Plaintiff v First Defendant

1 Mr Holcombe is a stoic 42 year old truck driver. He has soldiered on despite a painful congenital leg condition. Sixteen years ago, Mr Holcombe had surgery on his leg. He now wishes to bring a medical negligence claim against the surgeon, Dr Hunt, and the hospital where the surgery occurred, Numurkah Hospital District Health Service ('the hospital'). Mr Holcombe is 13 years out of time to bring his claim. The question for determination in this ruling is whether or not to extend time so as to permit Mr Holcombe to proceed with his medical negligence claim against both Dr Hunt and the hospital.

2 This ruling considers whether it is just and reasonable to extend time in light of a series of factors. Key amongst them are Mr Holcombe's:

(a) long delay in bringing this proceeding against Dr Hunt and the hospital, and whether a fair trial can be had in circumstances where there will be presumptive prejudice, but no specific prejudice;

(b) deliberate decision not to take legal advice until early 2016. This decision occurred in circumstances where he was in pain immediately following the surgery and subsequently had good and bad days, received medical specialist advice that the surgery was inappropriate and was consequently angry about it, but was advised by his parents not to seek legal advice; and

(c) ignorance of the limitation of actions period until he sought legal advice in early 2016.

3 Mr Holcombe presented as a truthful and credible witness. He gave oral evidence and was cross-examined. He also provided affidavit evidence.[1]

4 Mr Holcombe was diagnosed with a congenital condition, Klippel-Trénaunay-Weber syndrome ('KTW syndrome') when he was six years old. His right leg is longer than his left leg and he has very large feet, one considerably larger than the other. By the time he was a young adult, it was evident that he had varicose veins in his legs. By his mid-twenties, the vein above his right knee was causing him considerable pain. His general practitioner referred him to a general surgeon, Dr Roland Hunt. Several months later, Dr Hunt operated on Mr Holcombe at the Numurkah District Health Hospital. The surgery took place on 1 March 2001. Mr Holcombe was 26 years old at the time.

5 The surgery performed by Dr Hunt was on Mr Holcombe's right leg. It is not in dispute between the parties that the surgery included saphenofemoral ligation, stripping of the long saphenous vein, division of 11 incompetent perforators and considerable stab avulsions.[2] Mr Holcombe says that the surgery was initially going to be on both legs but was confined to his right leg after complications arose. Both Dr Hunt and the hospital admit this, and refer to the bleeding that occurred during the surgery on the right leg. Dr Hunt also refers to the length of the surgery.[3]

6 On 4 March 2001, Mr Holcombe was discharged from the hospital. He deposes that when he tried to walk he was in agony. His right leg was swollen and constantly bleeding at the groin. Several days later, he was readmitted to the hospital, and remained there for another week or so. His wound was opened up and packed with gauze. The hospital admits the surgical wound and a haematoma in Mr Holcombe's groin were evacuated and packed on 8 March 2001.[4]

7 Mr Holcombe says that after the surgery he still had more pain than before and could barely walk. He says that Dr Hunt told him he could not guarantee the pain would go away and that Dr Hunt said 'I have never operated on someone with your condition.'[5] There is no affidavit evidence from Dr Hunt or the hospital.

8 Dr Hunt is a general surgeon, not a vascular surgeon. Dr Hunt and the hospital deny that reasonable medical practice required them to advise Mr Holcombe that Dr Hunt was neither a vascular surgeon nor a surgeon experienced in operating on persons with the KTW syndrome, and that the surgery should be performed by an experienced vascular surgeon with the support of a multidisciplinary team.[6] Mr Holcombe relies on an opinion of Dr Tomlinson that it would be reasonable to refer a patient with Klippel Trénaunay Syndrome to a specialist vascular surgeon in relation to options for treatment of painful varicose veins.[7]

9 In May 2001, Mr Holcombe had a consultation with Dr Penington, a plastic surgeon.[8] Mr Holcombe deposes that he understood from his discussions with Dr Penington that the surgery performed by Dr Hunt had been inappropriate for him.[9]

10 Mr Holcombe deposes that the swelling of his right leg has been continuous since the surgery in 2001.[10] The pain gradually reduced and he learnt to live with it. He says that in the period from 2001 to 2006 he had good days and bad days.[11]

11 After his consultation with Dr Penington, and during 2001, Mr Holcombe spoke with his parents about obtaining legal advice. His parents advised him against seeking legal advice on the basis of family experience and the purported difficulties of taking legal action against doctors.[12]

12 In 2006, Mr Holcombe consulted Dr Penington again. Mr Holcombe says that Dr Penington told him that the surgery had involved the stripping of the main varicose veins in his right leg and that should not have occurred.[13] Dr Penington advised him to get another job that did not involve standing and walking on concrete all day to assist in managing his leg. He also referred him for treatment at a lymphedema clinic.[14]

13 In about 2006, Mr Holcombe spoke with his parents again about getting legal advice. They provided the same advice as previously, based on the experience of a family member: there is no point in seeking legal advice as no doctor will make a claim against another doctor.[15]

14 Mr Holcombe consulted lawyers in respect of a family matter in 2006. In the course of that consultation they consulted Dr Penington concerning Mr Holcombe's medical situation and future work prospects.[16] Mr Holcombe did not seek advice from those lawyers concerning his potential medical negligence claim as he was preoccupied with family law matters. He had an extremely distressing period in 2006 and 2007 due to his marital breakdown. Sometime after this, Mr Holcombe and his new partner left Victoria for several years, returning in 2012.

15 In August 2015, Mr Holcombe says he had his first episode of cellulitis.

16 In 2015, Mr Holcombe spoke with his parents again about getting legal advice. They gave him similar advice as previously. However, Mr Holcombe decided not to accept their advice this time and to seek legal advice.[17] Mr Holcombe says that he did not accept his parents' advice as accurate because he heard an advertisement by lawyers on the radio saying that 'you could speak to them for legal advice and if there was anything to go ahead, it would be a no win, no pay [basis].'[18] He believes he heard the advertisement in 2015 when he was working as a truck driver.[19]

17 During cross-examination, Mr Holcombe was asked what caused the change to occur, that is, to decide to obtain legal advice. His evidence is:

I was starting to get a lot of problems with lymphedema, cellulitis, which caused a lot of hospital, I was quite ill at times, and I was having to take time off work.[20]

18 Mr Holcombe says that until February 2016 when he went to the emergency department at Wangaratta Hospital, none of the medical practitioners had explained to him that the lymphedema in his right leg presented a longer term risk of cellulitis.

19 Mr Holcombe's evidence is that he commenced a search for lawyers on the internet and obtained the details of his current lawyers.[21] There is some confusion in Mr Holcombe's evidence as to whether he obtained legal advice in 2015 or 2016. Mr Holcombe's solicitor, Janet Van der Kolk, deposes that Mr Holcombe first contacted her law firm on 5 February 2016.[22]

20 Where there is any discrepancy as to dates between Mr Holcombe and Ms Van der Kolk, I prefer the latter's evidence. Ms Van der Kolk provides a specific date of the first telephone call that Mr Holcombe made to her law firm and a specific date on which a formal Fee Agreement was sent to Mr Holcombe. Ms Van der Kolk deposes that the Fee Agreement was subsequently returned signed by Mr Holcombe with instructions to proceed with investigating his negligence claim. This does not affect the finding that Mr Holcombe was a truthful and credible witness. He simply became slightly confused about dates while under cross-examination.

21 On reflection, Mr Holcombe is not sure why he did not consult a legal adviser in 2006.[23] He deposes that it was not until 2016 when he contacted his current solicitors that he was aware of any time limits on pursuing a claim against Dr Hunt or the hospital.[24] I accept that evidence.

22 It is common ground between the parties that once solicitors were retained, Mr Holcombe acted promptly to bring this proceeding.

23 In May 2016, Mr Holcombe suffered another episode of cellulitis and was admitted to hospital.

24 In March 2017, Mr Holcombe developed cellulitis again and went to the accident and emergency department at Shepparton Hospital. He was there for approximately three days.

25 In April 2017, he was admitted to Cobram Hospital for seven days to treat another episode of cellulitis.

26 Mr Holcombe says his right leg is now double the size it was in August 2015. The episodes of cellulitis and increasingly swollen leg have a significant impact on his life and he believes the problem is only going to get worse. He believes the development of cellulitis threatens his ability to keep working as a truck driver. He has seven children, including two young children who reside with him and his partner. His partner and two young children are dependent on him for income.

27 Under cross-examination, Mr Holcombe gave the following evidence:

Between 2008 and 2015, did you at any stage consider seeking legal advice for a possible claim in medical negligence?---Yes.

When did you consider it?---Just before I spoke to Janet.

I see. Other than on that occasion, did you consider it at any other point? ---Only that I thought about it.

Between 2008 and 2015, were you angry about the surgery every time you suffered from more acute pain?---Yes.

And that happened, unfortunately, quite often, didn't it?---Yes.

And when it happened, you turned your mind briefly to the idea of suing the surgeon, didn't you? Sorry, repeat that? ---Yes.

When you suffered from episodes of pain, between 2008 and 2015, and you were angry about the surgery, you turned your mind to the possibility of suing the surgeon, didn't you?---Yes.

That happened pretty regularly, didn't it?---Between 2008 and 2015, more so towards 2015.

It happened increasingly towards 2015?---Yes.

It sort of reached a boiling point in 2015?---Yes.

But it had been simmering, in truth, for 14 years, hadn't it?---Yes.

Between 2008 and 2015, did you speak to anyone other than your partner about the possibility of bringing legal proceedings?---No.

Could you tell Her Honour as best you can why you didn't take steps at any time before 2015? --- I pretty much just thought, well, this is what I have been dealt, put up with the pain and live with it.

Was the pain a little worse in 2015?---Yes.

Did that cause you to fear for your employment prospects in the future?---Yes.

Is that an accurate enough summary of why you thought it was necessary to obtain legal advice?---Yes.[25]

28 Sections 27K and 27L of the Limitation of Actions Act 1958 ('the Act) provide:

27K Extension of limitation periods

(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.

(2) Subject to section 27L, the court -

(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

(c) the nature of the defendant's conduct.

...

29 Section 27K(2)(b) of the Act permits the Court to extend the limitation period if 'it is just and reasonable to do so'. Section 27L(1) of the Act sets out a non-exclusive list of factors to be taken into account. These factors include the circumstances set out in s 27L(2) of the Act.

The length and reasons for the delay on the part of Mr Holcombe

30 It has been more than 16 years since Dr Hunt performed the surgery on Mr Holcombe, and Mr Holcombe is 13 years out of time to bring this proceeding. On reflection, he is unsure why he did not seek legal advice in 2001. He thought about, and discussed whether to obtain legal advice with his parents in 2001, 2006 and 2015. After further medical advice and hearing the radio advertisement, he finally obtained legal advice in early 2016. Mr Holcombe's evidence, that has been accepted, is that he was unaware of the limitation period until then.

31 Mr Holcombe relies on Bucic v Arnej Pty Ltd[26] for the proposition that ignorance of the time limit is a reason to extend.[27] I do not agree that Bucic is authority for that proposition. Each application turns on its particular facts. In contradistinction to Mr Holcombe, Mr Bucic acted promptly to obtain legal advice after his alleged injury. It was the particular combination of factors that resulted in it being just and reasonable for time to be extended in that case, not simply that Mr Bucic was found to have no knowledge of the time limit. Ultimately the Court must have regard to all the circumstances of each particular case. Each turns on its own facts.

32 The parties both referred to the recent High Court decision of Prince Alfred College Inc v ADC[28] and to the summary of those principles in Goodenough v State of Victoria.[29]

33 Dr Hunt and the hospital say that PAC is authority for the proposition that a decision not to bring proceedings may be significant. In PAC, Gageler and Gordon JJ considered the deliberate decision by the plaintiff to bring proceedings against his boarding school master Mr Bain, who had sexually abused him, but not against the school itself. The plaintiff entered into an arrangement with the school that was to resolve issues between them. However, after a delay of 11 years, he changed his mind and then brought the proceeding against the school. The High Court held that it was wrong to extend time given the deliberate decision not to bring the earlier proceeding against the school, and then after a delay to institute this proceeding against it.

34 The facts in PAC are different to those in this proceeding. Mr Holcombe did not make a decision to resolve the case against Dr Hunt or the hospital, and then change his mind. Nor did he have lawyers advising him. It was in the context of the particular circumstances in PAC that the plurality held where a party makes a 'deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that a dispute has been laid to rest (emphasis added).'[30]

35 Another distinguishing factor between the circumstances in this case and PAC is that neither Dr Hunt nor the hospital allege any specific prejudice. The issue of prejudice is dealt with below.

36 Mr Holcombe's deliberate decision not to commence proceedings is relevant to consider in the synthesis of factors. His explanations are also relevant, including his ignorance of the limitation period.

Extent to which, having regard to the delay, there is likely to be prejudice to Dr Hunt and the hospital

37 Dr Hunt and the hospital refer to the inordinate delay and submit they will suffer presumptive prejudice from the effluxion of time. So much is not in dispute between the parties.

38 Dr Hunt and the hospital do not submit that they will suffer any specific prejudice if this proceeding goes to trial.

39 The relevant hospital records are in existence and have been obtained and disclosed by Mr Holcombe's solicitor.[31] Mr Holcombe contends, and it was not disputed, that Dr Hunt remains available to give evidence.

40 Mr Holcombe submits the nature of this proceeding is relevant. It is not a case concerning consent, but rather about whether reasonable medical practice was employed by Dr Hunt and the hospital. It is submitted that question is usually proven by expert evidence.

41 The nature of the proceeding is discussed, in some detail, in the previous section of this ruling. Mr Holcombe alleges negligence and/ or breach of retainer in respect of the surgery and advice given prior to it. Dr Hunt and the hospital deny the allegations of negligence. Given that, the content of the advice given by Dr Hunt and the hospital is also clearly in issue.

42 For completeness, I do not accept Mr Holcombe's submission that the nature of the defences weighs in favour of granting the extension. The submission was to the effect that there are material facts pleaded in the defences. This demonstrates that Mr Hunt and the hospital have actively engaged in the defences and consequently a fair trial can be held. There are, in fact, very few material facts pleaded in the defences. The inference of a fair trial cannot be drawn simply from the defences.

43 In Brisbane South Regional Authority v Taylor,[32] McHugh J held_:_

The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates. Sometimes the deterioration in quality is palpable... But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists.[33]

44 I accept that there will be presumptive prejudice because of the long delay. In PAC, the plurality held:

Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time.[34]

45 I do not consider that Dr Hunt and the hospital will be so prejudiced by the effluxion of time that a fair trial cannot be held. Mr Holcombe and Dr Hunt are available to give evidence. Hospital records are available. No specific prejudice is asserted.

Extent Dr Hunt and the hospital took steps to make available to Mr Holcombe means of ascertaining facts which were or might be relevant to his cause of action

46 No specific submissions were made in respect of this and it is not a relevant factor.

Duration of the disability or legal incapacity of Mr Holcombe arising on or after the date of discoverability

47 Submissions were made by the defendants' counsel that this was a relevant factor because of the constancy of Mr Holcombe's symptoms from 2001.

Time within which the cause of action was discoverable

48 It was common ground between the parties that the time should run from Mr Holcombe's consultation with Dr Penington in May 2001. I accept the cause of action was discoverable then.

Extent to which Mr Holcombe acted promptly and reasonably once he knew the acts or omissions of the defendants, to which his injury was attributable, might be capable at that time of giving rise to an action for damages

49 Mr Holcombe did not act promptly to obtain legal advice. He relied upon the advice of his parents rather than making his own independent enquiries. Given his ongoing pain, anger at Dr Hunt in respect of the surgery, and the advice from Dr Penington that the surgery was inappropriate, it was not reasonable for Mr Holcombe to have delayed so long in obtaining legal advice.

Steps, if any, taken by Mr Holcombe to obtain medical, legal or other advice and the nature of the advice he received

50 Mr Holcombe acted promptly to obtain medical advice, and the specialist advice from Dr Penington was that the surgery was inappropriate. However, he did not take any steps to obtain legal advice for many years.

51 Section 27L(2) of the Act indicates that in considering the matters under s 27(1) that the nature and extent of Mr Holcombe's loss and the nature and extent of the conduct by Dr Hunt and the hospital must be taken into account.

52 Mr Holcombe's current medical condition is such that his wellbeing and future employability is at risk. Whether or not his medical condition was caused by the defendants is in dispute. His loss is potentially significant.

53 The principles concerning applications to extend time under the Act in Davies v Nilsen[35] are applicable. These principles include, relevantly, that Mr Holcombe will carry the onus of establishing that it is just and reasonable to grant an extension of time.[36]

...an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime...[37]

the Court must synthesize 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.[38]

56 Mr Holcombe's loss is potentially significant, and this decision will have a significant and harsh consequence for him. The nature and extent of the plaintiff's loss is a factor that must be considered in the synthesis.[39] However, his decision not to obtain legal advice until early 2016 in circumstances where he had received Dr Penington's advice in 2001 and was experiencing ongoing pain, weighs against granting the extension of time. The consequence was that he was not informed as to the limitation of actions. The inordinate length of the delay in bringing this proceeding also weighs against granting the extension. It is not such that a fair trial cannot be held. This latter factor should not override all the other factors. All circumstances must be considered. The extension must be reasonable, as well as just. I do not think it reasonable in all the circumstances. Justice is not simply to be assessed from Mr Holcombe's viewpoint. Justice demands all circumstances be taken into account, including what is just for Dr Hunt and the hospital. Synthesizing all the relevant factors, it is not just and reasonable to extend time in this proceeding.

57 I will hear the parties on costs and appropriate form of orders.

[1] Affidavits of Shane Holcombe sworn 4 August and 17 October 2017.

[2] Statement of claim filed 30 March 2017 [19] ('the statement of claim'); Roland Hunt's defence filed 22 June 2017 [19] ('Dr Hunt's defence'); Numurkah District Health Service's defence filed 19 May 2017 [19] ('the hospital's defence').

[3] Dr Hunt's defence [22]; the hospital's defence [22].

[5] Affidavit of Shane Holcombe sworn on 4 August 2017 [13] ('the First Holcombe affidavit').

[6] Statement of claim [9] [17];Dr Hunt's defence [9] [17]; the hospital's defence [17].

[7] Report of Dr Peter Tomlinson dated 11 December 2016, which forms Exhibit 'JVK-1' to the affidavit of Janet Van der Kolk, solicitor, sworn 4 August 2017, 5.

[8] The first Holcombe affidavit [14]; Exhibit 'JVK-1' to the affidavit of Janet Van Der Kolk, solicitor, sworn on 16 October 2017 (letter from Dr Tony Penington to Dr Jonathan Salter dated 29 May 2001).

[9] Affidavit of Shane Holcombe sworn on 17 October 2017 ('the second Holcombe affidavit').

[10] The first Holcombe affidavit [16].

[11] Transcript of proceedings, Shane Holcombe v Roland Hunt & Anor (Supreme Court of Victoria, S CI 2016 05197, Ierodiaconou AsJ, 17 October 2017) ('Transcript of Proceedings'), 9.

[13] The first Holcombe affidavit [20].

[14] The first Holcombe affidavit [20]-[21]; Exhibit 'JVK-1' to the affidavit of Janet Van Der Kolk, solicitor, sworn on 16 October 2017 (letter from Dr Tony Penington to Dr Adele Abughazaleh dated 20 June 2006).

[16] Exhibit D-1, Letter dated 8 April 2008 from Morrison & Sawers to Mr Pennington.

[22] Affidavit of Janet Van der Kolk sworn 4 August 2017 [8].

[25] Transcript of proceedings, 17 (27-31); 18 (1-28).

[26] [2017] VSC 508 ('Bucic').

[28] [2016] HCA 37 ('PAC').

[29] [2017] VSC 12 ('Goodenough'), [25]-[36] (Ierodiaconou AsJ).

[30] [2016] HCA 37 [106] (French CJ, Kiefel, Bell, Keane and Nettle JJ).

[31] Affidavit of Janet Van der Kolk sworn 4 August 2017.

[32] [1996] HCA 25; (1996) 186 CLR 541.

[34] [2016] HCA 37 [105].

[35] [2015] VSC 584 [43]-[44] ('Davies').

[37] PAC [99]-[100], citations omitted.

[38] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, 123-4.

[39] Delai v Western District Health Service & Anor [2009] VSC 151.