Plaintiff v First Defendant

2 Barwon Health has assumed the Hospital's liabilities. For this reason, the defences of the defendants are substantially similar. They have both pleaded that the plaintiff's claim is statute barred by operation of s 27E of the Limitation of Actions Act 1958 (Vic) ("LA Act"). The plaintiff has applied by summons returnable before me for an order, pursuant to s 27K of the LA Act, extending the limitation period for the purposes of his proceeding against the defendants.

3 For the reasons set out in this judgment, I have decided to grant the plaintiff's application.

4 The balance of this judgment is divided into the following parts:

5 The plaintiff relied on an affidavit of Ms Tucker sworn on 28 April 2008 and two affidavits of his solicitor, sworn on 29 January 2008 and 10 June 2008 respectively. The defendants relied on two affidavits sworn by their solicitor on 8 May 2008 and 17 June 2008 respectively. In addition, Ms Tucker gave sworn evidence and was cross-examined. The two solicitors were not cross-examined on their affidavits.

6 The plaintiff was born on 27 July 1994 when Ms Tucker was 20 years of age. Until 22 December 1994, he did not have any relevant health problems.

7 On the evening of 22 December 1994, the plaintiff felt hot, would not feed properly and was very irritable throughout the night. As his condition did not improve, Ms Tucker took him to the Norlane Medical Centre at 8.30am on 23 December 1994, where she saw Dr MacFarlane. Dr MacFarlane said that he did not know what was wrong with the plaintiff and advised Ms Tucker to take him to the Hospital. Dr MacFarlane gave Ms Tucker a letter to give to the Hospital. The letter set out the plaintiff's symptoms (namely, feverishness, temperature near 40° at times, diarrhoea and rapid grunting respiration), and requested an assessment. Ms Tucker returned home to pick up the plaintiff's bottle and nappy bag and then attended the Hospital.

8 In her affidavit, Ms Tucker deposed that she arrived at the Hospital shortly after 9.00am. The Hospital's medical records indicate that Ms Tucker and Aaron were seen at 10.30am. In cross-examination about this discrepancy, Ms Tucker remained adamant that she arrived at the Hospital shortly after 9.00am.

9 Ms Tucker gave evidence that, after her arrival at the Hospital, she and the plaintiff remained in the emergency department where the plaintiff was first seen by someone, possibly a nurse. Sometime in the afternoon, the plaintiff was moved to a ward where he was seen by a young doctor whose name Ms Tucker cannot recall, and subsequently by an older doctor who Ms Tucker believes was Dr Peter Hewson. Ms Tucker gave Dr MacFarlane's letter to the Hospital on 23 December 1994, and the Hospital admits that this occurred, but she does not recall at what time she did so or to whom.

10 Based on the medical records and the facts as pleaded by the plaintiff and admitted by the defendants, it appears that the following events took place after 10.30am on 23 December 1994.

11 At approximately 10.30am, Dr Michael Ragg, a registrar in the emergency department at the Hospital, saw the plaintiff and recorded that the plaintiff had been unwell for 24 hours, had diarrhoea and was listless, and that his oral intake since 6.00pm the previous day had been less than 200 mls. Dr Ragg also recorded that the diarrhoea had improved that day, but the plaintiff had had four to five episodes the day before, and that the UTI[1] had been fully investigated. During or after this initial assessment, it was recorded in the medical records that the plaintiff was an unwell looking male, was irritable/listless/mottled and had cool periphery, exhibited normal ears and throat and dry mucosa/tongue, had no apparent neck stiffness, was tachypnoeic, had grunting respirations, had a soft and lax abdomen, and had no rashes. The plaintiff's temperature was also recorded. According to the statement of claim, the recorded temperature was 38°. According to the defendants' defences, the recorded temperature was between 36.4° and 36.8°. The initial diagnosis was "fever/dehydration - ? gastroenteritis - ? urine/chest".

12 The plaintiff was subsequently examined by Dr Peter Dillane, a paediatric registrar, at an unknown time. In relation to the plaintiff, Dr Dillane recorded:

fever, diarrhoea and poor oral intake. ... Multiple loose stools. ... Today listless and febrile ... No respiratory symptoms but grunting resps noted here. ... Pale interactive at times. Drowsy at times. ... Probably gastroenteritis BUT is quite subdued and pale. However is tolerating oral gastrolyte here.

13 The plaintiff subsequently came into the care of Dr Peter Hewson, a paediatric consultant. At 4.20pm, a lumbar puncture was performed on the plaintiff and a blood sample was taken for testing which indicated a diagnosis of meningococcal meningitis. Intravenous antibiotics were prescribed for the plaintiff and the first doses of cefotaxine and penicillin were given at approximately 5.00pm and 5.15pm respectively.

14 The plaintiff stayed in the Hospital until 9 January 1995. During his stay, he was often irritable and would often jump in his sleep. Later in 1995, the plaintiff was diagnosed with epilepsy and Ms Tucker was advised that this was a result of the meningitis. In 1998, the plaintiff was diagnosed as having developmental delay.

15 Since 23 December 1994, Ms Tucker has taken the plaintiff to various medical practitioners. None of them ever inquired as to what had transpired on 23 December 1994 and none of them told her anything to indicate that the Hospital had been negligent. Ms Tucker had accepted what had happened to the plaintiff simply as "bad luck". Ms Tucker's evidence, which I accept, is that prior to August 2002, she did not turn her mind to the question of whether the Hospital had done anything wrong. She believed that the delay that the plaintiff experienced at the Hospital on 23 December 1994 was due to the difficulty in diagnosing meningococcal meningitis at that time, and that once the illness was diagnosed, the plaintiff was treated appropriately with antibiotics.

Article in the 8 August 2002 edition of The Geelong Advertiser

16 In August 2002, Ms Tucker read an article in the 8 August 2002 edition of The Geelong Advertiser about a woman in New South Wales who had died from a meningococcal disease after allegedly waiting for treatment. I refer to this article as "the newspaper article". As the newspaper article assumed some significance during argument, I set it out in full below:

Two inquiries were under way yesterday into the death of a New South Wales woman from meningococcal disease after she was reportedly forced to wait for treatment at Nepean Hospital.

The death of 45-year-old high school teacher Sarita Yakub brought the State's death toll from the disease this year to 15.

The incident also reignited political debate about the health of hospital emergency departments.

Mrs Yakub's husband, Mohammed, said they were forced to wait for more than two hours after arriving at the hospital at 12.15am on Saturday.

Mrs Yakub was refused a bed and was forced to wait outside in the car, he said.

Health Minister Craig Knowles, however, said hospital records suggested Mrs Yakub was assessed at 12.42am on Saturday and called for treatment at 1am, but was unable to be found.

He refused to speculate on the possibility she was in the car when she had been called.

He said full clinical and coronial inquiries were underway and would look into the two versions of the incident.

"And particularly about the variation in the versions of events associated with the performance of the Nepean emergency department in the early hours of last Saturday morning," Mr Knowles said in Sydney yesterday.

Two weeks ago a seven-year-old girl died at Wyong Hospital after being admitted and not treated for several hours. Investigations are ongoing.

17 In her affidavit, Ms Tucker deposed that, although the circumstances of the woman referred to in the newspaper article were different from those of the plaintiff, nevertheless reading the newspaper article prompted her to obtain a copy of the plaintiff's hospital records. By letter dated 13 August 2002 addressed to the "FOI officer" of the Hospital, Ms Tucker requested copies of the plaintiff's "pre-admission records (casualty) and admission records to the children's ward" on either 22 or 23 December 1994. The letter stated that Ms Tucker was "putting together a medical history" of the plaintiff. The letter did not say that Ms Tucker was seeking the records in order to consider whether the plaintiff might have an action in negligence against the Hospital.

18 The Hospital made the medical records available to Ms Tucker shortly afterwards. In her affidavit, Ms Tucker deposed as follows:

I looked through the records but didn't understand a lot of the contents and nothing in those records meant anything to me. I put the records with the numerous other documents I had concerning Aaron's progress. I was not considering litigation at the time I accessed the hospital records. If I had been considering litigation I would have spoken to one of the solicitors at the firm where I was working, and would have shown them the records. I never even discussed Aaron's situation with any of the solicitors at Doyle Considine. I never knew anything about time limits, because I never worked on the client's files, only in the accounts department. I had worked in various solicitors' offices from the time I was 15, but always in the accounts or the conveyancing and settlements area. If I had thought the hospital had been negligent and their negligence had contributed to Aaron's condition, I would have sought legal advice. I thought the hospital had provided the proper treatment by administering the antibiotics.

19 Mr Gorton, who appeared for the defendants, put it to Ms Tucker during cross-examination that when she read the newspaper article, she knew there was a real issue as to whether the plaintiff had received appropriate treatment and that one of the reasons she wanted the records was to investigate whether or not the Hospital had provided proper treatment. Ms Tucker agreed and said that she did not know for sure whether the plaintiff had an action against the Hospital but knew that there was an issue as to whether he did. She agreed that she wrote the letter to the Hospital to obtain the records with a view to considering whether the plaintiff had an action. She also agreed that she knew the plaintiff might have a case but she was not sure and that she took no steps to obtain any advice from anyone as to whether the plaintiff might have a case. Ms Tucker said that there was nothing in the records that "flagged" to her that the plaintiff had an action.

20 In response to Mr Gorton's question "How can you explain the fact that, you're with lawyers all throughout this time, you even go through this time, you're studying law, you're doing your law degree, why didn't you take a step to find out about whether something - whether you might bring a claim against the hospital?", Ms Tucker responded:

I didn't think I had the opportunity - like I didn't think I had a case. I thought Aaron - Aaron didn't die. It was different in this case and, you know, he - it was just - back then I just thought it was just [bad] luck. There was probably nothing I could do.

21 Ms Tucker was re-examined by Mr Casey QC, who appeared with Ms MacTiernan for the plaintiff. In re-examination, Ms Tucker said that notwithstanding what was written in the newspaper article and the hospital records, she did not, in August 2002, feel that there was anything to investigate about the Hospital's treatment of the plaintiff. In response to Mr Casey's question "What evidence did you have of a case that might be brought against the hospital for damages?", Ms Tucker responded "No, I didn't know if I had a case, I didn't understand the medical records, I put them aside". Ms Tucker also said that she first understood that the Hospital's treatment of the plaintiff might not have been appropriate when she spoke with Dianne McDonald in March 2007 about Ms McDonald's daughter (see paragraph 29 of this judgment). In response to Mr Casey's question as to whether Ms Tucker had any knowledge that the plaintiff might have a case against the Hospital prior to receiving the expert med[2]cal opinion2 in September 2007, Ms Tucker responded "No, not, you know, no".

22 Ms Tucker gave confusing and, at times, contradictory evidence. However, in observing Ms Tucker give evidence, I formed the view that she was an honest witness who endeavoured to give truthful answers despite being uncomfortable and nervous in the witness box. In my opinion, this nervousness explains why she sometimes hastily made admissions in response to Mr Gorton's cross-examination notwithstanding that the admissions conflicted with the evidence in her affidavit and answers given earlier in the cross-examination.

23 Ms Tucker gave consistent evidence that she believed that the reason for the Hospital's delay in treating the plaintiff with antibiotics was that it was difficult to diagnose meningococcal meningitis back in 1994, and that once the diagnosis was made, the Hospital acted appropriately. I find that as a result of reading the newspaper article in August 2002, Ms Tucker wanted to see the plaintiff's hospital records to ascertain if they disclosed whether, like the woman in the article, delay in the treatment of the plaintiff harmed him and whether he might have a claim against the Hospital. When Ms Tucker received the hospital records, she did not understand them and nothing in them changed her long-held belief that the delay in treating the plaintiff with antibiotics was due to the difficulty, as at 1994, in diagnosing meningococcal meningitis. As a result of reading the hospital records, Ms Tucker did not form a view either that the Hospital had been negligent or that the plaintiff had a claim against the Hospital.

Ms Tucker's employment with law firms and undertaking of a law degree

24 In May 1995, Ms Tucker commenced employment as an accounts clerk with Doyle & Considine, Solicitors in Geelong. She remained in that employment until January 2003.

25 In 2003, Ms Tucker commenced an Arts Degree at Deakin University and worked one day per week with Tolhurst Druce & Emmerson "cleaning up accounts from Doyle & Kerr, with whom they merged". In September 2003, she commenced part-time employment with McDonald Partners and also continued to work one day per week at Tolhurst Druce & Emmerson until December 2003.

26 In 2004, Ms Tucker commenced a combined Arts and Law Degree at Deakin University, which she completed at the end of 2007. The law course included subjects in torts and contract. Nothing that she learned in those subjects made her think of suing the Hospital.

27 In September 2006, Ms Tucker commenced working five hours per week at Christine Thomas Lawyers "doing her accounts". She commenced articles of clerkship with that firm on 3 December 2007.

28 In early 2007, Ms Tucker spoke with Michael McDonald (the principal of McDonald Partners) and Dianne McDonald, who it appears is an employee of McDonald Partners, about the plaintiff's behaviour, as it was becoming a great concern to her. This behaviour included episodes of violence, where the plaintiff would hit Ms Tucker.

29 In March 2007, Ms McDonald advised Ms Tucker that in 1989, Ms McDonald's infant daughter had been ill and her general practitioner performed a lumbar puncture in his surgery as soon as they took her to the surgery. It was at this point that Ms Tucker wondered why the Hospital had not performed the lumbar puncture on the plaintiff at an earlier time on 23 December 1994. At Ms McDonald's suggestion, Ms Tucker saw her current solicitor on 21 March 2007. The solicitor issued a generally endorsed writ on the same day and delivered a statement of claim on 24 September 2007, after receiving a report dated 3 September 2007 from Dr John Raftos, an expert in emergency medicine.

30 In his report, Dr Raftos expressed the following opinion:

Aaron should have been seen by an Emergency Department doctor within 30 minutes of his arrival at hospital at 1030 hours and the doctor should have completed his / her assessment, taken blood for testing, and called the paediatric registrar within 30 minutes of seeing Aaron, that is by 1130 hours at the latest. Blood should have been sent for testing by 1130 hours and the results of the tests should have been available by 1300 hours at the latest. The paediatric registrar should have assessed Aaron by 1200 hours at the latest.

Aaron presented to hospital on the morning of 23 December 1994 with clinical features that were strongly suggestive of a serious bacterial infection and required urgent investigations, specialist paediatric assessment, and treatment with empirical intravenous antibiotics. The hospital doctor's failure to appreciate that the clinical features of Aaron's illness placed him in the group of infants at highest risk for serious bacterial infection and to perform urgent investigations and urgently consult the paediatric registrar caused an unnecessary delay of about four hours in the appropriate treatment of Aaron's meningococcal meningitis. Had empirical intravenous antibiotics been started by 1300 hours, as should have been the case, there is a reasonable likelihood that Aaron would have recovered without permanent neurological disability.

31 In arriving at the above opinion, Dr Raftos relied principally on the Hospital's medical records whose contents have either been formally admitted in the defendants' defences or are, for the most part, not in dispute (see paragraph 36 of this judgment).

Before being advised of Dr Raftos' opinion I knew that meningitis had to be treated with antibiotics because I did internet searches about the condition after Aaron was diagnosed, but I never knew that if Aaron had had the antibiotic treatment earlier that his brain damage could have been prevented. I always thought the hospital had treated Aaron appropriately by giving the antibiotics.

33 The second affidavit of the plaintiff's solicitor exhibits a certificate given by Dr Charles Castle dated 9 June 2008 certifying that the degree of the plaintiff's impairment resulting from his injury is more than five percent. Dr Castle assessed the plaintiff's injury as "neurological impairment as a result of meningococcal infection in 1994, with permanent cognitive impairment".

34 Paragraph 9 of the statement of claim alleges that the plaintiff and Ms Tucker attended the Hospital at approximately 9.00am on 23 December 1994. Paragraph 13 alleges that the Hospital failed to have the plaintiff examined by a medical practitioner until 10.30am. Paragraph 14 alleges that an initial assessment of the plaintiff was conducted at approximately 10.30am. Paragraph 30 alleges:

(a) examine the Plaintiff before 1030 hours, notwithstanding he had been referred to the hospital by a concerned general practitioner who was unable to diagnose the cause of the Plaintiff's signs and symptoms;

(b) assess the Plaintiff's vital signs prior to 1030 hours;

(c) assess and monitor the Plaintiff's vital signs between 1031 hours and 1700 hours;

(d) recognise the significance of the Plaintiff's signs and symptoms at the time of the initial assessment;

(e) organise for the Plaintiff to be examined immediately after the initial assessment by an appropriately qualified paediatric practitioner;

(f) perform a full blood examination, including CRP before 1620 hours;

(h) administer an appropriate regime of antibiotic therapy before at 1700 hours on 23 December 1994 -

the Defendant caused the Plaintiff to suffer injury.

Exacerbation, acceleration and deterioration of meningitis.

Left medial temporal sclerosis and hippocampus or aggravation, exacerbation of deterioration of.

Dysfunction of the anterior temporal lobe or aggravation, exacerbation, acceleration or deterioration of.

Infarction of the right cerebellar hemisphere or aggravation, exacerbation, acceleration or deterioration of.

Neurological dysfunction, which has resulted in impaired balance and subsequent physical injuries.

35 Paragraphs 31 to 33 of the statement of claim contain allegations relating to the plaintiff's readmission to the Hospital on 12 July 1996. Mr Casey informed me that the plaintiff will not be pursuing paragraphs 31 to 33 of the statement of claim if the application before me is successful.

36 In their defences, the defendants deny that the Hospital was negligent. However, they admit nearly all parts of the statement of claim to the extent they are based on the medical records of the Hospital. In particular, the defendants admit or substantially agree that the plaintiff was first examined at approximately 10.30am (although they deny that the plaintiff arrived at the Hospital at approximately 9.00am and allege he arrived at or shortly before 10.30am), that a subsequent examination was carried out at an unknown time, that a blood specimen was taken at 4.20pm, that a lumbar puncture was performed at 4.20pm and that cefotaxine was administered at 5.00pm and penicillin at 5.15pm. The defendants also admit or substantially agree about the symptoms recorded at each point. The defences allege that the plaintiff's claim is statute barred by operation of s 27E of the LA Act.

37 In his amended reply, the plaintiff denies that his claim is statute barred and, in the alternative and in case his claim is statute barred, seeks an extension of the limitation period.

38 Mr Casey conceded before me that the plaintiff's claim is statute barred under s 27E(2)(b) of the LA Act, which sets out the 12 year long-stop limitation period, namely "the period of 12 years from the date of the act or omission alleged to have resulted in the personal injury with which the action is concerned".[3] He submitted that this expired on 24 December 2006, three months before the plaintiff issued his writ. Both parties made brief submissions on whether the limitation period expired earlier under s 27E(2)(a) of the LA Act, which refers to "the period of 6 years from the date on which the cause of action is discoverable by the plaintiff". I refer to the issue of when the cause of action was discoverable by the plaintiff later in this judgment. For present purposes, it suffices to say that Mr Casey's concession is clearly correct and that the claim, having been made after the expiry of the 12 year long-stop limitation period, is statute barred under s 27E(2)(b) of the LA Act.

39 The relevant provisions of the LA Act are set out in Part IIA, which is headed "Personal injury actions". It was common ground before me that Part IIA applies to the plaintiff's claim.

27E Limitation period for personal injury actions - persons under a disability

(1) This section applies to a cause of action to which this Part applies which is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.

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

(a) the period of 6 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 personal injury with which the action is concerned.

(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.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

27J Effect of legal incapacity on limitation period

(1) A person is under a legal incapacity for the purposes of this section while the person -

(a) is a minor, but not while the minor is in the custody of a capable parent or guardian; ...

(3) In determining when a cause of action is discoverable by a person who is a minor ... facts that are known or ought to be known by a capable parent or guardian of the minor ... are deemed to be facts that are known or ought to be known by the minor ...

capable parent or guardian of a minor means a person -

(1) A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.

(a) may hear any of the persons likely to be affected by the application as it sees fit; and

(b) may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.

(3) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.

27L Matters to be considered in determining applications for extension of 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 subsection (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

(3) In the application of this section to a cause of action that is a survivor action references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.

(4) In the application of this section to a cause of action that arises under Part III of the Wrongs Act 1958, references in subsection (1) to the plaintiff include references to the deceased, the executor or administrator of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.

45 Section 27M of the LA Act provides that the Court's power to grant an extension may be exercised at any time even though the period of limitation has already expired, or an action in respect of the personal injury has already been commenced.

46 Mr Gorton relied on Brisbane South Regional Health Authority v Taylor.[4] That case concerned the proper interpretation of s 31(2) of the Limitation of Actions Act 1974 (Qld) which empowered the court to extend the limitation period where a material fact of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until the year before the expiration of the limitation period and there is evidence to establish the cause of action apart from the limitation defence. The High Court held that an applicant under s 31(2) does not have a presumptive right to an order extending time once the conditions in s 31(2) have been satisfied; he or she still bears the legal onus of showing that the justice of the case requires the discretion to be exercised favourably, and to do so must prove that the extension would not result in significant prejudice to the defendant. The Court also held that s 31(2) does not require a weighing process between the potential prejudice to the applicant and defendant. It further held that prejudice to the defendant should be assessed in its entirety and should not be assessed by comparing the defendant's position immediately before the limitation period expired with the present position and determining whether the defendant suffered "additional" prejudice due to the delay between those points in time. McHugh J, with whom Dawson J agreed on this point, held that to allow the commencement of an action outside a statutory limitation period is prima facie prejudice to the defendant who would otherwise have the benefit of the limitation.

47 Mr Gorton relied on the detailed discussion of McHugh J in Taylor regarding the rationale for limitation periods and his observations that the full extent of the prejudice to a defendant will often not be capable of being fully ascertained. His Honour said:[5]

In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

48 Mr Casey submitted that Taylor does not exhaustively state the relevant principles for the present case, because the legislation considered in Taylor was different from the provisions of the LA Act which are relevant in the present case. He submitted that the principles in Taylor must be tempered by the views expressed by the Court of Appeal in Tsiadis v Patterson.[6] That case concerned an application under s 23A of the LA Act to extend a limitation period by a plaintiff who was an adult and not under any legal disability. Section 23A, whose object Ormiston JA described as "ameliorative",[7] is similar to, but not identical with, ss 27K and 27L. The Court emphasised that s 23A(3) requires both actual and potential prejudice to be taken into account. This is also true of s 27L(1)(b). Callaway JA said that "the language and structure of [s 23A] require a synthesis of incommensurable considerations for the purpose of deciding whether it is just and reasonable to extend the limitation period".[8] Buchanan JA, with whom Ormiston JA agreed, said:[9]

[30] Counsel for the appellant relied upon the decision of the High Court in Brisbane South Regional Health Authority v Taylor. According to the NSW Court of Appeal the effect of the High Court decision "is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant". ...

[31] The legislation considered by the High Court provided that where a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until after the commencement of the year last preceding the expiration of the limitation period and there was evidence to establish the right of action, a court "may order that the period of limitation for the action be extended." The statute prescribed no matters the court was required to consider in determining whether to extend the period of limitation. Section 23A of the Act is quite different. Section 23A does not belong to that class of legislation providing for extensions to limitation periods that depend upon the discovery of new facts and, more importantly, requires the court to have regard to all the circumstances of the case, one of a number being the extent to which, having regard to the delay, there is likely to be prejudice to the proposed defendant. The form of the provision in my view does not permit the conclusion that proof of prejudice considered alone must lead to the refusal of an application. Prejudice to the potential defendant is to be considered together with all the circumstances of the case, although in a particular case it may be very significant if it is so severe as to preclude a fair trial of the applicant's claim.

[32] The lapse of time since the occurrence of the accident alone warrants an inference of prejudice. Not only do memories fade; evidence which might have been available may be lost without any knowledge of the loss. ...

[33] The matters which the court is required by s 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 them all, bearing in mind that the respondent bears the onus of persuading the court that it is just and reasonable to extend the limitation period.

49 Both Taylor and Tsiadis were considered by the Court of Appeal in Clark v McGuinness,[10] which also concerned s 23A of the LA Act, this time in the context of an alleged sexual assault in February 1981. The Court held that whilst Tsiadis correctly set out the principles to be applied for the purposes of s 23A, the rationale for limitation periods discussed in Taylor continues to have relevance.[11] The Court also emphasised that under s 23A, presumed prejudice to a defendant arising from the applicant's delay is to be taken into account,[12] and that the onus was on the applicant to persuade the Court that it is just and reasonable to extend the period of limitation.[13] The principles discussed in Clark in relation to s 23A are, in my opinion, also applicable to s 27L of the LA Act.

Analysis of relevant considerations under s 27L of the LA Act

50 In exercising the Court's powers conferred by s 27K of the LA Act, I must have regard to all of the circumstances of this case, including (but not limited to) the matters set out in s 27L.

51 Mr Gorton submitted that there is an apparent inconsistency between ss 27L and 27J of the LA Act. He submitted that s 27J(3) discloses a legislative intention that the knowledge and conduct of a capable parent be attributed to a plaintiff who is under a legal disability. He submitted that the references to "discoverability" and "discoverable" in s 27L make it clear that references to "plaintiff" in s 27L(1) and (2) are intended to refer to the plaintiff as well as the plaintiff's capable parent where the plaintiff is under a legal disability, notwithstanding that this is not expressly stated in either s 27L or 27J(3). He submitted that this interpretation is supported by Curnow v Roman Catholic Trust Corporation Diocese of Melbourne.[14] Mr Casey did not dispute this.

52 In considering this apparent inconsistency, I note that the existence of s 27L(3) and (4) indicates that Parliament turned its mind, at least in some respects, to what is meant by references to "plaintiff" in s 27L(1) and (2), as sub-sections (3) and (4) specify that references to "plaintiff" in sub-section (1) include certain other persons where the cause of action is a survivor action or a cause of action arising under Part III of the Wrongs Act. However, I do not believe that the absence of a provision similar to s 27L(3) and (4) dealing with the case of a plaintiff under a disability, means that the references to plaintiff in s 27L are confined to the plaintiff personally. Accordingly, I accept Mr Gorton's submission and agree with Curnow on this point. References to "plaintiff" in s 27L are to be read as references to the plaintiff as well as Ms Tucker in the present case, and I deal with s 27L accordingly in this judgment.

53 I now consider each of the matters set out in s 27L(1) and (2) of the LA Act.

54 Section 27L(1)(a) of the LA Act requires me to have regard to the length of and reasons for the delay on the part of the plaintiff. The relevant delay in this case is the period between 23 December 1994 and 21 March 2007.

55 Mr Gorton submitted that the plaintiff had not provided adequate reasons for the delay. He submitted that, by August 2002 at the latest, Ms Tucker knew that she had attended at the Hospital urgently but the plaintiff had not been seen until 10.30am and, on the plaintiff's case, no tests were performed or treatment administered until late afternoon, that the plaintiff had contracted meningitis and consequently suffered significant and permanent mental problems, and that delay in treating someone with meningitis can result in an unfavourable medical outcome. Mr Gorton submitted that, despite her awareness of those matters, Ms Tucker took no steps to further investigate the possibility of making a claim despite being an educated, intelligent and English-speaking woman who had regular professional and social contact with lawyers. He also submitted that the seriousness of the injury and the fact that it had been serious from the time of injury (as opposed to being relatively minor at the time of the injury and subsequently becoming more serious) made the delay less excusable.

56 Mr Gorton further submitted that, even if delays prior to August 2002 can be excused, there is no proper excuse for Ms Tucker's failure to take steps after that time until 2007. He submitted that, on the evidence, it was a fair inference that, either by the time Ms Tucker read the newspaper article in August 2002, or by the time she sought and received the medical records from the Hospital, which occurred soon after she read the newspaper article, she thought the plaintiff might have a claim against the Hospital.

57 In response, Mr Casey submitted that it could not be said that Ms Tucker knew or had a genuine belief that the plaintiff had a good claim to make against the Hospital until the conversation in March 2007 with Ms McDonald, and that following that conversation, Ms Tucker acted very quickly to investigate whether the Hospital's delay in treating the plaintiff caused or contributed to the plaintiff's long term disability and whether the plaintiff had a good claim in negligence against the Hospital.

58 In paragraph 23 of this judgment, I found that the reading of the newspaper article in August 2002 and the plaintiff's hospital records shortly afterwards did not lead Ms Tucker to form a view either that the Hospital had been negligent or that the plaintiff had a claim against the Hospital. Mr Gorton was not able to point to any event prior to that time or between that time and March 2007 that put Ms Tucker on notice that the Hospital might have been negligent or that the plaintiff might have a cause of action against the Hospital. I do not give much weight to the fact that Ms Tucker worked in various law firms since May 1995, as she was employed as an accounts clerk until she became an articled clerk on 3 December 2007. Nor do I give much weight to the fact that Ms Tucker was a law student between 2004 to 2007. Whilst those roles may have increased the prospects of Ms Tucker becoming aware that the Hospital may have been negligent, there is no evidence that they had this effect prior to March 2007, when she spoke to Ms McDonald. I find that that is the time at which Ms Tucker became aware that the Hospital may have been negligent and that the plaintiff might have a good cause of action in negligence against the Hospital. It is not disputed by the defendants that Ms Tucker acted promptly after this time. Accordingly, I find that Ms Tucker has provided adequate reasons for the delay between 23 December 1994 and 21 March 2007.

Section 27L(1)(b) - prejudice to the defendants

59 Section 27L(1)(b) of the LA Act requires me to have regard to the extent to which, having regard to the plaintiff's delay, there is or is likely to be prejudice to the defendants.

60 Mr Gorton submitted that it is apparent from the material filed on behalf of the plaintiff that the plaintiff proposes to argue that Ms Tucker and the plaintiff attended the Hospital at or shortly after 9.00am on 23 December 1994 and that their arrival was not recorded until 10.30am. He further submitted that this is significant because the essence of the plaintiff's case would be that the Hospital failed to ensure that proper attention was given to the plaintiff until a time that was later than should have been the case, despite the plaintiff's early arrival at the Hospital on that date. He submitted that every hour of delay that the Hospital could not explain would prejudice the defendants' case. He submitted that, given the effluxion of time and deterioration of the relevant Hospital personnel's memory of the relevant events, the defendants would suffer prejudice because they would be unlikely to be able to receive instructions or lead evidence from the personnel who are said to have interacted with Ms Tucker, to challenge anything she says, particularly in relation to why the plaintiff was not treated at an earlier time than was in fact the case and what symptoms the plaintiff had before he was taken to the Hospital. He submitted that the existence of the hospital and other medical records do not answer this problem because they do not tell the whole story and do not record the kind of information that would enable the defendants to raise a good defence. He further submitted that the Court should have regard to the above specific prejudice as well as the general and often undemonstrable prejudice caused by lengthy delay, as in this case.

61 In response, Mr Casey submitted that there is no real prejudice to the defendants because what transpired during the critical hours is the subject of detailed entries in the hospital records, which provide a full contemporaneous record of the events of 23 December 1994, and both parties will need to rely on the records in assessing their cases. He submitted that doctors and nurses commonly do not remember particular cases irrespective of whether there is long delay, and the lack of significant recollection by medical staff does not point to any special or significant prejudice in this case. He also submitted that the hospital records in this case were sufficient for the defendants to make detailed admissions, which they had done, and that the records had formed the basis of Dr Raftos' expert report.

62 The defendants' solicitor has deposed that the Hospital may be able to identify the triage nurse who was on duty at the Hospital's emergency department on 23 December 1994 (although the nurse has not yet been identified), that Dr Ragg (a registrar in the emergency department who examined the plaintiff) and Dr Dillane (a paediatric registrar who also examined the plaintiff) had been contacted and had recognised their handwriting on the plaintiff's medical records (but otherwise had no recollection of the plaintiff or of the events of 23 December 1994) and that Dr Hewson (the paediatric consultant who treated the plaintiff) is suffering from Alzheimer's disease which impairs his ability to give evidence.

63 I accept that the plaintiff's delay will cause actual as well as potential prejudice (including presumed prejudice in the sense discussed in Taylor, Tsiadis and Clark) to the defendants. A period of 12 years and three months from the date of the relevant events to the date of issuing proceedings and an additional period of approximately two years after that time for a trial inevitably results in the witnesses who continue to be available not being able to remember relevant events accurately or at all. In this case, Dr Ragg and Dr Dillane have indicated that they do not recollect the plaintiff or the events of 23 December 1994, Dr Hewson is unlikely to be fit to give evidence and the triage nurse might not be identified or, if identified, might not be available. There is also force in Mr Gorton's submission that the defendants' witnesses might not be able to contradict any evidence that Ms Tucker gives about events prior to 10.30am on 23 December 1994.

64 If the contemporaneous hospital records had not been available or had been less comprehensive than they are, the prejudice to the defendants would have weighed heavily against an extension of the limitation period. However, in this case, the prejudice to the defendants is diminished by the availability of the records, the level of detail they contain and the fact that the defendants have admitted nearly all of the plaintiff's allegations as to the contents of the records.

65 According to the plaintiff's expert, the crux of the allegation of negligence is the delay of four hours between 1.00pm and 5.00pm. The expert does not rely on anything that may or may not have occurred before 10.30am or after 4.20pm when Dr Hewson became involved. Rather, the expert relies on the failure of Dr Ragg to recognise the plaintiff's symptoms and conduct the necessary tests on a timely basis. Both Dr Ragg and Dr Dillane are available to give evidence and their detailed notes are available. As for Ms Tucker giving evidence which may not be capable of contradiction, there is no suggestion that the defendants will not be able to lead evidence of the standard emergency department procedures that applied in December 1994 and make submissions about the inferences the Court should draw as to the likelihood of a sick infant being left unattended in that department for up to one and a half hours. The defendants will be able to cross-examine Ms Tucker, as Mr Gorton did before me, about the accuracy and reliability of her recollection. As the plaintiff's case is largely based on the hospital records being comprehensive and accurate, the defendants will be able to make submissions as to what evidence should be accepted where there is conflict between Ms Tucker's evidence and the contents of the hospital records.

66 In all the circumstances, while the defendants will suffer actual and potential prejudice if the limitation period is extended, the prejudice is not significant enough to deprive them of a fair trial or to lead to an assessment, when it is considered alongside the other matters referred to in s 27L of the LA Act, that the plaintiff has failed to establish that it is just and reasonable to extend the limitation period.

Section 27L(1)(c) - defendant making available means of ascertaining facts

67 Section 27L(1)(c) of the LA Act requires me to have regard to the extent, if any, to which the defendants 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 defendants.

68 This was not the subject of detailed submissions by the parties and, in my view, there is nothing about the steps the defendants took (or failed to take) in this case which affects my decision about whether to extend the limitation period. I note that the Hospital responded promptly to Ms Tucker's request of 13 August 2002 for the plaintiff's medical records.

Section 27L(1)(d) - duration of disability arising after date of discoverability

69 Section 27L(1)(d) of the LA Act requires me to have regard to the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability.

70 This was not the subject of submissions by the parties and, in my view, no disability or legal incapacity of the plaintiff arising on or after the date of discoverability (as to which, see paragraph 75 of this judgment) affects my decision about whether to extend the limitation period.

Section 27L(1)(e) - time within which cause of action discoverable

71 Section 27L(1)(e) of the LA Act requires me to have regard to the time within which the cause of action was discoverable. The expression "discoverable" is defined in s 27F of the LA Act, which is set out in paragraph 41 of this judgment.

72 The cause of action in the present case was discoverable on the first date that Ms Tucker knew or ought to have known that the injury to the plaintiff had occurred, that the injury was caused by the fault of the defendants, and that the injury was sufficiently serious to justify the bringing of an action on the cause of action. Whether Ms Tucker ought to have known of any one of those facts depends on whether the fact would have been ascertained by her if she had taken all reasonable steps before that date to ascertain the fact.

73 Mr Casey relied on Spandideas v Vellar,[15] for the proposition that "fault" in s 27F(1)(b) of the LA Act should be given its ordinary everyday meaning and that in order for an action to be discoverable by a plaintiff, the plaintiff must know (or ought to know), among other things, that the 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. Mr Gorton did not submit that "fault" has a different meaning. I accept Mr Casey's submission.

74 In relation to when the cause of action in the present case was discoverable, Mr Gorton relied on the same submissions as those which he made regarding the plaintiff's delay (see paragraphs 55 and 56 of this judgment) and did not make a specific submission about when the cause of action was discoverable. Mr Casey similarly relied on his submissions in relation to the plaintiff's delay, and further submitted that, in all the circumstances, the cause of action was not discoverable until Ms Tucker had received Dr Raftos' expert opinion in early September 2007.

75 I find that the cause of action in the present case was discoverable in early September 2007 when Ms Tucker received Dr Raftos' expert opinion. Although Ms Tucker knew in 1994 that the plaintiff had suffered an injury, knew in 1998 that the injury was serious and knew in March 2007 that there was reason to believe the Hospital might have been negligent, she did not know until she received Dr Raftos' expert opinion that the injury was caused by the fault of the Hospital. As to whether Ms Tucker would have ascertained the Hospital's fault if she had taken all reasonable steps before September 2007, I have already found in paragraph 58 of this judgment that the first time that Ms Tucker understood that the Hospital may have been negligent and that the plaintiff might have a good cause of action in negligence against the Hospital was when she spoke to Ms McDonald in March 2007. At this time, reasonable steps for Ms Tucker to take were to obtain expert legal and medical advice. She did so. It is not alleged by the defendants that she failed to act promptly or reasonably after March 2007.

76 The cause of action was not discoverable in August 2002 because, at that time, Ms Tucker did not know that the plaintiff's injury was caused by the fault of the Hospital. Nor, in my opinion, can it be said that she ought to have known that the plaintiff's injury was caused by the fault of the Hospital because she was not able to ascertain by looking at the plaintiff's medical records that the Hospital was at fault. It is true that had Ms Tucker obtained expert legal and medical advice in August 2002, it is very likely that she would have known whether the Hospital was at fault. However, the issue for the Court is what Ms Tucker would have found out, had she taken the reasonable steps which she ought to have taken, rather than all steps which could be characterised as reasonable in the circumstances and which might have been taken.[16] This issue is to be determined by reference to Ms Tucker's actual knowledge, capacity and circumstances in August 2002.[17]

77 Ms Tucker's circumstances in August 2002 were that she was a 28 year old single mother looking after a child suffering brain damage and epilepsy while working as an accounts clerk in a law firm. Until reading the newspaper article, she had accepted that her and the plaintiff's plight was due to "bad luck". She also believed that the Hospital's delay in treating the plaintiff with antibiotics on 23 December 1994 was due to difficulties in diagnosing that he was suffering meningococcal meningitis and that once the diagnosis was made, the Hospital acted appropriately. As I have found in paragraph 23 of this judgment, when Ms Tucker read the newspaper article, she could not understand the medical records and did not form the view either that the Hospital had been negligent or that the plaintiff had a claim against the Hospital. Neither the newspaper article nor the medical records caused Ms Tucker to alter her long held belief that the Hospital's delay in treating the plaintiff with antibiotics was due to the difficulty, as at 1994, in diagnosing meningococcal meningitis.

78 I take into account that the plaintiff's circumstances were not identical to the circumstances of the woman referred to in the newspaper article. The plaintiff visited the Hospital on 23 December 1994 whereas the woman visited the relevant hospital in 2002, nearly eight years later. Ms Tucker gave evidence that it was her understanding that meningitis was less well known in 1994. Another relevant difference was that the plaintiff stayed at the Hospital from the time of arrival (although there is a dispute as to when this occurred) and was eventually diagnosed and treated, whereas the woman referred to in the newspaper article left the relevant hospital building and was not treated. I also take into account Ms Tucker's evidence, which I accept, that in August 2002 Ms Tucker did not know anything about time limits.

79 In all these circumstances, I am not persuaded that seeking expert medical and legal advice about whether the Hospital was at fault was a reasonable step that Ms Tucker ought to have taken in August 2002, within the meaning of s 27F(2) of the LA Act.

Section 27L(1)(f) - whether plaintiff acted promptly and reasonably

80 Section 27L(1)(f) of the LA Act requires me to have regard to the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendants, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages.

81 Mr Casey submitted that, on the basis of Paget v JLT Workers Compensation Services Pty Ltd,[18] the word "know" in s 27L(1)(f) means the actual subjective knowledge of Ms Tucker, not suspicion or awareness of facts that convey information to another person. Mr Gorton submitted that Paget dealt with an entirely different statutory provision[19] and was not relevant. In my opinion, having regard to the contrast between "knows" and "ought to have known" in s 27F(1) of the LA Act, knowledge for the purposes of s 27L(1)(f) means actual knowledge.[20]

82 For the reasons already discussed, I find that Ms Tucker did not know that the acts or omissions of the Hospital, to which the injury of the plaintiff was attributable, might be capable of giving rise to an action for damages until March 2007. It was common ground before me that Ms Tucker acted promptly and reasonably in March 2007 when she was advised by Ms McDonald to seek legal advice. The writ was issued in the same month.

Section 27L(1)(g) - steps to obtain expert advice

83 Section 27L(1)(g) of the LA Act requires me to have regard to 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.

84 It was common ground before me that Ms Tucker did not seek medical, legal or other expert advice in August 2002 when she received the hospital records. I have dealt with this issue already in this judgment. It was common ground before me that Ms Tucker acted promptly to obtain medical, legal and other expert advice in March 2007. No submissions have been made criticising that advice.

85 Section 27L(2) of the LA Act makes it clear that the circumstances that I must have regard to under s 27L(1) include whether the passage of time has prejudiced a fair trial of the claim, the nature and extent of the plaintiff's loss and the nature of the defendants' conduct.

86 There is nothing in the nature of the defendants' conduct which assists me in deciding whether to extend the limitation period. In relation to the nature and extent of the plaintiff's loss, Dr Castle's certificate (which is referred to in paragraph 33 of this judgment) indicates that the plaintiff suffers from serious and permanent injuries. Mr Gorton in his submissions referred to the plaintiff as suffering "significant and permanent mental problems".

87 In relation to whether the passage of time has prejudiced a fair trial of the claim, for the reasons already discussed in paragraphs 63 to 66 of this judgment, I am of the opinion that the passage of time has not prejudiced a fair trial of the claim.

88 In all the circumstances of this case, and having regard to all of the matters set out in s 27L of the LA Act, I have concluded that, pursuant to s 27K of the LA Act, it is just and reasonable to order an extension of the period of limitation applicable to the plaintiff's cause of action pleaded in his statement of claim in relation to the events of 23 December 1994.

89 Subject to any submissions from the parties, I propose to make an order that the period of limitation applicable to the plaintiff's cause of action pleaded in his statement of claim in relation to the events of 23 December 1994, is extended pursuant to s 27K of the Limitation of Actions Act 1958 (Vic) to 21 March 2007.

90 I will hear the parties on the form of the orders to be made and on the question of costs.

[1] It appears this means "urinary tract infection".

[2] The expert medical opinion is discussed in paragraphs 29 and 30 of this judgment.

[3] See the definition of "long-stop limitation period" in s 27A of the LA Act.

[4] [1996] HCA 25; (1996) 186 CLR 541 ("Taylor").

[5] [1996] HCA 25; (1996) 186 CLR 541, 553-4 (citations omitted).

[6] [2001] VSCA 138; (2001) 4 VR 114 ("Tsiadis").

[7] [2001] VSCA 138; (2001) 4 VR 114, 115 [1].

[8] [2001] VSCA 138; (2001) 4 VR 114, 116 [5].

[9] [2001] VSCA 138; (2001) 4 VR 114, 122-4 (citations omitted).

[10] [2005] VSCA 108 ("Clark").

[11] [2005] VSCA 108, [37]-[42], [62]-[65], [80], [84]-[87].

[12] [2005] VSCA 108, [40], [64], [84]-[85].

[13] [2005] VSCA 108, [51], [84].

[14] [2006] VSC 364, [59] ("Curnow").

[15] [2008] VSC 198, [41].

[16] Callan v Healthscope Ltd [2008] VSC 88, [59].

[17] Spandideas v Vellar [2008] VSC 198, [65].

[18] [2005] VSCA 144; (2005) 12 VR 692, 699 [29].

[19] Accident Compensation Act 1985 (Vic) s 135AC(b).

[20] See Callan v Healthscope Ltd [2008] VSC 88, [47].