Plaintiff v Defendants

1. On 11 October 2015, whilst working as a Critical Care Registered Nurse in the employ of the first defendant in its intensive care unit ('ICU') (then located in East Melbourne), the plaintiff was assaulted by a delirious and combative patient. The plaintiff alleges that Dr Michelle Stewart and another person named Tracey Markim (now known to be Tracey Marks), were each present at the time of the incident. It is alleged that Dr Stewart was employed or engaged by the first defendant and acted as the designated medical officer at the time. Ms Marks was an agency nurse, employed by the second defendant, who had been engaged to work with the first defendant in its ICU under a labour hire agreement between the first and second defendants.
2. The plaintiff gives evidence that, amongst other things, the first defendant provided artificial life support treatment to cancer patients in its ICU. She deposes that it was not unusual to be confronted by cancer patients suffering delirium as a post operative or pharmaceutical consequence, and that these patients were often (unintentionally) aggressive and violent. She deposes that, at the time of the incident, she had been called to assist Dr Stewart and Ms Marks with a combative patient in delirium. As she assisted them, the patient kicked her in her face and chest.
3. The plaintiff alleges in her statement of claim that she suffered physical and psychiatric injuries as a result of the incident. In particular, following the prescription of medication in the treatment of her psychiatric injuries, the plaintiff sustained injuries as detailed in her affidavit filed in support of her summons.[2] For the sake of her privacy the details of those injuries need not be rehearsed here, however, the resulting disability has significantly affected the plaintiff's life, including by rendering her incapacitated for work. She has undergone at least 24 surgeries and anticipates requiring a further four to six surgeries. She continues to attend regularly upon her general and specialist medical practitioners seeking ongoing treatment for her injuries.
4. The plaintiff alleges negligence and breach of duty by the defendants as detailed in her statement of claim, including in the engagement of staff who had failed to take steps to prevent her injuries, by failing to have in place safe systems, including suitably located duress buttons, protocols and procedures to identify, treat and respond to changing patient behaviour and to protect staff, causing her to sustain loss and damage.
5. The plaintiff worked one shift after the incident before ceasing work on 12 October 2015 by reason of the alleged injuries. She has not worked since. The plaintiff lodged a WorkCover claim on 30 October 2015 with the assistance of the first defendant's health safety and wellbeing manager, Ms Michelle Lane, who has sworn an affidavit in relation to this application.
6. The plaintiff deposes to meeting with Ryan Carlisle Thomas Lawyers ('RCT') on 18 May 2016. She deposes that RCT did not advise her in that meeting that any common law damages claim in respect of her injuries would need to be lodged within six years from the date of injury. However, she has produced in evidence a letter she received from RCT dated 18 May 2016, which letter stated that her common law claim would need to be filed by 11 October 2021. The plaintiff contacted RCT by email on 22 March 2022 expressing her concern about the common law claim lodgement date.[3] In response RCT informed her, incorrectly, that the filing date for any common law claim was 28 November 2023.
7. On 5 June 2023, RCT lodged a serious injury application on behalf of the plaintiff dated 23 May 2023. This application was made one year and seven months after the limitations period relevant to the plaintiff's claim had expired, and seven years and seven months after the date of accrual of the cause of action. On 2 October 2023, the plaintiff was granted a serious injury certificate. On 12 January 2024, WorkCover made a statutory 'nil offer'[4] on the basis that the plaintiff's serious injury application was made out of time.
8. On 7 March 2024, the plaintiff commenced this proceeding. RCT continued to represent the plaintiff until September 2024 when they advised her they were conflicted and could no longer act for her.

1. Under s 23A of the LOA Act, the Court has a discretion to extend the period within which an action may be brought if it is just and reasonable to do so. This statutory discretion to permit an extension of time operates as an exception to the general policy of the law to impose definite time limits for prosecuting civil claims. That policy recognises that '[w]here there is delay the whole quality of justice deteriorates'.[5] It also recognises that:

(a) as time goes by, relevant evidence is lost (even where the parties fail to realise it);

(b) there is unfairness to a defendant in bringing an action long after the events giving rise to it have passed;

(c) legal persons should be able to arrange their affairs and utilise their resources knowing that claims can no longer be pursued against them; and

(d) the public interest requires that disputes be resolved as soon as possible.[6]

Given those general policies of the law, the limitations period in a personal injuries claim should not be seen as 'some easily movable line in the sand'.[7] The applicant for an extension bears the onus of persuading the Court that it is just and reasonable to exercise its statutory discretion, which has been described as a 'formidable hurdle'.[8]

1. Section 23A(3) of the LOA Act provides that the Court shall have regard to all the circumstances of the case in exercising its power under s 23A(2) and sets out a non-exhaustive[9] list of factors to be considered. In reaching a conclusion, the Court is not to weigh the relevant factors against each other, but rather to synthesise the competing considerations to arrive at a conclusion that takes account of them all.[10]

The length of and reasons for the delay: s 23A(3)(a)

1. The relevant delay commences from the date of the accrual of the cause of action.[11] In cases involving a 'serious injury' process, the appropriate end point is the date of filing of the serious injury application.[12] Accordingly, here, the length of the plaintiff's delay is seven years and seven months. The first defendant describes that period of delay as 'significant'.
2. There is no dispute that the reason the plaintiff delayed commencing her proceeding was due to an error made by her lawyers, RCT. Although, initially, RCT's advice as to the limitations period expiry as recorded in its letter dated 18 May 2016 was correct, the evidence shows that RCT subsequently provided incorrect advice to the plaintiff, to the effect that the relevant limitation period would expire in November 2023.[13] The plaintiff was not to blame - she relied on RCT's advice. She asked them about the limitations period. She engaged with them relatively frequently. In the event, her serious injury application, when finally submitted by RCT, was out of time. I accept the plaintiff's explanation of the reasons for the delay, and that it was due to the fault of her former solicitors.

Promptitude and reasonableness of the plaintiff's conduct and steps taken: ss 23(3)(e) and (f)

1. The plaintiff first consulted with RCT in May 2016, that is, within about 7 months of the incident. The first defendant made one criticism of the plaintiff and that is to ask rhetorically 'what [it is that] she did ...up until the issue of this summons'.[14] The plaintiff deposes that she was in regular contact with RCT, at least every three months or so by email.[15] Although there is no evidence about the content of these contacts, the evidence as to their regularity is unchallenged. One of the emails that is in evidence from RCT states '[o]bviously we need to await stabilisation as discussed.'[16] From this it is clear that the plaintiff's former solicitors informed her that her injuries would need to stabilise before commencing a common law claim. This does not suggest any dilatoriness on the part of the plaintiff in engaging legal advice and assistance. The evidence also establishes that the plaintiff's medical treatment has been ongoing throughout the period following the incident in October 2015. She deposes that she still attends appointments with various of her treating specialists every 4 to 6 weeks. The plaintiff's attention has, undoubtedly, been largely consumed by her need to seek medical treatment, including a significant number of surgical interventions. Despite these competing claims on her time, the plaintiff still contacted RCT regularly and specifically checked with RCT about the filing deadline. After commencing her proceeding out of time, RCT informed the plaintiff that it had to cease acting for her because of a conflict. The plaintiff thereafter acted promptly to engage alternative representation.
2. It is relevant too that, by reason of s 328(2)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), the plaintiff could not apply for a serious injury certificate until at least 18 months had elapsed from the date of the incident causing injury. Relatedly, the plaintiff could not commence her common law damages claim for at least that period.[17]
3. I am satisfied the plaintiff has acted promptly and reasonably at all times in the prosecution of her claim. The plaintiff has also acted diligently in seeking legal and medical advice.

The existence of a claim against the plaintiff's former solicitors

1. Each defendant asserts that, by reason of the error in its advice, the plaintiff has a claim against RCT in negligence and that this is a factor for the Court to take into account in determining whether to extend time. I accept that the existence of a claim against a plaintiff's former solicitors for causing the delay is a relevant circumstance to which consideration may be given in determining whether to extend time under s 23A of the LOA Act.[18] How 'real'[19] the consideration is that could be given to this circumstance will depend, in part, on what, if any, view can be formed about the prospect of success of such claim. The defendants each submit that the plaintiff has a 'strong' claim in negligence against her former solicitors, RCT. The submission is based upon the evidence adduced on this application which shows that, in an email, RCT advised the plaintiff incorrectly about the expiry date for her cause of action. The defendants each urge the Court to give the existence of this strong claim considerable weight in its synthesis of factors in determining whether to grant an extension of time.
2. This Court is not in a position to know or assess with any precision the prospects of success of the claims that likely exist against RCT. Contrary to the submission of the second defendant, [20] the Court is not assisted by the fact that RCT ceased to act for the plaintiff in acknowledgment of its conflict of interest. That conflict says nothing about the strength of the claim against RCT, only that there is potentially a claim, the consequence of which is that RCT cannot discharge its duty to prefer its client's interests over its own. This case can also be distinguished on its facts from Gordon v Norwegian Capricorn Line (Australia) Pty Ltd,[21] in which the Court had before it 'a comprehensive affidavit'[22] and a letter from the Legal Practitioners' Liability Committee which detailed 'minutely'[23] the solicitors' handling of the file and its views as to the basis of the claim[24] and where the solicitors' file itself was 'littered with admissions as to the [solicitors'] conduct (ie failings)'.[25] Here, like in Tsiadis v Patterson ('Tsiadis'),[26] the Court has evidence before it about the cause of the delay which implicates the plaintiff's former solicitors. Specifically, the Court has the plaintiff's brief account and two emails and a letter from RCT to the plaintiff, but it does not have the benefit of RCT's explanation about the events, nor does it have the benefit of any evidence of the terms of RCT's engagement, its relationship with the plaintiff, including her instructions to it, and the work it performed.
3. There are other matters, beyond the prospects of success of such a claim, that are relevant to the consideration of how to take account of this factor in the synthesis too. These matters were not addressed to any great extent in submissions. However, it is trite that if the plaintiff is confined to pursuing her former solicitors she would still need to prove the defendants' liability in respect of this case to establish her loss of opportunity claim. The claim against her former solicitors is, therefore, likely to be more complex and expensive. For these reasons, it is not possible to conclude that a plaintiff, confined to a case against his or her former solicitors, would suffer no prejudice.
4. Overall, I do not consider that the existence of a claim against the plaintiff's former solicitors in connection with their advice can be assigned much, if any, importance in my synthesis of all of the circumstances of this case.

Likelihood of prejudice to the defendant: s 23A(3)(b)

1. The length of the delay finds particular significance in its implications for the prejudice the defendants assert they will suffer if the extension of time is granted. The defendants submit that the 'significant' delay affords a basis to infer substantial general prejudice. They also each submit that they would suffer substantial specific prejudice primarily due to the loss of relevant documents and the loss of access to the first defendant's premises, and in particular the ICU, as those sites existed at the time of the incident.

1. It is prima facie prejudicial to a defendant to allow the commencement of an action outside the period limited by the LOA Act.[27] The plaintiff readily concedes that this general, or presumptive, prejudice by reason of the effluxion of time affects the defendants in this case. The longer the delay, the more substantial the prejudice that might be presumed.[28]
2. As noted above, in this case the relevant delay is seven years and seven months. That period is described as 'significant' by the first defendant and as justifying the presumption of substantial prejudice by the second defendant. They rely on the affidavits of Dr Stewart and Ms Lane, to demonstrate the impact of the passage of time on witness memory and, accordingly, the deterioration in the quality of relevant evidence irrespective of witness availability.
3. In her affidavit,[29] Dr Stewart deposes that she:

(a) has no specific recollection of the incident, although it sounds familiar;

(b) does not recall the layout of the ICU or the location of the duress buttons; and

(c) does not remember the plaintiff or Ms Marks.

Dr Stewart states that she does not consider her memory to be reliable given the passage of time. Dr Stewart does not identify any material that she was shown before making her affidavit.

1. Ms Lane (who was not a witness to the incident) deposes[30] that she:

(a) has no recollection of the layout of the ICU rooms as at the date of the incident;

(b) has limited recollection of her conversations with the plaintiff; and

(c) does not recall a nurse by the name of Tracy Markham (sic) or Marks, nor does she recollect Dr Stewart.

Ms Lane's affidavit likewise does not identify any documents that she reviewed to refresh her memory before her affidavit was made.

1. I accept that these affidavits identify an actual deterioration in the quality of the evidence likely to be available at trial in the nature of that which is usually presumed to arise with the effluxion of time. True it is that their recollections may improve when their memories are refreshed from other information sources. However, of additional concern is the real danger of a loss in quality of evidence that is not recognised even by the parties. That danger increases with the length of the delay. As was said by Buchanan JA in Tsiadis:

Not only do memories fade; evidence which might have been available may be lost without any knowledge of the loss.[31]

1. I accept that there will be general or presumptive prejudice caused to the defendants by reason of the plaintiff's delay in commencing this proceeding. So much s apparent from the witnesses' fading memories. The extent of that general prejudice must be taken into account in the synthesis of relevant circumstances in considering whether to extend time. As to its extent, whilst the general prejudice must be given real consideration, I do not regard the plaintiff's delay as so significant or inordinate to justify the inference that this general prejudice will be substantial, or so extensive as to overwhelm the other factors under consideration.

1. The defendants identify several instances of specific prejudice, which they say will deprive them of the opportunity of an acceptably fair trial. Although the plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended, the defendants bear an evidentiary onus to raise 'any consideration telling against the exercise of the discretion'.[32] This includes the need to establish, by evidence, sufficient facts to lead the Court to the view that they may suffer prejudice if the plaintiff is granted an extension of time. Once that is established, the plaintiff must show that the facts do not amount to material or significant prejudice.

1. The first defendant relocated its operations from East Melbourne to Grattan Street in Melbourne in mid-2016. Since the first defendant's operations moved, it has relied on the ICU at the Royal Melbourne Hospital, and the ICU at the East Melbourne premises was 'shut down'.[33] Accordingly, the original scene where the assault incident occurred cannot be inspected.
2. The location of duress buttons within the ICU at the time of the incident is relevant to the proceeding. In her statement of claim, the plaintiff particularises the breaches of duty alleged against the first defendant as including its location of the duress buttons in the ICU at near ceiling level and consequently out of the easy reach of staff, including the plaintiff. The plaintiff gives evidence that there was a duress button in the middle of the nurses station room, rather than at each bed, and that it was placed so high that it was necessary for her to stand on a table to reach it. Dr Stewart gives evidence that she cannot recall the location of any duress buttons in the ICU. Ms Lane says she cannot recall the 'layout' of the ICU, but does not comment specifically about the location of the duress buttons. Ms Lane further deposes:

The First Defendant's internal engineering department that existed on site at East Melbourne, who may have had knowledge or documents about the layout of rooms, including in the ICU, was shut down when the Centre moved to Parkville.[34]

1. The first defendant asserts that it will be prejudiced as it is unable to properly defend the plaintiff's allegations concerning the location of the duress buttons as a consequence of the inability to inspect the ICU premises as it was at the time of the incident, because of the faded memories of its witnesses and the loss of documents which might have recorded the layout. The second defendant submits it is prejudiced because the effective destruction of the original premises means that no analysis can be conducted of the location of the duress buttons and whether the button could have been activated prior to the incident.
2. Accepting that the actual physical premises is no longer available, then the location of the duress buttons cannot be determined by inspection. This does cause some prejudice. However, in my view, it does not preclude there being a fair trial in relation to this issue. The plaintiff gives clear evidence as to the location of the duress button. Dr Stewart's recollection may be refreshed, it not being apparent what information she was provided for the purposes of giving her affidavit. Equally, it may be that if the duress button was located within the nurses station, as asserted by the plaintiff, Dr Stewart did not have occasion to see it. Dr Stewart is available to give evidence at trial and to have her recollection tested. Ms Marks, who was a witness to the incident, is also available. No evidence as to her recollections has been adduced on this application. She may recollect the incident and the location of the duress button. That should all be tested at trial. I am not persuaded that the prejudice that might arise from the inability to inspect the original premises is so significant as to preclude a fair trial in and of itself. Nevertheless, its existence must be taken into account in the synthesis of factors in the determination of this application.
3. I am also not persuaded by the evidence adduced by the first defendant that documents relevant to the layout of the ICU or the location of duress buttons have necessarily been lost. Ms Lane's evidence about the shutdown of the internal engineering department and the consequential loss of information and documents about layout in the quoted paragraph above is vague. It attributes knowledge and documents to the 'department', without explaining what that department was or who it comprised, or what knowledge or documents it had. There is no specificity as to what has been lost and how it might prejudice the defences. This matter is not taken up in the affidavit of Ms Amber Atkinson, the first defendant's Director of Health Safety and Wellbeing, in which she gives evidence on behalf of the first defendant about searches for documents she has undertaken for the purposes of discovery. I am not satisfied that there may be specific prejudice arising from the loss of engineering department knowledge and documents following the shutdown.

Loss of documents as a result of the change in premises and effluxion of time

1. The first defendant points to a more generalised loss of documents of likely relevance to the proceeding as a result of its move from East Melbourne as causing prejudice. However, in my view, the evidence of the loss of documents is again non-specific and unsatisfactory. The documents the first defendant submits have been lost are those that 'the first defendant was not required to keep by law' and which were not also saved onto the first defendant's new computer systems in 2016 following the move.[35] It is not said that all documents fitting this description are lost, or even that specific documents relevant to the issues in dispute are known to be lost. Rather, Ms Atkinson, gives evidence that she:

believe[s] there are gaps in the documents I, and those assisting me, have been able to locate on behalf of the first defendant relevant to this proceeding especially when it comes to documents dealing with policies, standing operating procedures and training records.[36]

The gaps are said to exist 'especially', but not exclusively, when it comes to the policies, standard operating procedures and training records. These are given as examples of the types of documents not required to be retained by law. However, no other classes of documents that might be missing are identified. Ms Atkinson further deposes that:

Documents... not required to [be kept] by law, such as old policies, standing operating procedures and records of training, that up until 2016 were accessible through the old computer system, no longer exist unless a copy of the document was saved directly onto a computer at the Centre.[37]

There is no evidence given of the types of searches that have been undertaken of the computers at the first defendant's premises to search for relevant documents saved on them. There is no evidence that searches have been undertaken by a qualified forensic IT expert.[38] Searches by such persons are a norm of modern discovery, especially to search for and possibly restore and recover deleted or archived electronic documents, such as emails, or to recover previous versions of documents, such as policies.

1. Despite referring vaguely to other documents that might have been lost, it is upon 'the absence of a complete set of policies, standing operating procedures and records of training as they existed at the time of the incident'[39] that the first defendant focusses its written submissions. I accept that these types of documents will be relevant in defending the plaintiff's allegations, amongst other related allegations, to the effect that the first defendant failed to provide or maintain a safe system of work, failed to provide any or any adequate training to Dr Stewart or failed to devise a system where the patient was properly monitored and appropriately sedated. Some apparently relevant policies or procedures of the first defendant have been located.[40] However, they are undated, and the first defendant submits they are likely not the versions in existence at the time of the incident. The first defendant's lawyer, Mr O'Grady, gives evidence that these policies bear a more modern looking logo for the first defendant, which he is 'instructed' the first defendant commenced using in 2016, and which Mr O'Grady 'presume[s] was intended to coincide with its relocation'.[41] The plaintiff highlights that certain of the policies produced by the first defendant, such as the seemingly relevant policies relating to 'Screening, Prevention and Management of Delirium'[42] and 'Use of Restrictive Interventions',[43] identify who authorised and authored them. Each of those policies also identifies a committee or working group that was involved in their development. No evidence has been adduced about the ability of the first defendant to ascertain further information about these discovered policies from the named persons, working group or committee involved in their development.
2. The second defendant submits that it will be more difficult for it to defend the claims against it where its liability will depend on the existence and contents of documents of the first defendant, such as its then extant policies, that may have been lost. Additionally, the second defendant's current CEO, Mr Jason Cartwright, deposes in his affidavit[44] that:

(a) the second defendant has no record or incident report of the October 2015 incident; and

(b) the second defendant has been unable to locate a copy of the labour hire services agreement between it and the first defendant.

He further deposes that, in accordance with its document retention policies, the second defendant undertook a destruction of data in August 2023, at which time the labour hire agreement 'could have been destroyed'.[45] The second defendant submits that it will be prejudiced because the written contractual terms will be relevant to assessing its standard of care. It may also be relevant to any claim for contractual indemnities against the first defendant.

1. I accept that if the labour hire agreement cannot be found, the second defendant will suffer prejudice. It is, however, difficult to assess the significance of the prejudice that the second defendant may suffer by reason of the loss of this and other evidence as asserted. The first defendant says nothing about whether it is able to locate a copy of the labour hire agreement it entered with the second defendant, however, both defendants admit the agreement between them for the provision of nursing staff to work at the first defendant's ICU in their defences.[46] There is no evidence given about the extent and nature of the searches or enquiries that have been undertaken by or on behalf of the second defendant for other relevant documents. The document retention policy referred to is not explained, nor produced. There is no evidence that other records which might be relevant to the allegations made by the plaintiff against the second defendant cannot be located. For example, the plaintiff alleges that the second defendant failed to engage appropriately qualified or experienced staff for critical care roles or that it failed to train them sufficiently. The second defendant says nothing about the loss of documents that may be relevant to these allegations. Many of the other allegations made as to the negligence of the second defendant relate to the specific actions of Ms Marks, who is available to give evidence.
2. The plaintiff submits there are some contemporaneous records relating to the incident which are available for trial, including the incident report and work cover claim form. She criticises the first defendant in particular for being on notice of the claim and failing to adequately investigate it and secure relevant records. The incident report refers to internal reviews including an incident investigation, and yet, the only record of investigation produced by the first defendant appears to be the circumstance report obtained in 2023. In oral submissions, the plaintiff's counsel referred to a briefing note for a meeting of senior human resources and OH&S staff of the first defendant at which the decision was made to terminate the plaintiff's employment in October 2017_._ The plaintiff submits that it is inexplicable that such senior staff would not have conducted a more in depth investigation into the incident at the time or contemplated the possibility of a common law claim against the first defendant when the plaintiff's employment was being terminated because she had been unable to return to work. The plaintiff does not submit that the defendants were deliberately obstructive, only that the loss of documents about which they complain may have been avoided if they had conducted an earlier investigation and it is not the fault of the plaintiff. In my view, even accepting that some of the prejudice results from the defendant's failure to investigate, or gaps in their document retention policies, that is how the plaintiff finds the defendants when she comes to make her application for an extension of time. The defendants are entitled to rely on the prejudice they can establish as a factor telling against the plaintiff's application. Accordingly, to the extent that there is prejudice, the prejudice is not tempered or lessened by any finding that the defendants contributed to the loss of records, or moreover, that the plaintiff did not.

1. The defendants identify that at least one potential witness, Ms Kelly Roger, who the plaintiff identified by name in her compensation claim form dated 30 October 2015 as a person to whom she reported her injury following the incident, cannot be located. It is not clear what prejudice would arise from this witness not being available to give evidence. The other witness to whom the plaintiff reported the incident, being Ms Huckel (who is available), is described by the first defendant as being capable of giving 'firsthand hearsay [evidence], at best'[47] in relation to the incident. The same must be true of Ms Roger. It is, therefore, difficult to see that any real prejudice arises by reason of this one witness not being available.
2. Otherwise, there does not appear to be any difficulty in locating relevant witnesses. Dr Stewart, Ms Marks and the plaintiff, each of whom was involved in the incident, are all available. With the exception of Ms Roger, the post incident witnesses are available. An allowance is made for the adverse impact of the effluxion of time on the memories of these witnesses by presuming general prejudice. I do not regard there as being any specific prejudice due to the unavailability of any witnesses.

1. The first defendant has possession of the medical file for the patient who allegedly kicked the plaintiff (unintentionally) during the October 2015 incident. Mr O'Grady gives evidence that the patient, whose identity is not known to the plaintiff or the Court, is now deceased. Mr O'Grady gives further evidence that he has attempted to contact the person identified as the executor of the deceased patient's estate, but that his correspondence was returned to sender. It is anticipated the file may provide evidence as to the treatment being provided to the patient at the time of the incident, including relevant dosages of medication. The first defendant, and in turn the second, submits that they will be prejudiced if they are unable to divulge (and in turn seek expert opinion about) information obtained by doctors attending the patient that is recorded in the deceased patient's file by operation of s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) ('EMP Act'). Curiously given these submissions and the claimed prejudice, Mr O'Grady, who has the file, expresses the opinion later in his affidavit that he presumes the patient's records 'will be focussed upon the deceased patient and his/her clinical condition' so that 'any fact-finder in any trial of this proceeding may find any record/s relating to the patient to be of little, if any, assistance in resolving the issues in dispute'.[48]
2. I accept that, unless the exceptions in sub-ss (3) or (4), apply, s 28(2) of the EMP Act will preclude some or all of the contents of the deceased's patient's file being divulged in evidence. Despite Mr O'Grady's evidence, I anticipate that some of the information recorded on the patient file may be relevant to the issues in dispute in the proceeding, albeit that cannot be known until the file is accessed. It is, therefore, possible that there will be prejudice to the defendants if the file cannot be used. However, I am not satisfied that there is evidence before this Court that establishes the file is not available so that the defendants are, or will be, prejudiced. The identity of the patient, and his or her executor is within the first defendant's knowledge. There is no evidence that any further enquiries have been made for the purposes of locating the executor, or alternatively one of the other persons who may provide their consent within the terms of sub-s (3), or further, whether the exception in sub-s (4) is enlivened.
3. I am not satisfied that the evidence establishes that the defendants may be prejudiced because they are cannot access the deceased's patient's file.

Extent to which the defendants took steps to make available to the plaintiff means of ascertaining facts relevant to the cause of action: s 23A(3)(c)

1. The plaintiff did not place any real reliance on this circumstance, having raised the defendants' lack of investigation at an earlier time as a reason they were not prejudiced. The plaintiff did not submit that the defendants had been in any way obstructive to the plaintiff, thereby preventing her from bringing her claim, or making this application, earlier.

Duration of the disability after the accrual of the cause of action: s 23A(3)(d)

1. The plaintiff has sustained significant injuries and a significant level of disability, allegedly as a result of the incident. Her affidavit shows that she has experienced a marked deterioration in her quality of life, including her ability to socialise and to derive enjoyment from working as a nurse, a role about which she was passionate before the incident.
2. The plaintiff was granted a serious injury certificate on 2 October 2023. She has been found to have an incapacity for employment for the indefinite future.[49]

1. In synthesising the various considerations that arise in the circumstances of this case, I consider that it is just and reasonable to extend time. I am satisfied that the plaintiff acted reasonably and promptly in seeking advice, legal and medical, in order to progress her claim. The proceeding was commenced after the expiry of the limitations period under the LOA Act, however, not due to the fault of the plaintiff. The plaintiff has suffered significant injuries and disability, leading to an inability to work which will persist into the future. The period of delay is not inordinate, but there is nevertheless presumptive prejudice to the defendants which will affect the quality of the evidence available at trial. There is some specific prejudice due to the inability to inspect the original ICU premises, but I am not satisfied that is significant. There is also likely to be some prejudice as a result of the loss of documents, although based upon the evidence adduced, I cannot be satisfied that will cause significant prejudice. For the detailed reasons given above, and given the availability of witnesses and documents, I am satisfied that the defendants can have an acceptably fair trial in all of the circumstances.
2. I will make orders extending the period within which the plaintiff's cause of action may be brought to allow the plaintiff to bring this proceeding. The costs of this application will be costs in the proceeding.

[1] The first defendant refers to the delay as being 7 years and 7 months (first defendant's submissions filed 17 September 2025, [19]), so I will refer to the period of delay as being 7 years and 7 months hereafter. For the avoidance of doubt, neither my disposition nor analysis would change if the delay was 7 years and 8 months.

[2] Affidavit of Rachael Roselyn Cameron affirmed on 24 April 2025 ('plaintiff's 24 April 2025 affidavit').

[3] Affidavit of Rachael Roselyn Cameron sworn on 29 September 2025, [12], Exhibit RRC-2 ('plaintiff's 29 September 2025 affidavit').

[4] Plaintiff's 24 April 2025 affidavit [11].

[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551 ('Brisbane South') quoting R v Lawrence [1982] AC 510, 517 (Lord Hailsham of St Marylebone LC).

[6] Each of these factors is identified in the frequently cited passage of McHugh J in Brisbane South 552-3 which was approved in Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134.

[7] Griffiths v Nillumbik Shire Council [2022] VSCA 212, [66] ('Nillumbik Shire Council').

[9] Lovejoy v Carp [1999] VSC 223, [53].

[10] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, [33] (Buchanan JA) ('Tsiadis'); Nillumbik Shire Council [68].

[12] Ibid [108]. See also Welsh v Adecco [2017] VSC 44, [6].

[13] See the email from RCT to the plaintiff dated 22 March 2022 in which an RCT lawyer, in response to the plaintiff raising concerns about the limitation period, advised that 'the deadline date is 28/11/2023' (plaintiff's 29 September 2025 affidavit, Exhibit RRC-2).

[14] Transcript of Proceedings, Cameron v Peter MacCallum Cancer Centre (Supreme Court of Victoria, S ECI 2024 01003, Goulden AsJ, 2 October 2025) T39.26-T39.27 ('Transcript').

[15] Plaintiff's 29 September 2025 affidavit [9].

[17] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 328(1).

[19] Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517, [113] ('Gordon').

[21] [2007] VSC 517.

[26] [2001] VSCA 138; (2001) 4 VR 114.

[29] Affidavit of Michelle Nicole Stewart affirmed on 20 May 2025.

[30] Affidavit of Michelle Louise Lane affirmed on 29 May 2025 ('Lane affidavit').

[31] Tsiadis 123 [32] citing Brisbane South 551 (McHugh J).

[32] Brisbane South at 547 (Toohey and Gummow JJ).

[35] Affidavit of Amber Renee Atkinson affirmed on 6 June 2025, [6] ('Atkinson affidavit'). The nature of these documents is not identified, nor is the source of any legal obligation identified which might permit identification of what is intended to be covered by the description.

[38] Ms Atkinson does not depose to having particular forensic IT or document retention or management skills or expertise. I do not intend to be critical of Ms Atkinson who I accept has undertaken the searches she has described.

[39] First defendant's submissions [24], [25].

[40] These were included in a circumstance investigation report produced by Cygnus Higgins Shaw Pty Ltd dated 11 August 2023 which is exhibited to the affidavit of Thomas Edward O'Grady sworn on 6 June 2025 ('O'Grady affidavit') at Exhibit TEO-1, 109-424.

[44] Affidavit of Jason Cartwright sworn on 6 June 2025 ('Cartwright affidavit').

[46] The second defendant makes the admission under cover of objection to the form of the pleading in [10] of the statement of claim.

[49] Two medical panel opinions delivered on 9 November 2016 (O'Grady affidavit 79-85) and 1 October 2018 (O'Grady affidavit 97-108) conclude as much.