Reznitsky v Rothonis

[2021] NSWSC 281

Supreme Court of NSW|2020-10-12

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-10-12

Catchwords

186 CLR 541 Guthrie v Spence [2009] NSWCA

Source

Original judgment source is linked above.

Catchwords

186 CLR 541 Guthrie v Spence [2009] NSWCA

Judgment (33 paragraphs)

[1]

Judgment

HER HONOUR: This is an application to extend the limitation period in relation to a personal injury claim.
At the time of the hearing of these proceedings on 12 October 2020, there were numerous applications before the Court. The plaintiff had filed an amended summons dated 5 February 2020 seeking to extend the limitation period, as well as a notice of motion filed 1 June 2020 seeking summary judgment and a review of two Registrars' decisions. The defendant had filed a notice of motion dated 26 August 2020 seeking that the amended summons be dismissed.
The plaintiff is Boris Reznitsky. The first defendant is Theodore Rothonis and the second defendant is Alexander Aristoff. The third defendant is Andrew Small and the fourth defendant is Harold Kwiatek. All four defendants are medical general practitioners (GPs) who practice at Waterloo Medical Centre. The plaintiff relied upon his affidavits dated 30 September 2019, 28 May 2020, 5 February 2020 and 22 November 2020. He also provided written submissions. The defendants have elected not to rely upon affidavit evidence.
On 2 December 2020, after the hearing of these proceedings, various notices of motion, including the plaintiff's notice of motion filed 1 June 2020 seeking summary judgment and a review of two Registrars' decisions, were listed before the Registrar at 10.00 am. The plaintiff appeared by audio-visual link at 10.36 am. By that time, the Registrar had already dismissed those notices of motion and the proceedings pursuant to r 13.6(2) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
Rule 13.6(3) of the UCPR states that r 13 does not restrict any other power of the court to dismiss proceedings. For the reasons which follow, I have decided that the plaintiff's amended summons dated 5 February 2020 should be dismissed. It follows that the proceedings should be dismissed. Hence, it is unnecessary to determine the other matters raised in both parties' notices of motion.

[4]

The plaintiff's disability

Before I deal with the plaintiff's application for an extension of time, it is necessary to first consider the plaintiff's claim that he suffered a disability such that the running of the limitation period should be suspended.
Both ss 11 and 52 of the Limitation Act are applicable here. They relevantly read: 11 Definitions … (3) For the purposes of this Act a person is under a disability: … (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition, … 52 Disability (1) Subject to subsections (2) and (3) and subject to section 53, where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or … …, the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. …
The starting point to making a determination under s 11(3)(b) of the Limitation Act is set out in Kotulski v Attard [1981] 1 NSWLR 115 ("Kotulski"), where Slattery J stated at [117] to [118]: "Section 11(3)(b) is concerned with two classes of person: 'One who is incapable' (which conveys the concept of total inability) and the other 'substantially impeded in the management of his affairs in relation to the cause of action … by reason of disease or impairment or physical or mental condition.' According to the Shorter Oxford Dictionary to 'impede' means to obstruct in progress or action; to hinder or to stand in the way of. 'Substantially', in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. 'Mental condition' which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings. It seems to me that the expression 'mental condition' is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. When dealing with the words 'unsound mind', which were not defined in the relevant statute, Lord Denning MR in Kirby v Leather [1965] 2 QB 367, at p 383 said: 'So here it seems to me in this statute a person is 'of unsound mind' when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do.' I am of opinion that…to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action…"
The New South Wales Court of Appeal has approved the principle stated by Slattery J in Kotulski in a number of cases: see State of New South Wales v Bennie [2005] NSWCA 172; New South Wales v Harlum [2007] NSWCA 120; Saunders v Jackson [2009] NSWCA 192; Olive v Johnstone [2006] NSWCA 21 and Guthrie v Spence [2009] NSWCA; (2009) 78 NSWLR 225 at [144].

[8]

Sections 60C and 60E of the Limitation Act

Next, the plaintiff has relied upon ss 60C and 60E of the Limitation Act (the secondary limitation period). They read: "60C Ordinary action (including surviving action) (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines. … 60E Matters to be considered by court (1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay, (b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available, (c) the time at which the injury became known to the plaintiff, (d) the time at which the nature and extent of the injury became known to the plaintiff, (e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission, (f) any conduct of the defendant which induced the plaintiff to delay bringing the action, (g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received, (h) the extent of the plaintiff's injury or loss. …"
The most convenient way to set out the plaintiff's case at its highest in relation to ss 60C and 60E of the Limitation Act is by reference to his submissions and his affidavits dated 30 September 2019 and 22 November 2020. The plaintiff's evidence and submissions are repetitive. As best as I can, I will summarise the plaintiff's evidence and submissions in relation to the matters to be considered by the Court under s 60E and then deal with s 60C of the Limitation Act.
On the plaintiff's own evidence, the incident occurred on 23 February 2002 and within days, he attended his primary GP. He complained of having suffered spinal injuries and cognitive disabilities. So far as I can discern, he has not articulated any specific complaints against the first, third and fourth defendants. As previously stated, as I have made a finding that the plaintiff has not suffered a disability pursuant to s 52 of the Limitation Act, the limitation period has not been suspended.
As the plaintiff seeks to rely upon ss 60C and 60E of the Limitation Act, the limitation period commenced running from a few days after the incident at the latest. As such, the limitation period expired three years after 28 February 2002, namely 28 February 2005. Pursuant s 60C(2), the limitation period can be extended for a further five years, that is from 28 February 2005 to 28 February 2010. On 5 February 2020, the plaintiff filed his original summons, which is about 10 years outside the limitation period prescribed in ss 60C and E of the Limitation Act. Even by invoking ss 60C and E, the plaintiff is statute barred and his application to extend the limitation period fails and should be dismissed.
However, if I am wrong, I will briefly address ss 60C and E of the Limitation Act. Section 60E refers to specific matters. I shall deal with both parties' submissions and my response in order.

[18]

The defendants' submissions

The defendants noted that in his submissions, the plaintiff refers to "the date a cause of action is discoverable" with reference to the injuries he says occurred in the incident on 23 February 2002. The defendants submitted that there is no expert evidence that supports a submission that "the injuries", however characterised, were caused by the defendants.
The defendants further submitted that while the plaintiff elsewhere states that "the nature or extent of the injuries became known to him in August-September 2018", this is inconsistent with his submissions and affidavits with regard to his earlier knowledge of "the nature or extent of the injuries". The plaintiff says that he took reasonable steps to obtain legal assistance before filing the application, but there is no adequate or reasonable explanation or evidence as to reasonable steps.
There is also no objective evidence, including expert evidence, to support the plaintiff's submissions that he was "supposed to spend many months in the hospital under medical supervision being bed bound, back in year 2002." Nor is there evidence to support his claim that "if [he] had the spinal injuries/disorders rectified and diagnosed back in year 2002, [he] would apply for Disability Assessment Scheme about 17 years earlier - back in 2002, without being suffering for years and without putting [his] life at risk".
The defendants submitted para [5] the of plaintiff's submissions in fact support his awareness and knowledge of the nature and extent of his back injury or spinal condition. They state that: 1. "[o]ver the years [he] experienced severe pain in back… as well as the restrictions of movements, due to the injuries sustained during the incident"; 2. "[t]hose medical conditions effected (sic) [his] life, [his] wellbeing and [his] work capabilities"; and 3. "[f]rom the time of the incident [he] had spent substantial time off the work. [He] was forced to resign the number of times, because of inability to do the work and having ongoing back pain".
The plaintiff's submissions as to complaints and negative radiology test results further support his awareness and knowledge of the nature and extent of his back injury or spinal condition.
The defendants submitted that the Court would not be satisfied that the plaintiff had sustained the "questionable spinal injuries", as he says he was sent for radiology examinations "with the same negative results". They say the Court would find that the plaintiff making "numerous complaints about the state of [his] health, related to the questionable spinal injuries" is inconsistent with him being "unaware about having sustained those spinal injuries".
According to the defendants, it appears the plaintiff was in fact aware of a spinal injury condition as he made "numerous complaints about the state of [his] health, related to the questionable spinal injuries" and "was sent for radiology examinations (X-rays, MRIs) with the same negative results." It follows that the plaintiff was aware of his condition and test results.
The defendants submitted that in the circumstances, the plaintiff's submission that "[d]uring that time the doctors failed to provide the patient, with adequate, clear and relevant medical information in relation to the spinal injuries and also extent of those injuries that badly affected his health, life and wellbeing" cannot be maintained. The plaintiff's evidence about when the injury became known to him, and his cause of action more broadly, are manifestly unclear and not adequately defined.

[30]

Just and reasonable to extend time

If I am wrong in relation to disabilities, the last issue to be determined after making my findings pursuant to ss 60C and 60E of the Limitation Act is whether it is just and reasonable to extend the limitation period.
In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541, the High Court considered the nature of the discretion conferred by s 31(2) of the Queensland Limitation of Actions Act 1974. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. In Taylor, Toohey and Gaudron JJ stated at 548: "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent."
To put it another way, the Court must consider whether it is just and reasonable to grant the plaintiff an extension of time. The ultimate test in any such application is whether a fair trial can be conducted notwithstanding any delay. In weighing prejudice, its impact upon a fair trial is the primary focus: see Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199.
Because of the lengthy delay of about 15 years in bringing these proceedings, the defendants will suffer presumptive prejudice. However, the defendants have not provided any evidence of actual prejudice.
In terms of whether the plaintiff has a viable cause of action, the defendants have submitted that, based on the plaintiff's reply submissions and the preliminary outline submissions filed 25 August 2020, he has presented insufficient evidence to adequately establish his case. I note that there are no specific allegations directed to the first, third and fourth defendants. Nor has the plaintiff produced supporting medical documentation, including the GP's clinical notes, medical imaging and the Job Capacity Assessment disability report to which he refers.
The plaintiff has also failed to provide any medical expert report on liability, which is required by UCPR 36.16 to allow the Court to assess, in positive terms, whether a reasonable cause of action lies with any real prospects of success. This expert's report in addition to the doctor's treatment also needs to address matters raised in s 5O of the Civil Liability Act: see South Western Sydney Local Health District v Gould [2018] NSWCA 69. Section 5O sets out the standard of care for professionals as follows: "5O Standard of care for professionals (1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
As the plaintiff has not produced any supporting evidence to support his assertions against the defendants, some 15 years after he says his injury became known to him, I am not satisfied that he has demonstrated on the balance of probabilities that he has a viable cause of action. In the exercise of my discretion, the application for an extension of time under the Limitation Act should be refused.
The result is that the plaintiff's application for an extension of the limitation period fails. It follows that the proceedings should be dismissed.
As foreshadowed, as I have dismissed the proceedings and in light of the Registrar's orders on 2 December 2020, it is unnecessary to determine the other matters raised in both parties' notices of motion.

Reznitsky v Rothonis

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Judgment (33 paragraphs)

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Cases Cited (8)