waine v Carnival plc (t/as P&O Cruises Australia) [2022] NSWDC 650. In that case the plaintiff was a woman who suffered a miscarriage aboard a cruise liner. As a consequence, she suffered heavy bleeding and discharge but no other ongoing physical injuries and, like the Plaintiff, experienced substantial psychological damage in the years after the miscarriage, albeit her ability to have further babies was not compromised. His Honour found the plaintiff to be 30% of the most extreme case and commented that he would think it would be 38% if there was no prospect of the plaintiff's psychological damage improving.
Dr Gayed submits that such an award would be excessive in light of the following facts:
1. That the Plaintiff continued to work and makes no claim for loss of earning capacity;
2. The physical symptoms the Plaintiff experienced following the Second Procedure were short lived and resolved within days or weeks;
3. The Plaintiff has not sought any treatment for her psychiatric symptoms; and
4. The concurrent psychiatric expert evidence is that the Plaintiff's prospects with treatments is good.
I accept Dr Gayed's submission insofar as the proposition boils down to the contention that if the Plaintiff had sought psychiatric or psychological treatment earlier, her psychiatric conditions would probably have resolved by now. However, the very reason that she has not sought treatment is because of one of the symptoms of her conditions, which symptom is a direct consequence of Dr Gayed's breach of duty. I do not think it can fairly be said that the failure to get treatment to date is unreasonable.
There is a question as to whether the Plaintiff will seek treatment in the future. That is relevant to both my assessment of non-economic loss and also as to future medical expenses.
The Plaintiff has not sought treatment to date, the reason for that is that she feels very uncomfortable "telling her story". However, as was pointed out by Dr Virgona in his evidence, she has now told that story to a number of legal practitioners, to two psychiatrists, and to me in open court. I asked the Plaintiff directly, in light of her experiences with the psychiatrist she has seen for the purpose of this litigation, whether she thought that she would now seek medical help. Her answer was that she thought she probably would. I see no reason not to believe her in that regard. Certainly, all the evidence before me is that if the Plaintiff does seek medical/psychological assistance it will almost certainly result in, if not complete resolution of her symptoms, certainly dramatic improvement, and the Court hopes that she takes that course. I have taken this finding into account when assessing non-economic loss as well as future medical expenses.
The Plaintiff's ongoing disabilities has caused her profound unhappiness. They have substantially impacted on her quality of life for the last six years and will continue to do so for another two years, notwithstanding that she has been able to continue work. In all circumstances I have concluded that the Plaintiff's damages should be assessed at 30% of the most extreme case.
[8]
Past out-of-pocket expenses
There is evidence before me as to a potential Medicare payback and actual expenses paid by the Plaintiff. However, those expenses relate to the entirety of both procedures and, on my finding, it is only the third component of the First Procedure which ought not to have been carried out. Accordingly, I will direct the parties to seek to agree as to past out-of-pocket expenses consistent with that finding.
[9]
Future out-of-pocket expenses
I've already said that I have concluded that the Plaintiff probably will seek out psychiatric or psychological therapy. I've already discussed the debate between the psychiatrists as to the level of treatment and have determined the reasons I have given that I accept Dr Miller's recommendation that it would be best for the Plaintiff and reasonable in the circumstances for her to seek treatment from a psychiatrist alone. I also accept the concurrent medical evidence that such treatment should be necessary for a period of two years. I will direct the parties to seek to agree as to the quantum of future expenses consistent with that finding.
[10]
Intentional act
Section s 3B(1)(a) of the CLA is in the following terms:
3B Civil liability excluded from Act
(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows -
(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act except
It is important to emphasise that s 3B does not apply generally to what are known as Intentional Torts. Rather it applies only to "intentional acts" as defined. To describe s 3B matters as "intentional torts" is liable to lead to error.
Recklessness as to causing injury is insufficient for the purposes of s 3B(1)(a): Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [181]-[183].
Rather, actual subjective intent is required.
Subjective intent can of course be inferred: Irlam v Byrnes [2022] NSWCA 81 at [175].
By its Statement of Claim, the Plaintiff makes the following relevant allegations (my emphasis added):
"52 The radical ablation by diathermy performed by the defendant on 14 July 2014 and the whole of the 10 October 2014 procedure were intentional acts, for the purposes of s3B of the Civil Liability Act 2002 (NSW) (CLA).
53 The radical ablation by diathermy performed by the defendant on 14 July 2014 and the whole of the 10 October 2014 procedure were done with intent to cause injury, for the purposes of s3B of the CLA, in that there was no reasonable therapeutic intent to treat, prevent, or ameliorate a disability, pathological condition or medical emergency.
I have already set out Dr Roberts' initial opinion. It is clear that at the time Dr Roberts formed the view that the reason Dr Gayed conducted what Dr Roberts considered to be unnecessary medical procedures was because he was engaging in a fraud on, amongst others, the Plaintiff and the Medicare system.
However, it needs to be keep kept firmly in mind that is not part of the Plaintiff's case, even though paragraph [53] of the Statement of Claim could possibly be read that way. The Plaintiff's counsel made it clear that no allegation of fraud is relied on. Ultimately, the Plaintiff does not suggest that Dr Gayed actually knew, at the time of the procedures, that what he was doing would have no therapeutic benefit to the Plaintiff.
Rather, the Plaintiff submits that I should infer in all circumstances, including the circumstance that Dr Gayed has chosen not to give evidence to explain his decision, that Dr Gayed was reckless as to whether the procedures could or would have any therapeutic benefit to the Plaintiff. In the sense that he really did not care one way or the other and therefore did not properly turn his mind to this most fundamental question for any doctor contemplating any form of treatment.
Accepting, as I do, that as a matter of fact the Second Procedure could not have and did not have any therapeutic benefit to the Plaintiff and that at least a component of the First Procedure can be described in the same way, I think that the various written consents obtained by Dr Gayed from the Plaintiff are vitiated, which means that Dr Gayed did not have consent of the Plaintiff to carry out the procedures.
However, in the context of a medical procedure, lack of consent does not engage s 3B. The requirement is that it be proved that there be an "intent to cause injury". In the medical context, this requires actual knowledge as to a lack of therapeutic benefit - see for example White v Johnson [2015] NSWCA 18 and Dean v Phung [2012] NSWCA 223 at [30].
It is not part of the Plaintiff's case that Dr Gayed knew at the time of the procedures that there would be no therapeutic benefit to the Plaintiff.
The Plaintiff puts the matter at the level of recklessness.
I am satisfied as a matter of fact that Dr Gayed was reckless as to the question of therapeutic benefit to the Plaintiff.
However, I am also satisfied as a matter of law, that finding is not sufficient to engage the carveout from the CLA provided for in s 3B. Recklessness in this context does not amount to knowledge.
For those reasons, the Plaintiff's claim based on the Common Law must fail.
[11]
Damages under the Common Law
If I am wrong as to liability under the Common Law, I would have assessed the Plaintiff's damages upon the basis of the Common Law without reference to the CLA.
It is difficult for me to assess general damages under the Common Law as I am out of touch with the level of general damages that is available today. I was told by counsel that the Courts of the Australian Capital Territory still regularly make awards as to general damages and that I may find assistance there.
I think in the circumstances, having really not heard full submissions on the topic, I will not make any finding as to the quantum of general damages other than to observe that, self-evidently, they would considerably exceed the damages available to the Plaintiff for non-economic loss under the CLA. In the event the matter goes further, and it be found that I am wrong as to the availability of Common Law damages, the matter can be referred back to me for a short hearing as to the quantification of general damages if the parties are unable to agree.
As to past and future out-of-pocket expenses, the finding under the Common Law would be the same as I have made in relation to the CLA.
Interest would be available on the past component of both general damages and out-of-pocket expenses.
Finally, in all the circumstances, which I think I have spelt out clearly enough in my reasons, I do think that Dr Gayed's attitude towards the Plaintiff's well-being as a medical practitioner fell so far short of the level of skill, and more importantly care, that ought be expected of any doctor, that an award of exemplary damages would be appropriate. I would assess those damages at $50,000.
[12]
The limitation defence
The remaining battleground in this case is the defence based on the Limitation Act.
The acts and omissions that are the subject of the Plaintiff's claim took place between July and October 2014. The Statement of Claim was filed in this matter on 11 May 2023. These two dates raise the question of whether the Plaintiff's claim is statute barred.
[13]
The legislation
Since December 2002, the limitation period applying to a claim for damages for personal injury has been three years from the 'date of discoverability' of the cause of action. Section 50C states:
(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire -
(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
Note -
The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3
(2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times -
(a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased,
(b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment,
(c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative.
(3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.
Section 50C appears in Division 6 of Part 2 of the Act. Section 50A defines the ambit of the division:
(1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.
(2) This Division applies only to causes of action where the act or omission alleged to have resulted in the injury or death with which the claim is concerned occurs on or after the commencement of this Division (as inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002).
(3) This Division does not apply to a cause of action on a claim under the Motor Accidents Compensation Act 1999 or the Motor Accident Injuries Act 2017.
(4) This section extends to a cause of action that -
(a) is a survivor action, or
(b) is a compensation to relatives action.
Section 50D sets out the test for the date on which a cause of action is discoverable:
(1) For the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts -
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
It is important to keep in mind that a limitation defence is a defence proper and is something for which the defendant bears the onus: New South Wales v Gillett [2012] NSWCA 83 ("Gillett") at [26] approving Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at [72]-[74].
There are two questions for determination.
The first is at what point in time the Plaintiff actually subjectively knew of each of the three "facts" identified in s 50D.
I am satisfied that as a matter of fact the Plaintiff knew none of them until her discussion with Dr Roberts in September 2018, but from the time she spoke to Dr Roberts, she knew she had incurred an injury and that the injury was caused, at least in a moral sense, by the fault of Dr Gayed.
This is because Dr Roberts told her that in his opinion the medical procedures, which did involve surgery, were, at least in part, entirely unnecessary.
The Plaintiff therefore knew that she had suffered an injury, being the consequences of the surgery, which was caused by the fault of Dr Gayed, in that she had only undergone the surgery because he had recommended it and had told her it would do her some good.
However, in my judgement the Plaintiff did not know at that time that she had a cause of action available to her to sue Dr Gayed for damages, nor did she know that she had suffered a serious injury. She did not know that she was in the process, as a result of the news delivered to her by Dr Roberts, of developing the psychiatric conditions she ultimately developed.
Based on the medical evidence, I think it is likely that her mental state manifested into a diagnosable condition probably about mid-2019. However, the Plaintiff did not know that fact. She was aware of her own symptoms and had connected them to what Dr Roberts had told her, but she did not appreciate any connection between those symptoms and a medically diagnosable disorder. She also did not know that she had a viable legal action against Dr Gayed, and more importantly even if she did, she did not know it was worth any significant amount of money so as to justify her bringing the case that she ultimately brought.
From the time of the onset of what are the symptoms of her depressive illness (social withdrawal, loss of libido, general feelings of sadness, and lack of trust etc.), she knew about them and she knew that those symptoms were connected to Dr Gayed's conduct, but that does not mean that she knew she had a recognisable psychiatric disorder, let alone that it might sound in damages in a legal claim against Dr Gayed that had reasonable prospects of success.
In my opinion, the Plaintiff only became aware of those facts shortly prior to her commencing these proceedings after she had obtained, with the assistance of her solicitors, a medicolegal report from Dr Miller, which diagnosed her as having a disorder and also linked, in a way that could satisfy the legal test of causation, the cause of that disorder to the news she received from Dr Roberts, which of course ultimately linked the cause back to the conduct of Dr Gayed. Based on that opinion, her solicitors advised her that she had a cause of action with reasonable prospects of success. That cause of action was financially viable once the psychiatric disorder was identified and was linked to Dr Gayed. The fact that she filled in a questionnaire for the purpose of being considered part of a class of people in a yet to be formulated class action is not, in my opinion, inconsistent with that finding.
For those reasons, I find as a matter of fact, that the Plaintiff did not know of the three facts prescribed in s 50D until well within the three years prior to the commencement of these proceedings.
That is not the end of the enquiry. Section 50D also provides that the question of knowledge be determined on what Mr Gayed brands as "the objective date of discoverability".
The tag "objective date of discoverability" comes from the phrase "ought to know" found in s 50D(1), together with the combination of the definition of 'ought to know' in s 50D(2) and the permissive provision in s 50D(3), which entitles the court to take into account certain conduct and statements of the relevant person for the purpose of determining the "all reasonable steps" component of the test.
I was taken at some length to a number of cases in this area by both counsel in their final submissions, both in writing and orally. I found those submissions especially helpful and to a very high standard. Nonetheless, the answer to the question of what is the appropriate legal test to apply in the context of the facts of this case, and what the outcome is upon application of those facts to that legal test is to my mind extremely difficult and obscure.
Dr Gayed has taken me to the decision of Basten JA in Baker-Morrison v New South Wales [2009] NSWCA 35 ("Baker-Morrison") at [58] and what a five-member bench of the Court of Appeal said about it in Gillett at [94]-[97] (Beazley JA) to the following effect.
The ambit of 'all reasonable steps' was considered by Basten JA in Baker-Morrison at [58]:
"In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking "all reasonable steps". (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case)."
His Honour went in at [59] to clarify the phrase "ought to know" in the following way:
"… If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression "ought to know" was identified by reference only to what the putative plaintiff "would" have found out if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only."
The correctness of his Honour's construction of s 50D(2) as set out in Baker-Morrison was directly challenged in Gillett. Beazley JA considered Basten JA's explanation of the operation of s 50D(2) and found no error of construction. At [104] her Honour stated:
"… For the purposes of s50D(2), the court had to determine whether a fact within the meaning of s50D(1) would have been ascertained if a person had taken all reasonable steps to ascertain it before the relevant date. This would involve an inquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfied the court's determination of what were reasonable steps to take in the particular circumstances of a given case."
In Gillett, the State also argued that the knowledge that could be imputed to the plaintiff included knowledge held by his solicitor (but not held by the plaintiff). Relevant to this matter, Beazley JA at [94] stated:
"In my opinion, Basten JA was correct when he stated, at [39] 464, that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. As his Honour pointed out, s 50D(1)(b) involves a relationship of causation between "fault" and injury …"
Her Honour went on at [95] to state:
"There will be many cases where the discoverability of a cause of action will have little to do with moral blameworthiness in the ordinary meaning of that word."
Also, at [97] that:
"… for the purposes of "fault" in s 50D(1)(b), a defendant had to establish that the plaintiff knew the matter was legally actionable. What that involved in a particular case would depend upon the relevant facts and circumstances."
The enquiry as to "ought to know" requires as a starting point the identification of "a particular time". That time is usually three years before the claim was in fact filed. In this matter, Dr Gayed submits, and I accept, that the relevant date for the 'particular time' referred to in s 50D(2) is 11 May 2020.
Dr Gayed also relies and places particular emphasis on what Payne JA said in Best v Rosamond [2020] NSWCA 90 at [43]:
"It may be accepted that "litigious exuberance" is not the standard required by the legislation and that what must be shown a plaintiff must know, or "ought to know" in the case of injury, is the fact that the injury was "sufficiently serious" to justify the bringing of an action on the cause of action. In many ways this submission attacks a straw man. The primary judge addressed the correct test in ss 50C and 50D and did not apply a standard of "litigious exuberance". The correct application of the test is clear in a number of passages, including:
"(1) in the conclusions of the primary judge at [24] that, 'the defendant has made out the requisite fact in s 50D(1)(c). In summary, although he may not actually have known that his injury was sufficiently serious to justify the bringing of an action on the cause of action, that fact would have been ascertained, prior to 17 August 2015, if Mr Best had, as he ought to have done, taken reasonable steps to obtain legal and medical advice and information'; and
(2) in the conclusions of the primary judge at [31], 'in my view, Dr Martin's views on 30 January 2018, whilst they may have differed in degree, were not dissimilar from what he found in January and February 2015. Thus, a medical opinion, had it been obtained prior to 17 August 2015, would have supported a claim'.""
What makes resolution of this issue difficult is that the Plaintiff relies on precisely the same statements from the same cases and contends they lead to the opposite conclusion. The Plaintiff contends that, when focus is placed on the circumstances that the Plaintiff was in, it was only when the Plaintiff got Dr Miller's report that the relevant matters were "discoverable". In other words, the Plaintiff's case is all the s 50D facts were "discoverable" only at the time they were discovered.
Dr Gayed's submission I think boils down to the following propositions, which it is contended can and must be taken from an analysis of the words of the statute, together with the decided cases to which I have referred:
1. Whilst the question of actual knowledge posed by s 50D is subjective and involves findings of fact as to what a particular plaintiff actually knew at the relevant time, the "ought to know" part of the test is entirely objective.
2. What that means is that when determining whether a person ought to have known facts there are two steps involved.
1. The first is for the Court to determine what reasonable steps ought to have been taken by the plaintiff in the circumstances;
2. and two, having determined those reasonable steps, to do no more than ask the question as to whether the plaintiff did or did not take those steps.
In the facts of this case Dr Gayed's submission is that the reasonable steps to be taken were to consult solicitors and obtain advice, and if necessary depending on those solicitors advice, obtain medicolegal opinions so that the solicitors could then provide proper advice as to whether there was a viable case available and the quantum of any such claim. Dr Gayed contends that those reasonable steps ought to have been taken in 2018 after the Plaintiff saw Dr Roberts.
Dr Gayed's submission is that the relevant circumstances are the information that had been given to the Plaintiff by Dr Roberts, together with the fact that the Plaintiff knew that she was at least suffering from symptoms of depression and anxiety, albeit she did not know that there was a legal connection between those symptoms and any of the conduct of Dr Gayed, nor whether those symptoms were capable of being the basis of a claim for compensation so as to allow her to make a judgement as to whether the potential result of any claim against Dr Gayed had involved a sufficiently serious injury to justify the bringing of the proceedings.
Of course, based on what Dr Roberts told her, the Plaintiff already actually knew that Dr Gayed was not just morally blameworthy, but that she had a possible claim against Dr Gayed, this is why she filled in the questionnaire, so the objective enquiry as to that fact is not necessary, but as I have said, she did not know the viability of that claim in terms of legal strength or quantum because she had not connected her depressive symptoms to the conduct of Dr Gayed, nor did she have any idea of the potential quantum of the claim.
A considerate hurdle, or at least complication, that Dr Gayed confronts in his submission is that if the Plaintiff had sought medical and legal advice the day after she spoke to Dr Roberts, the answer would have been that she had not suffered any serious injury. Advice needed to be sought some time after mid-2019.
The Plaintiff, on the other hand, relies firstly on the statement by Beazley JA at [104] of Gillett, which is couched in terms of "the Court's determination of what was reasonable steps to take in the particular circumstances of a given case" and what her Honour also said at [97], "what that involved in a particular case would depend upon the relevant facts and circumstances".
The submission on behalf of the Plaintiff is that the legal test posed by the "ought to know" component of s 50D is not entirely objective. It is not to be judged by what a notional reasonable person might be expected to do. Rather, if there be a notional reasonable person, what that person should have reasonably done must be judged upon the premise that person was in the very same circumstances as the Plaintiff. At the very least what this notional person would do must be judged by reference to what a reasonable person would have done if that person was in the same circumstances as the Plaintiff. Not only does the Plaintiff rely upon those passages I have just referred to from the decided cases, attention is also drawn and significant emphasis placed on s 50D(3), which is in the following terms:
"In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person."
[14]
Resolution
I accept as a matter of fact, that from the time Dr Roberts explained to her what had happened, and upon noticing that she was suffering from symptoms of depression and anxiety, it was open to the Plaintiff to take the steps identified by Dr Gayed, that is to consult a solicitor and obtain proper legal and if necessary medical advice as to the answer to the three questions posed by s 50D.
The Plaintiff did not take those steps. Instead, she filled in a questionnaire so as to express interest to take part in a potential, yet to be defined, class action being contemplated by Slater and Gordon. Having done that, and largely because of her feelings of depression and her unwillingness to confront the circumstances, which on the concurrent medical evidence was in fact caused by the conduct of Dr Gayed, she made a decision to wait and see the outcome of that process. At the conclusion of that process, she did, albeit with some, but irrelevant, delay, consult solicitors who retained Dr Miller, which led to the commencement of these proceedings.
However, to accept that it was open to the Plaintiff to take the steps suggested by Dr Gayed does not answer the statutory question. The statutory question is whether those steps were "all reasonable steps" in the circumstances that the Plaintiff found herself at the time.
It is surprising, but it seems true, despite the extensive judicial effort that has gone into seeking to determine precisely how s 50D is to be construed and how it is to be applied on a case-by-case basis, that little or no attention has been given to s 50D(3).
As a matter of statutory construction, I do think that the only way s 50D(3) can have work to do is an acceptance that it must be relevant to determine the "ought to have known" part of the statutory question, to have regard to the actual conduct of the Plaintiff.
I think that is consistent with the various extracts from the cases which I have set out, all of which emphasise that the outcome of the "ought to know" enquiry in any case will be dependent on a close analysis of all of the facts. In other words, close attention must be paid to the actual circumstances the Plaintiff was in to determine, albeit objectively, what "reasonable steps" are for the purpose of any given case. In that way the Plaintiff's subjective circumstances and what the Plaintiff actually did become relevant to the objective enquiry.
In this case, the Plaintiff's conduct and circumstances includes what she did to express interest in the potential class action and the fact that everything she was doing or not doing was in the context of her depressive illness symptoms which led her to have a tendency to "bury her head in the sand" or not face up to having to explain her story to numerous strangers, albeit professionals. It was that very symptom that was caused by Dr Gayed that was part of her circumstances. Whilst the Plaintiff has not sought in aid the provision of s 52 of the Limitation Act, those symptoms very much form part of her circumstances and are relevant when considering what "reasonable steps" she ought to have taken.
I have concluded, although not without some hesitation, that the "all reasonable steps" required to be taken by the Plaintiff were to do no more than she did when she did it. In so concluding, I have for the purpose of determining what reasonable steps objectively should have been taken by the Plaintiff, judged that question against the special circumstances she found herself in.
Significantly, I do not think it was unreasonable for someone in the circumstances of the Plaintiff to fail to appreciate that she might have a recognisable psychiatric condition and that it might be the consequence of Dr Gayed's conduct any earlier than she did. Without that connection, notwithstanding her symptoms, her decision to not consult solicitors and/or doctors earlier was, to my mind, reasonable. To put that in the context of the legal test, I do not think it would have been reasonable to take those steps prior to when they were taken. It follows that the Plaintiff did not know nor "ought" she have known of the three s 50D facts before a time after 11 May 2020.
For those reasons, I have determined that Dr Gayed's defence based on the provisions of the Limitation Act fails.
[15]
Conclusion
In summary I have concluded:
1. The Defendant is liable to the Plaintiff for breach of the duty prescribed by the CLA.
2. The Plaintiff is entitled to damages assessed pursuant to the CLA.
3. The Plaintiff's claim based on the Common Law fails.
4. The Defendant's defence based on the operation of the Limitations Act fails.
Upon that basis, I make the following orders:
1. Judgment for the Plaintiff in an amount to be agreed or assessed consistent with these reasons.
2. Order the Defendant pay the Plaintiff's costs.
3. Direct the parties to bring in short minutes as to the quantification of the judgment consistent with paragraphs [71] - [73] of these reasons, and if they cannot agree I shall hear further argument.
[16]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 July 2024