Plaintiff v Defendant

2 The plaintiff was born on 24 August 1970. On 8 February 1996 she gave birth to her first child, a daughter, at the Mercy Hospital. In the absence of her obstetrician, Mr C Targett, she was attended by Mr M Somerville. The baby was delivered by a mid forceps (Keillands) delivery, and an episiotomy was carried out to facilitate the birth.

3 After the plaintiff was discharged home, she experienced pain and difficulty in her bowel motions. When she attended Mr Targett for a post-natal review, he advised her that she had an anal fissure, and referred her to the defendant. She saw the defendant on 26 April 1997. The defendant advised her that she required surgery for treatment of the anal fissure. Accordingly, on 2 May 1996, she was admitted to the John Fawkner Hospital. The defendant performed an examination under anaesthetic, and a lateral sphincterotomy to divide part of the internal anal sphincter. The plaintiff claims that the defendant carried out that operation without first ensuring that the plaintiff had not, during the delivery of her child, sustained damage to the external anal sphincter, resulting in a silent or unrecognised injury to that sphincter.

4 Following the procedure, the plaintiff's bowel problems became worse. She began to experience difficulties controlling her bowel movements. When she had the urge to have a motion she was frequently unable to reach the toilet in time, resulting in her soiling her clothes. At the same time the plaintiff was suffering from depression and anxiety attacks, for which her general practitioner, Dr Whelan, prescribed antidepressant medication. As a result of the plaintiff's deteriorating bowel problems, Dr Whelan referred her to the defendant, whom she saw on 29 April 1997. The defendant told her that her problem was a normal consequence of the operation undertaken by him, and that it would eventually sort itself out. He advised her to do some pelvic floor exercises. Subsequent to that consultation, Dr Whelan referred the plaintiff to Dr Marcus Carey, a gynaecologist. The plaintiff saw Dr Carey on 19 May 1997. Dr Carey told the plaintiff that her problems were beyond his expertise, and he referred her to Mr Tjandra, a colorectal surgeon.

5 The plaintiff attended Mr Tjandra on 3 June 1997. Mr Tjandra undertook some tests, and showed the plaintiff scans, explaining to the plaintiff that she had been "torn from 11 to 2 o'clock". The plaintiff understood Mr Tjandra to say that Mr Somerville had cut through her anal sphincter when cutting the episiotomy, and then had ripped the area when he used the forceps to deliver her daughter. Mr Tjandra advised that the plaintiff that she should have a further repair procedure to the anal sphincter.

6 Accordingly, on 6 June 1997 Mr Tjandra performed an operation at the Epworth Hospital to repair the plaintiff's internal and external sphincters. However, despite that surgery the plaintiff's bowel problems did not improve. During the same period the plaintiff continued to suffer from depression. Since the birth and the surgery conducted by the defendant, she had begun to experience nightmares and flashbacks relating to incidents which had occurred during her pre-teen years. Dr Whelan continued to prescribe antidepressant medication for the plaintiff's psychological condition.

7 In the meantime, the plaintiff consulted Messrs Slater & Gordon, Solicitors, on 3 September 1997, concerning her potential claim. The plaintiff, in her affidavit, states that she believed, at that time, that her condition related to the manner of the delivery performed by Dr Somerville. In mid-1998 the plaintiff became pregnant with her second child. She understood that Slater and Gordon were still then investigating her claim. Dr Whelan referred the plaintiff to Dr Bhardwaj, an obstetrician, to manage her second birth. On Dr Bhardwaj's advice, she ceased to use antidepressants during her pregnancy. At that time she was still having at least two bowel accidents per day. She was in a distraught emotional condition, and contemplated suicide. She began suffering from panic attacks and anxiety. As a result, Dr Bhardwaj organised the plaintiff's admission to the Mother-Baby Unit at Northpark Private Hospital on 16 December 1998. The plaintiff remained an inpatient at that hospital until 8 January 1999. She was under the care of Dr Mack, a psychiatrist, whom she continued to attend after her discharge from hospital.

8 The plaintiff's second child, a son, was born on 30 April 1999 via elective caesarean section. She recommenced taking antidepressants. Her panic attacks continued, and her bowel motions appeared to get worse.

9 On 27 June 2000 the plaintiff and her husband attended an appointment with Slater and Gordon. The solicitors advised her that they were of the opinion that she did not have a case in respect of her bowel problem. The plaintiff was shocked and distraught. When she returned home, she locked herself in her garage. Dr Whelan was called to attend upon her. On 2 October 2000 she was taken by ambulance to the casualty department of the Northern Area Mental Health Service of the Northern Hospital, after attempting suicide by an overdose of medication. Since that time the plaintiff has had further suicide attempts.

10 In 2003 the plaintiff consulted Professor Lobowsky, a colorectal surgeon, in Sydney. Professor Lobowsky advised the plaintiff that she might undergo a further operation, using a graft of a muscle from her leg. She subsequently consulted Professor Lobowsky again, but decided not to undertake the surgery, as it was still in an experimental stage. In the meantime the plaintiff had separated from her husband. She was undergoing considerable stress. In June 2004 she presented at the casualty department of the Northern Area Mental Health Service of the Northern Hospital contemplating suicide. She was referred to the Northern Crisis Assessment and Treatment Team for further treatment and management.

11 In the meantime, in early 2004, the plaintiff consulted Mr Bui, a colorectal surgeon. An ultrasound demonstrated a defect in the anterior external anal sphincter. Accordingly, in October 2004 Mr Bui carried out a sphincter repair at the Austin Hospital.

12 In May 2005 the plaintiff consulted her current solicitors, Arnold Thomas & Becker, as a result of an advertisement which she saw on television relating to the services of those solicitors. Her solicitor, Ms Shortall, organised for her to consult Mr Phillip Douglas, a colorectal surgeon, on 9 August 2006. The plaintiff states that during that attendance she first became aware that her faecal incontinence had been caused by negligence of the defendant in the surgical procedure undertaken by him, and not, as she had previously thought, by any negligence of Mr Somerville in the delivery of her first child.

13 The plaintiff still remains severely restricted in her day to day activities as a result of her bowel problems. She has no control over her bowel actions unless she takes Imodium medication, and regulates her diet. Notwithstanding that regime, she still has about four accidents a week. She is in receipt of a single parent pension, and lives in rented accommodation. Apart from the medication and diet control, she is not having any form of treatment for her faecal incontinence. She has been advised that St Vincent's Hospital can undertake a surgical procedure which is still in its experimental stage, and which might help her. However, the surgery is very expensive, and she would need to be hospitalised for four weeks.

14 The plaintiff's claim is based on an alleged breach by the defendant of his duty of care in undertaking the sphincterotomy on 2 May 1996. Mr Tobin SC, who appeared with Ms M Bylhouwer for the plaintiff, opened the application before me on the basis that the main allegations by the plaintiff were: first, that the defendant should not have undertaken the surgical procedure at a time so close to the birth of her child; secondly, that the length of the incision made by the defendant in the course of the operation was excessive; and, thirdly, that the defendant failed to give the plaintiff any sufficient warning of the risk of permanent incontinence arising out of the surgery to be performed by him.

15 The plaintiff's claim in negligence is based substantially, if not wholly, on the report of Mr Douglas dated 18 December 2006. Mr Douglas had available the reports of a number of previous treating doctors, including Mr Tjandra and Mr Bui. He noted that when Mr Tjandra saw the plaintiff in June 1997, endo-rectal ultrasound had revealed a scar anterially affecting mainly the external sphincter from 11 o'clock to 2 o'clock. There was also considerable scarring in the right posterolateral aspect of the anal canal affecting mainly the internal sphincter. Mr Douglas expressed the view that there was clinical evidence, and physiological and ultrasound evidence, that the internal and external anal sphincters had been damaged during the delivery of the plaintiff's baby on 8 February 1996. He noted that the sphincterotomy carried out by the defendant, to the internal sphincter, was a lateral sphincterotomy, and would not therefore have caused the damage to the anterior external sphincter. He also stated that the scarring to the right posterolateral aspect of the anal canal, affecting mainly the internal sphincter, was unlikely to have resulted from childbirth or the use of forceps, but was more probably caused by the internal anal sphincterotomy carried out by the defendant. Mr Douglas stated that damage to the internal anal sphincter tends to lead to "passive" faecal incontinence, whereas damage to the external anal sphincter tends to lead to urge incontinence. Mr Douglas believed that the damage to the internal anal sphincter had contributed to the plaintiff's incontinence, but it was compounded by the previously unrecognised injury to the anterior external sphincter, which had been caused by childbirth.

16 Mr Douglas further stated that endo-rectal ultrasound is not routinely performed before undertaking a sphincterotomy. However, in some circumstances it should be carried out. If there is any suspicion that there had been any other sphincter injury, then ultrasound, and anal physiological testing, should be considered before sphincterotomy. If an ultrasound had been undertaken with the plaintiff, then a reasonable surgeon would not have proceeded to sphincterotomy, in view of the injury to the external anal sphincter. Mr Douglas stated that the defendant should have been mindful of the possibility of a silent (undetected) sphincter injury after the forceps delivery. Faecal incontinence following a sphincterotomy for a fissure is more likely to occur in women who have undergone vaginal deliveries. Accordingly, many surgeons would be reluctant to proceed to sphincterotomy for a fissure in young females, especially in the early post-partum period. Any advice to perform a sphincterotomy for an anal fissure should be associated with a warning to the patient about the risk of faecal incontinence resulting from that operation. Most colorectal surgeons would encourage a patient with a fissure in the post-partum period, especially after a forceps delivery and an episiotomy, to persist with non-operative treatment for many months. If a sphincterotomy was to be performed in such a situation, a reasonable colorectal surgeon would perform the most minimal of sphincterotomies, and the length of the incision in the internal sphincter would be no greater than the anal fissure.

17 The plaintiff's claim is governed by Part 2A of the Limitation of Actions Act 1958. That Part was introduced by the Wrongs and Limitation of Actions (Insurance Reform) Act 2003. Section 27B(1) provides that Part 2A applies to a cause of action for damages, which relate to the death of or personal injury to a person, regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise. The period of limitation for such an action is prescribed by s 27D(1), which provides:

"(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire -

(a) the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;

(b) the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned."

18 Section 27F defines when a cause of action is "discoverable" in the following terms:

"(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts -

(a) the fact that the death or personal injury concerned has occurred;

(b) the fact that the death or personal injury was caused by the fault of the defendant;

(c) in the case of personal injury, the fact that the personal 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 date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact."

19 Sections 27K and 27L entitle a person, who claims to have a cause of action to which Part 2A of the Act applies, to apply to the Court for an extension of the period of limitation which is applicable to that cause of action.

20 As I have stated, this is an application by the plaintiff, on summons, for a declaration that her claim is not statute barred under s 27D, or, alternatively, an order extending the period of limitation, applicable to that cause of action, to a period after the date on which these proceedings were issued.

21 In seeking a declaration that the proceeding is not statute barred, the plaintiff, in effect, is invoking the procedure under r 47.04 of the Supreme Court Rules to have an issue or question tried before the trial of the proceeding. Ordinarily, such a procedure is invoked with a degree of caution.[1] However, the procedure which is being used by the parties in this case is well supported by precedent. In Donnelly v State of Victoria & Ors,[2] O'Bryan J made a declaration that a proceeding, which the plaintiff intended to bring, would not be statute barred, and also made an order, under s 23A of the Limitation of Actions Act, extending the period within which that action may be commenced. That decision was followed in Hickey v Women's and Children's Health Care Network.[3] There, Hedigan J, after referring to the decision in Donnelly, accepted that such a procedure was appropriate. His Honour held that the proceeding was not issued after the expiration of the limitation period, and made an order striking out the plea in the defence that it was statute barred. Those decisions were followed by Byrne J in Falcon v McCann.[4] In that case, his Honour declared that the proceeding was barred by s 5 of the Limitation of Actions Act 1958, and made an order, under s 23A, extending the period within which an action based on the cause of action alleged in the statement of claim might be brought. I also note that the same procedure was utilised by the parties in Clark v Stingel[5]. Finally, as a variant on that procedure, in Callan v Healthscope Limited,[6] Williams J made an order striking out a plea, in a defence, that the plaintiff's claim was statute barred, by way of preliminary application.

22 The present proceeding was issued eleven years after the surgical procedure conducted by the defendant. It would only be necessary to extend the period of limitation applicable to the plaintiff's cause of action, if it had already expired when the writ was issued. Both issues involve a common question, namely, when the plaintiff knew, or ought to have known, of the facts necessary for her cause of action. The determination of the questions whether the proceeding is statute barred, and whether the period of limitation should be extended, may significantly affect the disposition of the case. The procedure, which has been adopted by the parties, is not only well supported by authority, but is also sensible and practical. It enables the parties to resolve an important issue, which might determine the fate of the litigation, at an early stage. It is a procedure which has now been used in this Court for some time, and has proven to be workable. Accordingly, I consider that it is an appropriate procedure to adopt in the present case.

23 The plaintiff's summons raises two primary questions, namely, whether the proceeding is statute barred, and, if so, whether an order should be made extending the period within which the proceeding might be brought. Logically, it is necessary first to determine the question whether the proceeding is barred under s 27D(1).

24 It is accepted on behalf of the plaintiff that she knew that she had suffered personal injury, and that that injury was sufficiently serious to justify bringing an action, more than three years before the date of issue of the proceedings. Thus, the plaintiff's application for a declaration depends on the question whether the plaintiff knew, or ought to have known, more than three years before the date on which she issued the proceedings, that her injury was caused by the "fault" of the defendant.

25 In turn that question raises two issues. First, there was debate as to the meaning of the word "fault". Mr Tobin, on behalf of the plaintiff, submitted that, in order that the plaintiff knew (or ought to have known) that her injury was caused by the "fault" of the defendant, it is necessary that the plaintiff knew (or ought to have known) that the injury was caused by an act or omission of the defendant, for which the defendant was culpably responsible. On the other hand, Mr O'Meara, who appeared with Ms G Crafti for the defendant, submitted that the word "fault", in s 27F(1)(b), means "act or omission", so that it is sufficient that the plaintiff knew (or ought to have known) that her injury was caused by an act or omission of the defendant.

26 The second issue, relating to the claim for a declaration, concerns the state of the plaintiff's knowledge before May 2004, and particularly after she had consulted Mr Tjandra in June 1997. Mr Tobin submitted that, until the plaintiff consulted Mr Douglas in 2006, she did not know that the operation carried out by the defendant in 1996 had caused or contributed to her incontinence. In any event, Mr Tobin submitted that, until the plaintiff was examined by Mr Douglas, she did not know that it was inappropriate for the defendant to have carried out a sphincterotomy, that the defendant made an incision which was too large in the circumstances, and that the defendant ought to have warned her of the risk of incontinence associated with that procedure. In response, Mr O'Meara submitted that, at least by the time that the plaintiff had seen Mr Tjandra in 1997, she knew that, after the operation performed by the defendant, she had damage to both her sphincter muscles, and that that damage was a cause of her incontinence.

27 The first question, then, concerns the meaning of "fault" in s 27F(1)(b). Mr Tobin submitted that, in its ordinary meaning, the word "fault" involves the concept of culpability. He submitted that, under s 27F(1)(b), in order that a plaintiff know that his or her injury was caused by the "fault" of the defendant, the plaintiff must have sufficient knowledge which would, objectively, justify a conclusion that the defendant may have been culpably responsible for that injury. Mr Tobin submitted that that conclusion derives from the plain ordinary meaning of the word "fault". He drew my attention to a number of other sections in the Act, which fix the limitation period by reference to the date of the "act or omission" which has been alleged to have caused the injury to the plaintiff. Thus, for example, s 27D(1)(b) provides that an action shall not be brought after the period of 12 years from the date of the "act or omission", which is alleged to have resulted in the death or personal injury with which the action is concerned. Further, Mr Tobin submitted that it is particularly significant that Part 2A was introduced just three years after the decision of the Court of Appeal in Mazzeo v Caleandro Guastalegname & Co.[7] That case was concerned with s 5(1A)(b) of the Act, which fixes a limitation period of three years from the date upon which the plaintiff first knows that the injuries, which are the basis of the claim, were "caused by the act or omission" of some person. The Court of Appeal held that, under that provision, the limitation period commenced when the plaintiff had knowledge of the causal connection between the injury and the act or omission which had caused it, and that there was no further requirement that the plaintiff knew of the wrongful nature of the defendant's act or omission. Mr Tobin submitted that, in that state of the law, it is evident that the legislature intentionally employed the word "fault", instead of the phrase "act or omission", in s 27F(1)(b), in order that it connote knowledge by the plaintiff of some culpability on the part of the defendant.

28 In response, Mr O'Meara submitted that, on its proper construction, "fault", in s 27F(1)(b), means "act or omission". In support of that submission, he referred to the definitions of "fault" in ss 28B, 28LB and 28M of the Wrongs Act 1958. Those definitions, which are contained in Parts VB, VBA and VC of that Act, were introduced by the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002. Part 2A was introduced into the Limitation of Actions Act by the Wrongs and Limitations of Actions Acts (Insurance Reform) Act 2003. Those two amending Acts were part of a suite of legislation introduced at that time to reform and rationalise the law relating to recovery of damages for personal injuries. Accordingly, Mr O'Meara submitted, "fault" in s 27F(1)(b) of the Limitation of Actions Act should be given the meaning contained in the definition in ss 28B, 28LB and 28N of the Wrongs Act.

29 Mr O'Meara submitted that if "fault" were construed as "act or omission", s 27F would be logical and workable. In that way, s 27F(1) would focus the inquiry on the knowledge of the claimant of the facts, first, that he or she has sustained injury, secondly, that that injury was caused by the act or omission of a particular defendant, and, thirdly, that the extent of the injury was sufficiently serious to justify bringing an action for damages. On the other hand, if "fault" is construed in terms of culpability, s 27F would be unworkable and uncertain. It would depend on the vagaries of the judgment of the claimant as to whether he or she considered that the injury was caused by the culpability of a particular defendant. In a professional negligence claim, the relevant knowledge of the claimant as to that matter would depend on the views of which forensic expert was consulted by that claimant. Thus, in a claim for medical negligence, the knowledge of the plaintiff, as postulated by s 27F(1)(b), may vary according to the views of the medico-legal experts consulted from time to time on behalf of the plaintiff.

30 Mr O'Meara further submitted that s 27F should not be construed on its own, but as part of a legislative scheme, of which ss 27I, J, K and L all form a part. Section 27I operates to extend the period of limitation in respect of an injured person who is a minor; s 27J operates to suspend the period of limitation in respect of a person who is under a legal incapacity; and s 27K and s 27L entitle a person, whose claim is otherwise out of time, to apply for an extension of the period of limitation. Thus, Mr O'Meara submitted, it is not the intention of s 27(F)(1)(b) to protect a potential claimant who might be ignorant of his or her rights. Rather, that function is fulfilled by the other provisions to which I have just referred.

31 There is little authority on the meaning of "fault" in s 27F(1)(b). In Dark v Country Fire Authority,[8] his Honour Judge Stott of the County Court construed "fault" to mean "act or omission". His Honour reached that conclusion by reference to the definition of "fault" in ss 28B, 28LB and 28N of the Wrongs Act. He considered that "in the interests of consistency" the same meaning should be ascribed to "fault" in s 27F(1)(b). In his subsequent decision in Ilardi v Forster,[9] Judge Stott applied his previous decision in Dark. In Caven & Anor v Women's and Children's Health,[10] in the absence of any argument as to the meaning of "fault", I accepted and adopted Judge Stott's construction of "fault" for the purposes of that case.

32 Having had the benefit of argument in this proceeding, I have come to the conclusion that the construction of "fault" in s 27F(1)(b), contended for by the plaintiff, is correct. The meaning of "fault" is plain and unambiguous, both in ordinary parlance, and in its context in Part 2A of the Act. Its usual everyday meaning connotes culpability or blameworthiness. In particular, where injury or damage is said to be the result of the "fault" of another person, ordinarily such an accusation would involve the attribution of a degree of culpability or blame on behalf of the person who caused the damage. That meaning is consistent with the dictionary definitions of the word. Thus, the Macquarie Dictionary definition of "fault" includes:

33 The context in which "fault" is used in s 27F(1)(b) supports the view that it is intended to have its usual meaning. The use of the word "fault" in s 27F(1)(b) is in marked contrast to the use of the phrase "act or omission" in two other provisions in Part 2A. Section 27D(1), to which I have referred, prescribes a "long stop" limitation period of 12 years from the date of the "act or omission" which is alleged to have resulted in death or injury. Section 27D(2) uses the same phrase, by providing that that section does not apply to a cause of action founded on an injury to a person who is under a disability at the date of the "act or omission" which is alleged to have resulted in the personal injury. A similar formula is used in s 27E(1). The use of the phrase "act or omission" in those provisions supports the conclusion that the word "fault" in s 27F(1)(b) was deliberately selected to convey a meaning different to that expressed by that phrase.

34 That point is reinforced by the contrast between s 27F(1)(b) and s 5(1A). The latter section applies to a claim for damages for injuries consisting of a "disease or disorder". It provides that such an action may be brought within three years from the date on which the person first knows that he or she has suffered those injuries and that "those injuries were caused by the act or omission of some person". Until the decision of the Court of Appeal in Mazzeo v Caleandro Guastalegname & Co,[11] there were a number of authorities, commencing with the decision of Beach J in Perry v Royal Women's Hospital,[12] in which it was held that the phrase "act or omission" meant "negligent act or omission", so that the period of limitation did not commence until three years after the plaintiff first knew that the injury was caused by a wrongful or negligent act or omission by a defendant.[13] That line of authority was overruled by the Court of Appeal in Mazzeo. There, the Court held that, under s 5(1A), there is no requirement that a plaintiff must have known that the prospective defendant's act or omission was wrongful or negligent. Part 2A was introduced into the Act less than three years after that decision. It is significant that, in the state of the law which then existed, Parliament did not select the phrase "act or omission" in s 27F(1)(b), but, rather, employed the word "fault". The clear implication is that, in s 27F(1)(b), the legislature intended that "fault" bear its ordinary and natural meaning, namely, an act or omission to which some culpability or blame attaches.

35 Contrary to the submission of Mr O'Meara, I do not consider that the construction of s 27F(1)(b), contended for by the plaintiff, would have an unworkable, or anomalous, effect which could not have been contemplated by Parliament. Such a construction would not render the determination of the applicable period of limitation as being dependent upon any idiosyncratic subjective notion of "fault" by an individual plaintiff. As Mr O'Meara correctly observed in argument, the word "fault" is a common concept. In everyday discourse, it is not unusual to attribute an accident, some damage, harm or injury, to the "fault" of another. In its ordinary non-legal sense, the suggestion that an injury or accident has been caused by the "fault" of another means that the injury or damage was caused by an act, which the other person should not have done, or should have done differently, or by an omission by that person to carry out an act, which should have been done. Certainly, that meaning involves certain normative concepts of what should or should not have been done. However, I do not consider that s 27F(1)(b) requires that the plaintiff form a legal judgment as to the "fault" of a defendant in the tortious sense of the word. Rather, I consider that Parliament intended that the period of limitation is to commence when the plaintiff knew (or ought to have known), inter alia, of the fact that the death or personal injury, the subject of the claim, was caused by an act of a person, which should not have been carried out, or which should have been done differently, or by an omission by another person to carry out an act, which should have been done. In such a case, should a plaintiff have formed such a view, it may not be necessary for the plaintiff to have expressly entertained any notion of "fault"; rather, what the sub-section fixes on is the knowledge of the plaintiff (or the circumstance that the plaintiff should have known) that the death or injury resulted from an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done.

36 Such a construction of s 27F(1)(b) is consonant with s 27F(1)(c). That provision states that the cause of action is discoverable when the plaintiff knows (or ought to know) that the injury is "sufficiently serious to justify the bringing of an action on the cause of action". On any view, under that provision the commencement of the period of limitation is dependent upon the formation of a value judgment by the plaintiff, namely, as to whether the injury was of such seriousness as to "justify" the issue of proceedings. Thus, it is not alien to the scheme or structure of s 27F(1), that, under sub-paragraph (b), the commencement of the period of limitation should be dependent upon a normative assessment by the plaintiff as to whether an act or omission of a defendant involved culpability or blameworthiness on the part of the defendant.

37 The construction of "fault" contended for by the plaintiff would not leave the commencement of a period of limitation open-ended. Section 27D(1) provides that, at the latest, the period of limitation is to commence twelve years from the date of the act or omission alleged to have resulted in the death or personal injury complained of. The period is to be shorter if, during that time, the cause of action was "discoverable", as defined in s 27F. In that way, Part 2A is designed to work differently to s 5(1A). Under the latter section, the period of limitation may be open-ended, dependent on the knowledge of the injured party of the cause of the injury. By contrast, under s 27D, some finality is provided by the "long-stop" provision. As a "trade off", it is understandable that s 27F would provide for a shorter period of time, only if the plaintiff knew all the relevant factors necessary for the formulation of a cause of action, and not just the fact of the injury and its cause. Whatever the juridical basis of a claim for damages for personal injury, ordinarily such a claim must involve some element of "fault". It is understandable, in those circumstances, that the legislature would envisage that the cause of action should only be known, when a critical part of it is apparent to a plaintiff, namely an element of "fault" on behalf of the defendant.

38 In this connection, both sides drew my attention to the second reading speech of the Premier in introducing the Wrongs and Limitation of Actions Acts (Insurance Reform) Bill.[14]. I do not consider that that speech materially assists in the construction of s 27F(1)(b). However, I do note that the Premier stated that, in a sense, the concept of "discoverability" employed in Part 2A was intended to be more generous than the current limitation periods. Further, in his speech, the Premier emphasised that the Bill was intended to strike a fair balance, particularly between insurance companies and claimants. In this sense, as I have stated, s 27F(1), as construed in the manner contended for by the plaintiff, would be seen to strike such a balance. Under that construction, while s 27D(1)(a) might be more favourable to a claimant than s 5(1A), on the other hand s 27D(1)(b) is more restrictive than s 5(1A). Thus, the construction contended for by the plaintiff, and which I accept, is consistent with the perceived intention of the legislation to be derived from its terms, and also as articulated in the second reading speech.

39 Contrary to the submissions of Mr O'Meara, I do not consider that it is appropriate to import, into Part 2A, the definition of "fault" contained in ss 28B, 28LB, and 28M of the Wrongs Act. Although, in certain circumstances - when two sets of legislation are said to be "in pari materia" - the meaning of a particular term in one statute may be used in interpreting another,[15] such a technique of statutory construction must be used with caution.[16] In the three provisions of the Wrongs Act to which Mr O'Meara referred, "fault" is defined to "include"[17] an act or omission. When the relevant provisions of the Wrongs Act, in which "fault" is used, are examined, it is understandable that the definitions, in Parts VB, VBA and VBC, should be inclusive. Part VB is concerned with awards of damages, which, ex hypothesi, are made upon an admission or judgment of fault. The inclusive definition of "fault" in s 28B is designed to ensure that the restrictions relating to damages, in Part VB, cover liabilities, not only arising from acts, but also from omissions. A similar point may be made about the definition of "fault" in Part VBA, which involves the setting of thresholds in respect of the recovery of damages for non-economic loss. Again, those thresholds presuppose a liability for the injury, which, under Part VBA, is required to be "significant" (as therein defined). Part VC is concerned with structured settlements. The definition of "fault" in s 28M, as an inclusive definition, is designed to ensure that s 28N applies, not only to settlement of liabilities arising from acts, but also liabilities arising from omissions.

40 Thus, when the relevant provisions of the Wrongs Act are carefully analysed, it can be seen that the definition of "fault", contained in ss 27B, 27LM and 27M, is intentionally inclusive. Where the word "fault" is used in those parts of the Act, it presupposes the ordinary legal meaning of that term, namely legal fault which has resulted, or might result, in liability for damages. For those reasons, I do not consider that the definition of "fault" in the Wrongs Act lends support to the proposition that that term, in s 27F(1)(b), of the Limitation of Actions Act, should be construed as meaning "act or omission" as contended on behalf of the defendant.

41 Thus, for the foregoing reasons, I consider that "fault" should be given its ordinary everyday meaning in s 27F(1)(b). In order that an action be discoverable by a plaintiff, the plaintiff must know (or ought to know) (inter alia) that the death or personal injury, which is the subject of the plaintiff's cause of action, was caused by an action which the defendant ought not to have performed, or should have performed differently, or by an omission by the defendant to perform an act which the defendant ought to have performed. Notwithstanding the cogent submissions by Mr O'Meara, I am not persuaded that such a construction, which accords with the plain meaning of "fault", was not intended by Parliament.

42 For the purpose of completion, I note that, after the conclusion of submissions, Mr Tobin forwarded to me a copy of the report of the panel, chaired by Justice Ipp, which had been commissioned to review the law of negligence. The report is entitled "Review of the Law of Negligence". Mr Tobin drew my attention to clauses 6.19, 6.27, and 6.40 of that report. There, the panel recommended that the date of "discoverability" should be the date upon which the plaintiff knew or ought to have known that personal injury or death: had occurred; was attributable to "negligent conduct" of the defendant; and was sufficiently significant to warrant bringing proceedings. In response, Mr O'Meara filed written submissions, arguing that the report does not support the construction relied on by the plaintiff.

43 In my view, Mr O'Meara is correct that the report does not assist in the construction of the Act. Indeed, documents such as reports of committees should be used with considerable caution, notwithstanding s 35(b) of the Interpretation of Legislation Act 1984. It is rare that the recommendation of a committee is implemented, in its entirety, by legislation. Changes, sometimes subtle, are introduced which can have a significant effect on the meaning of the legislation ultimately enacted. In my view, that caution clearly applies in the case of Part 2A of the Limitation of Actions Act. It is true that, as one element of discoverability, the panel report suggested that a proceeding be "discoverable" when the plaintiff knew or ought to have known that the personal injury or death "was attributable to negligent conduct of the defendant". However, the structure of the proposed legislation, recommended by the panel, was different in an important respect. The report recommended that time should run from the date of discoverability, with a long-stop period of 12 years. However, it recommended that only the long-stop period should be open to extension, and that that period could not be extended longer than three years from the date of discoverability. By contrast, under s 27K, the period of limitation which is open to extension is either of the periods under s 27D(1), not just the long-stop period of twelve years.

44 Thus, the scheme proposed by Justice Ipp's committee was similar to, but materially different from, the scheme ultimately enacted in Part 2A. Accordingly, in construing s 27F(1)(b), little assistance can be gained by reference to the report.

45 It is necessary for me to examine, in some detail, the evidence of the plaintiff as to her state of knowledge relating to the cause of her condition. The plaintiff's evidence in chief is contained in her affidavit, and she was cross-examined by Mr O'Meara. In her affidavit, the plaintiff set out the history of her treatment and her condition. She stated that when she first attended her current solicitor, Ms Shortall, in May 2005, she still believed that her bowel condition was caused by the negligence of Mr Somerville in carrying out the episiotomy in such a manner that it cut the anal sphincter, and in undertaking the forceps delivery in such a manner as to damage both sphincters. Accordingly, she understood that her solicitor was investigating a claim against Mr Somerville. Subsequently, she attended Mr Douglas on 9 August 2006. During that attendance she first became aware of the fact that her faecal incontinence was caused by negligence relating to the surgical procedure undertaken by the defendant, and not, as previously thought, by any negligence of Mr Somerville in the performance of the delivery.

46 It is necessary to set out in some detail the evidence given by the plaintiff in the course of her cross-examination by Mr O'Meara. The plaintiff stated that she consulted the defendant, in April 1996, because she had substantial pain in passing motions. The defendant rectified that problem, but after the operation, the plaintiff had a different problem, namely her incontinence. Nevertheless, she thought that the incontinence was a consequence of the conduct of Mr Somerville. The plaintiff had read books which said that bowel incontinence could happen after childbirth. She thought that Mr Somerville had damaged her, and that the defendant had performed an operation to rectify the problem.

47 Mr O'Meara then cross-examined the plaintiff about her consultation with Mr Tjandra in June 1997. She stated that, in that consultation, Mr Tjandra told her that her internal sphincter had been torn during the birth of her child, and her external sphincter was damaged when the sphincterotomy was carried out. The plaintiff stated that she understood that if she had not been torn during childbirth, the other damage would not have occurred, and that was why she thought that Mr Somerville was responsible for her problem. The plaintiff agreed that Mr Tjandra showed her a diagram depicting one area of damage in the 11 o'clock to 2 o'clock region, and the other area of damage in the 2 o'clock to 5 o'clock region. She agreed that Mr Tjandra described, using that diagram, where she had been damaged during childbirth, and where she had been damaged as a result of the sphincterotomy. She also agreed that, at that time, Mr Tjandra suggested that she should see a lawyer. The plaintiff stated that her husband, Steve, was present at that consultation. She said that at that time she herself was not in any fit condition to speak to anyone. However, her husband Steve insisted that they consult Slater & Gordon. The plaintiff said that Mr Tjandra did not say that anyone was at fault, and that he did not "point the finger" at anyone. She said:

"I was a secretary, I don't understand the system. People just show me pictures, no-one explains anything to you ... I didn't understand this whole sphincter thing until I went to see Mr Douglas who actually took the time to sit down and explain everything that has happened to me from start to finish. I didn't understand where one coincides with the other, you know, he was the only person that actually made me understand my condition. So when Mr Tjandra was showing me the damage, all I could see is this perfect woman's body and my body, apart from that I didn't see much else or hear much else."[18]

48 Shortly after, in answer to further questions about the consultation with Mr Tjandra, the plaintiff stated:

"He tried to explain to me why I had incontinence and he said to me, the reason you have incontinence is because your internal and external sphincter have been damaged. Yes, that he said, but I didn't understand what that meant in my, to why I had the damage. So he tried to explain to me that when one is damaged and the other is damaged, then it causes bowel incontinence, but at no time did I, you know, as soon as he mentioned the word 'law suit" or anything else, I assumed that it was the childbirth."[19]

49 The plaintiff further stated that, at the behest of her husband, they consulted Slater & Gordon. At that time she was miserable. When she saw Slater & Gordon she was "attacking" Mr Somerville (that is, blaming him). She attended an initial consultation with Ms Irene Lawson (now Judge Lawson of the County Court), a partner of Slater & Gordon. After that she had little to do with the solicitors. Her husband Steve handled all the correspondence with that firm. She was in a distressed emotional state. She was still soiling her clothing, and was taking many drugs for her psychological condition, such as Sinequan, Aropax and Zanax. She remained of the view that her bowel incontinence had been caused by Mr Somerville carrying out the episiotomy incorrectly. She said "I was living in hell". The only time that her husband told her about the investigations by the solicitors was when they needed money, or if she needed to attend an appointment with a surgeon organised by the solicitors. At that time, she was consulting her general practitioner, Dr Whelan, regularly because of her psychological problems. Dr Whelan never said that her problem was caused by one or other of her doctors. She said that, until she saw Mr Douglas, she was of the view that the problem had been caused by Mr Somerville, and that the defendant had tried to rectify it.

50 The plaintiff stated that when her solicitor told her, in August 2000, that she did not have a claim, she nearly attempted suicide. Dr Whelan had to attend and sedate her. The plaintiff's husband was handling the claim. In cross-examination, she was shown a series of correspondence to her from Slater & Gordon in the period from August 2000 to November 2001, but she could not remember any consultation with Slater & Gordon, other than the initial conference, and the occasion in August 2000, when she was advised that she did not have an action. She said that the only other telephone calls she had with that firm were with Ms Lawson's assistant, Sasha, in respect of the payment of legal costs.

51 The plaintiff stated that when she saw Professor Lobowski in Sydney in 2003, he explained to her what had happened to her sphincter and her nerves. At that time, she believed she had been the victim of medical negligence. There was some mention of medical negligence in her consultation with Professor Lobowski. However, he did not tell the plaintiff anything about the conduct of her surgeons "and whose fault it was"[20]. Similarly, in 2004, Mr Bui explained to her that he was going to try to repair the damage, but he did not tell the plaintiff "anything about any of the surgeons and whose fault it was ... he never pointed fingers, or he never, ever discussed damages or negligence as well".[21]

52 In cross-examination, the plaintiff said that it was Mr Douglas who first made her understand her condition. She said:

"... yes he explained that Mr Somerville did tear the internal sphincter but that would have slowly healed itself or that - not healed itself but the fissure would have been okay if it was left alone ... he explained it all to me and I remember walking out of there and I'm thinking, you know, I've been blaming Mr Somerville all these years ... but I didn't understand that this man - it was Mr Vellar that ripped the external sphincter which then turned my life around. I didn't understand it."[22]

53 The plaintiff said that Mr Douglas might have shown her the same diagram as was drawn by Mr Tjandra in 1997, but "this time I comprehended it because psychologically I was stronger". She then said:

"... he (Mr Douglas) didn't point fingers. He didn't say to me, it was, you know? He didn't blame Mr Vellar. He just explained it to me, to show what happened during the birth, what happened during the sphincterotomy, and then what has happened in between to my nerves and my muscles. I don't have any nerve or any muscle. So he, and he said to me that after the, when a sphincterotomy is done after childbirth, it has high risk of a woman having faecal incontinence, and hearing him, and I said to him 'So, it doesn't happen'. I think I asked him if it happens during childbirth. ... I can't recall the whole conversation, but he said to me that the faecal incontinence would have been caused after the sphincterotomy was, tore into the external sphincter. So that's when I realised that the faecal incontinence wasn't because of the birth."[23]

54 The plaintiff, in answer to a further question, stated that when she saw Mr Tjandra in 1997 she understood she had the two tears which "wasn't right", but that she did not understand "that one coincided with the other and that's why I have the faecal incontinence".[24] Finally, in re-examination, the plaintiff stated that she only stopped believing that the problem had been caused by Mr Somerville, when Mr Douglas told her that the bowel incontinence would not have happened as a result of the forceps delivery. Before that, she considered that Mr Somerville was the author of her problems. When she saw Ms Shortall in 2005, she told Ms Shortall that she wanted Mr Somerville to pay. Before she saw Mr Douglas, no-one had told her that the defendant's procedure was the cause of her being incontinent.[25]

55 Finally, in this context, I should refer to the evidence of Ms Shortall. She stated that when she first took instructions (in 2005), the plaintiff did not indicate that her belief was that her incapacity had been caused by the defendant. The plaintiff concentrated on the episiotomy, and she had a strong belief that that was the cause of her problems. The plaintiff remained of that belief, until Ms Shortall received the report of Mr Douglas, implicating the defendant. Ms Shortall stated that she had told the plaintiff that she (Ms Shortall) was investigating the conduct of both Mr Somerville and the defendant, but the plaintiff "did constantly go back to Professor Somerville". The plaintiff "seemed to have a fairly strong view that she felt it was Professor Somerville that had caused all her problems".[26]

56 I have set out the plaintiff's evidence in some detail because, on a strict reading of it, it is not entirely consistent. However, in observing the plaintiff in the witness box, and reading the transcript of her evidence, it has been important to bear in mind a number of important factors which affected the plaintiff's evidence. First and foremost, the plaintiff is a relatively unsophisticated person, who, some years later, has been called upon to try to recall the substance of medical advice given to her about her condition. For any lay person, the plaintiff's condition would have some complexity. However, at the time at which it was explained to the plaintiff, particularly in the late 1990s, the plaintiff was a person who was undergoing significant physical and psychological stress. Dr Whelan, in his report, stated that she had suffered significant post-partum depression. In May 1996 he referred her to a psychiatrist, Dr Katz, under whose care she remained until early 1997. Her medical condition was, of its very nature, distressing and humiliating. It is understandable that the plaintiff may not, at this time removed, be able to accurately recall all she was told about her condition, let alone comprehend it at the time at which she received that advice.

57 When observing the plaintiff in the witness box, I formed the distinct impression that the plaintiff was an honest witness, who was doing her best to recall what she had been told, and what she had learnt, about her condition over the years. Indeed, Mr O'Meara did not attack the credit of the plaintiff, and, in my view, correctly so. My impression as to the credibility of the plaintiff as a witness was confirmed by a re-reading of the transcript of her evidence.

58 While not all of the evidence of the plaintiff is readily capable of being reconciled, in my view it is clear that, until she saw Mr Douglas in August 2006, the plaintiff had not been told that the defendant should not have performed the operation undertaken by him in May 1996. Nor had she been told that there was anything about that operation, or preceding it, which the defendant should, or should not, have done. Certainly, before that time she understood that there was "damage" to both her sphincters. Indeed, in this respect her current understanding as to which doctor was responsible for the "damage" to a particular sphincter seems to be erroneous. The plaintiff still believes that her internal sphincter was damaged during childbirth, and her external sphincter was cut by the defendant. The converse appears to be the case. However, whatever the present view of the plaintiff about her injury, it is clear that, until she saw Mr Douglas in August 2006, she had no understanding, or knowledge, that the defendant should not have undertaken the sphincterotomy, or that he should or should not have done something differently in relation to it. My impression of the plaintiff's evidence is reinforced by the evidence of Ms Shortall, that until the plaintiff was examined by Mr Douglas, she had a strong view that it was Mr Somerville who had caused all of her problems. For those reasons, I consider that the plaintiff has established that it was not until August 2006 that she understood that her injury was the result of the "fault" of the defendant, for the purposes of s 27F(1)(b) of the Limitation of Actions Act.

59 Although, given my construction of "fault" in s 27F(1)(b), it might not be necessary to do so, I have also reached the conclusion that the plaintiff did not know, until August 2006, that the surgery undertaken by the defendant in May 1996 had caused, or contributed to, her incontinence.

60 In reality, the question as to when the plaintiff knew that her injury was caused by the "fault" (as I have defined it) of the defendant, is not entirely discrete from the factual question as to when the plaintiff knew that the incision made by the defendant in the sphincterotomy caused or contributed to her injury. As I have found, the plaintiff, until August 2006, considered that the conduct by Mr Somerville of the birth of her first child was "to blame" for her injury. She considered that that was when she sustained the injury which caused her incontinence, and that she should not have sustained that injury, if Mr Somerville had conducted the birth properly. She remained fixed in that view until she was examined by Mr Douglas in August 2006. In my view, if the plaintiff had understood, hitherto, that the operation performed by the defendant was "responsible" (in a causative sense) for her injury, either in whole or in part, then I would expect that the plaintiff would also have considered that there had been something "wrong" about the performance of the operation by the defendant. It is clear that the plaintiff considered that Mr Somerville had been to blame for her condition, because she attributed her condition, causally, to the childbirth. Similarly, having listened to the evidence of the plaintiff, I consider that if she had entertained the notion, before 2006, that the sphincterotomy performed by the defendant had played some role in causing or contributing to her injury, she would have held a similar view that the defendant was, in some way, "to blame" for her condition. The fact that she did not entertain that belief until August 2006 militates strongly in favour of the proposition that the plaintiff did not know, until that date, that the incision made by the defendant in the sphincterotomy had caused or contributed to her incontinence.

61 Further, in listening to, and reading, the plaintiff's evidence, I am of the view that, notwithstanding some of the inconsistencies in that evidence, the preponderance of her evidence was such that she did not know or understand that the sphincterotomy had played any causative role in her injury, until she received the advice of Professor Douglas in August 2006. It is true that, in the course of cross-examination relating to the advice given to her in 1997 by Mr Tjandra, the plaintiff did say that Mr Tjandra "tried to explain to me that when one is damaged and the other is damaged then it causes bowel incontinence ... ".[27] However, the plaintiff had already stated that it was not until she saw Mr Douglas that she understood how "one coincides with the other"[28]. Later, towards the end of her cross-examination, she said that it was not until she saw Mr Douglas that she understood how the damage to the internal sphincter coincided with the damage to the external sphincter, and that that was why she suffered from faecal incontinence.[29] When I listened to the plaintiff's evidence, I gained the distinct impression that it was only when the plaintiff saw Mr Douglas, that it was conveyed to her that her incontinence had occurred as a consequence of the incision made in the sphincterotomy co-acting with the earlier (undetected) damage to the external sphincter.

62 Accordingly, I am satisfied that it was not until August 2006 that the plaintiff knew that her injury was caused or contributed to by the operation performed by the defendant in May 1996.

63 The next question, in relation to s 27F(1)(b), is whether the plaintiff ought to have known either of the two facts of which I have the plaintiff was ignorant until August 2006, namely, that her injury was caused or contributed to by the sphincterotomy undertaken by the defendant, and that her injury was caused by the "fault" of the defendant.

64 Section 27F(2) provides:

"(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact."

65 It is common ground that in determining what the plaintiff ought to have known at a particular time, I should take into account the plaintiff's actual knowledge, capacity and circumstances. In that respect Mr O'Meara drew my attention to the judgment of the High Court in Boughey v R[30]. That case concerned the statutory definition of "culpable homicide" in the Tasmanian Criminal Code. Section 157(1) provided that "culpable homicide" was murder if committed (inter alia) by means of an unlawful act or omission, which the defendant knew "or ought to have known" to be likely to cause death. The Court held that, in determining that question, the issue was what the particular accused, "with his or her actual knowledge and capacity", ought to have known. While that authority concerns legislation significantly different to s 27F of the Limitation of Actions Act, nonetheless that approach is, in my view, relevant and applicable to the provision under consideration. Section 27F is concerned with issues of discoverability by a person who has suffered a personal injury. It would be entirely artificial, and indeed well nigh intellectually impossible, to assess what a person "ought to know", without taking into account such subjective factors as the age, characteristics, the education, and physical and psychological state of the plaintiff.

66 In the present case, as I have found the facts, the plaintiff was not told, until 2006, that it was the operation performed by the defendant which played a role in causing her condition, and that the defendant either should not have performed that operation, or should have done it differently. In 1997 the plaintiff consulted Slater & Gordon, solicitors. By that time she had already undergone corrective surgery by Mr Tjandra. She left her claim in the hands of her solicitors for three years. There is no suggestion that the plaintiff's then solicitors did not carry out their task appropriately. Nonetheless, on the investigations undertaken by them, they advised the plaintiff, in August 2000, that in their view the plaintiff's claim was not "viable". The plaintiff, in her evidence, was adamant that it was then that Slater & Gordon ceased to act on her behalf. In fact the correspondence which was tendered in evidence indicates that Slater & Gordon, after giving that advice, continued to investigate the plaintiff's claim until November 2001. The plaintiff denies knowing of that circumstance. Certainly, in October 2000, she had made a serious attempt to commit suicide. It would seem that her psychological state was, to say the least, fragile. Her evidence, which was not contradicted, was that it was her husband who had always been responsible for communicating with Slater & Gordon and giving them instructions. In any event, it is clear that Slater & Gordon, after making further investigations, concluded, in November 2001, that the plaintiff should not pursue her claim. Advice had been received from counsel that "to issue proceedings in this case would be very risky". In a letter addressed to the plaintiff (but which I find was read not by her but by her husband), Slater & Gordon expressed agreement with counsel's view. Pausing there, in my view, it could not be said, as at 2001, that the plaintiff had failed to take reasonable steps to ascertain the cause of her condition, or to ascertain her rights against her medical practitioner.

67 The plaintiff did not consult any further solicitors until 2005. However, she did seek further medical assistance in the meantime, first from Professor Lobowsky, and then from Mr Bui. I accept her evidence that neither doctor told her, during that time, that the operation performed by the defendant had caused or contributed to her condition, or that the defendant had done anything wrong or inappropriate in respect of the performance by him of that operation. In light of the advice by Slater & Gordon, in 2000, that her potential claim was without merit, and given that she did not learn anything in the interim which might have alerted her to a potential claim, it is not surprising, or unreasonable, that she did not seek further legal advice until 2005. I therefore do not consider that the plaintiff failed to take all reasonable steps to ascertain the two facts which I find she was advised by Mr Douglas in August 2006.

68 Accordingly, I find that the plaintiff neither knew, nor ought to have known, before August 2006, that the operation performed by the defendant caused or contributed to her condition. Further, I find that the plaintiff did not know, nor ought she to have known, before August 2006, that the defendant should not have carried out the sphincterotomy, or that he should have done something differently in relation to that operation, as she now asserts in her statement of claim. Accordingly, the plaintiff's cause of action was not "discoverable" pursuant to s 27F of the Limitation of Actions Act 1958 before August 2006. As this proceeding was issued on 31 May 2007, it was issued within three years from the date on which the cause of action was discoverable by the plaintiff. It was issued less than twelve years from the act or omission, of the defendant, which the plaintiff alleges has resulted in her injury. It follows that the plaintiff's cause of action is not barred by s 27D(1) of the Limitation of Actions Act. The plaintiff is therefore entitled to the declaration sought in her summons.

Extension of time - Sections 27K, 27L

69 In light of the conclusions which I have reached, it is not necessary for me to consider the alternative application by the plaintiff for an extension of time within which to bring her proceeding. Nonetheless, having heard argument in relation to that matter, it is desirable that I make findings, and express my conclusions in respect of that application.

70 Section 27K(1) provides that a person claiming to have a cause of action, to which Part 2A applies, may apply to the court for an extension of the period of limitation applicable to that cause of action. Section 27K(2)(b) provides that the court may make an order for the extension of the period of limitation, if the court decides that it is "just and reasonable" to do so. Section 27L(1) provides that in exercising that power, the court shall have regard to all the circumstances of the case, including (but not limited to) a list of factors enumerated in sub-paragraphs (a) to (g) of that section. Those provisions are (with one irrelevant addition) similar to s 23A of the Act. In Tsiadis v Patterson,[31] Buchanan JA described the approach which should be taken by the court in determining an application under that section in the following terms:

"The matters which the court is required by section 23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the court must synthesise a number of competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the respondent bears the onus of persuading the court that it is just and reasonable to extend the limitation period."

"(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following -

(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;

(e) the time within which the cause of action was discoverable;

(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

(2) To avoid doubt, the circumstances referred to in sub-section (1) include the following -

(a) whether the passage of time has prejudiced a fair trial of the claim; and

(b) the nature and extent of the plaintiff's loss; and

72 The delay, referred to in s 27(L)(1)(a) and s 23A(3)(a), has been held to refer to the period between the accrual of the cause of action and the making of the application for extension of time, or the issue of the writ.[32] Mr Tobin submitted that, although the delay in this case was lengthy, the defendant had not adduced evidence as to any specific prejudice sustained by him as a consequence of it. Mr Tobin accepted that it might be inferred that, in a case such as this, some prejudice should be inferred, particularly in light of the effect of the passage of time on the quality of memories of witnesses. Further, as McHugh J stated in Brisbane South Regional Health Authority v Taylor,[33] "prejudice may exist without the parties or anybody else realising that it exists". Nonetheless, Mr Tobin submitted that the potential prejudice to the defendant in this case will be minimal. There are contemporaneous records of the procedure carried out by the defendant, and of the procedure carried out by Mr Tjandra. Mr Tobin accepted that the defendant had made his records available to the plaintiff's solicitors when requested to do so in 1998. He submitted, however, that, although it was not asserted that the plaintiff had suffered any legal disability or incapacity during the relevant period, nonetheless her mental state had been so affected as to limit her capacity to know and understand the facts necessary to establish her legal cause of action. He further submitted that at all times the plaintiff had acted promptly and reasonably, given her then state of knowledge. She had consulted Slater & Gordon between 1997 and 2000. She then acted in accordance with the advice of Slater & Gordon, which had been that she did not have a viable cause of action. After she had consulted her current solicitors, she had at all times acted reasonably and promptly. The plaintiff had complied with all requests made of her by her solicitors. She had been slow in providing funds to her solicitors, but that was due to her straitened financial circumstances. Mr Tobin submitted that in those circumstances, and given the substantial nature of the plaintiff's claim, it is just and reasonable to extend the period of limitation within which the plaintiff might bring this proceeding to 31 May 2007.

73 In response, Mr O'Meara submitted that the delay by the plaintiff was substantial. There was prejudice to the defendant, not only arising out of the potential effect of the time delay on his memory, but also from the effect that it had on the plaintiff's memory. Mr O'Meara pointed to the evidence of the plaintiff that her recollection of a number of matters had been affected by the passage of time, and also by the stresses to which she had been subjected over the years. He submitted that there was therefore a substantial risk that any evidence given by the plaintiff might not be accurate. He pointed out that an application for an extension of time would only be relevant, if I were to conclude that the plaintiff's claim had been "discoverable" more than three years before the date of issue of the proceedings. Therefore, such an application would be predicated on a finding that the plaintiff's cause of action had been discoverable in 1997, when the plaintiff had consulted Mr Tjandra. That being so, the plaintiff's application for an extension was not commenced until ten years after the cause of action was discoverable. He submitted that the plaintiff had made a deliberate decision to shelve her claim notwithstanding her long held conviction that she had been a victim of medical negligence. She should not be permitted to recant from that decision so long after the events, critical to this case, took place.

74 I accept that the delay in this case has been substantial. Further, I accept that as a result of that delay, some prejudice may have been caused to the defendant, particularly on the issue as to whether he gave any warning to the plaintiff as to the risks of incontinence resulting from the sphincterotomy to be performed by him. However, I would anticipate that, on that issue, much would depend upon the defendant's evidence as to his usual practice in giving warnings at that time, and on expert evidence as to whether it was then common practice for such warnings to be given.

75 On the other hand, the defendant has not adduced any evidence as to any specific prejudice caused to him as a result of the delay in the issue of the proceedings. In April 1998, Slater & Gordon wrote to him advising him of a possible claim against him on behalf of the plaintiff. Further correspondence passed between Slater & Gordon and the defendant's solicitor in September 1998. Thus, the defendant was on notice, from an early stage, of a potential claim against him. There is no suggestion that any contemporaneous records are missing. I would expect that there would be little dispute as to the nature of the procedure undertaken by the defendant, or as to the findings by Mr Tjandra in his examination in 1997. I note that I was informed, from the Bar table, that Mr Tjandra has passed away. However, it was not put to me that that circumstance would adversely affect the manner in which the case would be conducted.

76 On the other hand, the plaintiff does, on the face of it, have a substantial claim. She consulted solicitors about it in 1997, and left the claim in their hands until at least 2000 (if not 2001). It was then that she received advice that her claim was not "viable". It is understandable that, notwithstanding the plaintiff's strong (but, it seems, misconceived) views as to the responsibility of Mr Somerville for her problems, she did not then proceed to take any further action in relation to her problems. At the same time, she was beset by a number of physical, psychological and personal stresses. Her psychological state was fragile, so much so that she attempted suicide in October 2000. Throughout this time she was suffering from a degrading and debilitating condition for which she sought appropriate treatment. In my view, it is understandable that the plaintiff did not return to the issue of litigation for some time. I accept that, since engaging her current solicitors, she has acted promptly and reasonably. Certainly, there have been delays in the provision by her of funds to her solicitors for the purpose of enabling her claim to be investigated. However, she has not been in a financial position to provide those funds, and has had to borrow most of them from friends. I also accept that the plaintiff's solicitors have acted with reasonable expedition and efficiency in investigating her claim. There have been some delays in obtaining appropriate medical advice. Those delays were not of the making of the solicitors. I accept that the solicitors acted responsibly and reasonably in not seeking more than one medical opinion at a time.

77 Further, I accept that it was not until the plaintiff saw Mr Douglas, in August 2006, that she understood that the defendant had done anything "wrong" in undertaking the operation in May 1996. In those circumstances, and bearing in mind the apparently substantial nature of the plaintiff's claim, I would consider it just and reasonable to extend the period of limitation applicable to the plaintiff's cause of action to 31 May 2007, if it had been necessary for me to do so.

78 For the foregoing reasons I have therefore reached the following conclusions:

1. The plaintiff's cause of action was not discoverable more than three years before the date on which these proceedings are issued. Accordingly, the plaintiff's claim is not barred by s 27D of the Limitation of Actions Act.
2. If it were necessary for me to do so, I would make an order, under s 27K of the Limitation of Actions Act, extending the period of limitation applicable to the plaintiff's cause of action to 31 May 2007.

79 As discussed in submissions with counsel, I shall defer making any formal orders pursuant to these reasons. Subject to hearing from counsel I would propose the following orders:

1. Direct that the question raised by paragraph 26 of the defence dated 18 July 2007 be tried before a judge alone before all other questions in this proceeding.
2. Declare that the proceeding is not barred by s 27D of the Limitation of Actions Act 1958.

[1] Compare Jacobson v Ross [1995] 1VR 337.

[2] (Unreported, Supreme Court of Victoria, 30 June 1994; BC9401143).

[3] (Unreported, Hedigan J, 11 June 1998; BC9802336).

[4] [1998] VSC 83.

[5] [2005] VSCA 107 (reversed on appeal, Stingel v Clark [2006] HCA 37; [2007] 226 CLR 442).

[6] [2008] VSC 88.

[7] (2000) 3 VR 172.

[9] [2006] VCC 793.

[10] [2007] VSC 7; 15 VR 447, [56].

[11] (2000) 3 VR 172.

[13] See Herschberg v Mula (1993) Aust Torts Reports 81-256; Donnelly v State of Victoria (Unreported, O'Bryan J, 30 June 1994; BC 9401143).

[15] See for example Imperial Chemical Industries of Australia Limited v Commissioner of Taxation [1972-1973] ALR 715, 730 (Gibbs J); Commissioner of Taxation v Henderson [1943] HCA 46; (1943) 68 CLR 29, 44 (Latham CJ); Hamilton v National Coal Board [1963] AC 633.

[16] Cf R v Stone (1990) 20 NSWLR 72; Littlewoods Mail Order Stores Ltd v Inland Revenue Commissioners [1963] AC 135, 150 (Viscount Simonds); Hamilton v National Coal Brand (supra), 653, (Lord Jenkins).

[30] [1986] HCA 29; (1986) 161 CLR 10, 29 (Mason, Wilson, Deane JJ).

[31] [2001] VSCA 138; 4 VR 114, [33].

[32] Repco Corporation Limited v Scardamaglia [1996] VicRp 2; [1996] 1 VR 7, 11.

[33] [1996] HCA 25; (1996) 186 CLR 541, 551.