Plaintiff v Defendant

Plaintiff v Defendant - [2008] VSC 198 - VSC 2008 case summary — Zoe

[37]

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.

[45]

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.

[81]

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.

[99]

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.

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