Simms v Western Sydney Area Health Service

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 20642/00 FILE NUMBER(S) : 20643/00 LOWER COURT Master Malpass JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES No. 20642 of 2000 COMMON LAW DIVISION

Between Megan Simms Appellant And Western Sydney Area Health Service Respondent

And No. 20643 of 2000 Between Gordon Simms Appellant And Western Sydney Area Health Service Respondent Wednesday 28 May 2003

JUDGMENT 1 BURCHETT AJ: Each of these matters is an appeal from a decision of Master Malpass dismissing an application for an extension, under Subdivision 2 of Part 3 of the Limitation Act 1969, of the limitation period of three years in respect of an action for personal injuries. The appeals were conducted together, and argued on the basis that the result in the case of Megan Simms would determine the other appeal also. The appellants were at all relevant times, and are, husband and wife, and the husband's claim relies on psychiatric disabilities alleged to have arisen out of the circumstances upon which the wife sues. Those circumstances related to the treatment she received at the Respondent's Westmead Hospital in relation to the birth of her second son on 9 July 1997, resulting, it is pleaded, in her being delivered of a very severely afflicted child (suffering from cerebral palsy and spastic quadriplegia), and in Mrs Simms herself requiring a hysterectomy for a ruptured uterus and succumbing to a major depressive illness. She claims the Respondent was negligent. 2 The applications for extension of the limitation period were made under s. 60C which empowers the court, in certain cases, "if it decides that it is just and reasonable to do so, [to] order that the limitation period for the cause of action [here, one 'founded on negligence'] be extended for such period, not exceeding 5 years, as it determines". In the exercise of that broad discretion in a matter such as the present, the court is bound to apply the provisions of s. 60E (1): "In exercising the powers conferred on it by section 60C …, 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."

It will be observed that the lettered paragraphs of s. 60E(1) do not state exclusively what factors may be required to be considered, since the opening words of the subsection preserve the generality of the discretion. 3 Having regard to the way the appeals were argued, I shall, in what follows, refer to Mrs Simms as "the Appellant". The Appellant relies particularly on her allegedly negligent treatment between 2 July 1997 and 9 July 1997, so it is convenient to treat the primary limitation period as one that expired on 2 July 2000, although a medical report on which she relies suggests it may be that some allegedly negligent acts or omissions may also have occurred on dates somewhat earlier than 2 July 1997. The statement of claim and notice of motion seeking extension of the period were not filed until 23 November 2000, some four and a half months out of time. Although this delay cannot be described as insignificant, it is, in absolute terms, not so very much longer than the period of "about two months" which was described by Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530 as "relatively minor". Also, to the extent that, despite the wording of s. 60E(1)(b), it is necessary to consider the effect of the total delay from 2 July 1997, this effect must be seen in the light of the fact that the infant's cause of action is not, and was not at any time in danger of being, time barred, so the Respondent must always have been subject to the necessity to retain records and to endeavour to shore up the memories of its witnesses by the taking of statements. And if, notwithstanding these considerations, the Respondent claimed some prejudice, it was for it to put forward the evidence of it: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547. See also the comments of Mason P in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197-198. 4 As to the relevant period, s. 60E(1)(b) does not in terms require a comparison between the availability of evidence if proceedings had been commenced promptly and the effect on that availability of the actual date of their commencement, but a comparison between what would have been the position if the proceedings had been "commenced within the limitation period" and the effect flowing from the actual date when they were commenced. Mason P drew attention to this feature of the drafting of the provision in Sydney City Council v Zegarac at 197, 200; see also Salido (ubi cit. supra), where Gleeson CJ made the comparison with the position "had the time-limits prescribed by the statute been complied with". Of course, that is not to say the effect of the whole period may not also be taken into account, as a circumstance of the case, but the comparison for which the Act specifically provides in s. 60E(1)(b) is something to which the court must "have regard" where and "to the extent that [it is] relevant to the circumstances of the case". In the circumstances of the present case, this comparison, if the Master did have regard to it, could only have been favourable to the Appellant. There was no reason to think any prejudice in respect of the availability of evidence, whether specific or potential, was caused by the short delay in question, and none was suggested. But what the Master said in his reasons as to the topic of prejudice was: "There is no evidence of actual prejudice and I am not satisfied that actual prejudice has been demonstrated. The possibility of what has been described as presumptive or general prejudice cannot be discounted."

If the last sentence of this passage refers to the comparison required by s. 60E(1)(b), it involves a finding, made in such vague terms that the weight attached to it cannot be assessed on appeal, which is not supported by any evidence and could not have been properly inferred. If, on the other hand, the Master was looking at the effect of the whole period of delay, on the authorities I think that was a relevant general consideration, but it needed to be considered in the different light thrown on it by the comparison the Act explicitly required the court to make. Also, the particular circumstances of this case which reduced any likelihood of a "general" prejudice, since the Respondent's agents had to turn their minds to the relevant events anyway in relation to the infant's claim, could not be left out of account. 5 Finally, on this point, although an absence of any significant prejudice will not entitle an applicant to an order, it is a most important consideration. In Preston and Newsom on Limitation of Actions (4th ed., 1989) at para 4.4.4, it is stated, in the course of an illuminating discussion: "[I]f the delay (however long) does not seriously affect the evidence, the power will generally be exercised." Save only that he thought it would be better to omit the words "however long", this statement was expressly approved by Parker LJ in Hartley v Birmingham City District Council [1992] 1 WLR 968 at 980. Similarly, in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, which, of course, was decided after the Master delivered his reasons in this case, Ipp J (with whom Spigelman CJ agreed) said (at 224): "I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 at [34]-[36]; Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 at [9]. Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused."

Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 354, to which his Honour referred in this passage, was a case where the trial judge had expressly disbelieved the applicant as one who had "reconstructed and recrafted the evidence … to suit his application", but Heydon JA (with whom Mason P. and Young CJ in Eq agreed) commented at [8] that "the reconstruction of evidence in itself would not usually appear to be a material factor", and went on to hold that, assuming "delay was not explained," that was not decisive, and an absence of prejudice to the defendant led to the allowance of an extension of time under s. 151D of the Workers Compensation Act 1987 which, though not identical, is similar to s. 60C. In the other case cited by Ipp J, Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 130, Heydon JA (with whom, again, Mason P and Young CJ in Eq agreed) said that the Applicant had shown "in a sense a lack of diligence", his delay being "explained to an extent". His Honour then said: "So far as the appellant has not satisfactorily explained delay, his default does not tell decisively against the application. Forensic diligence is a relevant factor, but not an end in itself or a necessary precondition for success. The more important question is whether the respondent is at risk of prejudice." 6 Nevertheless, despite his conclusion effectively negativing prejudice to the Respondent, and despite the absence even of a suggestion of prejudice, the Master concluded on other grounds that the application should be refused. In doing so, he held that the Appellant was informed of the existence of a limitation period of three years before it expired, by a letter sent to her by a solicitor dated 3 September 1997, who "may have" (emphasis added) also told her orally during a visit one week after the trauma of her emergency caesarean and while she was still in hospital. According to the Appellant, this letter was not in her papers, and she did not recall receiving it. Of course, it is quite possible that, about two months after the birth of so damaged a child, and the occurrence of her own rupture to the uterus requiring a hysterectomy, the Appellant did receive the letter and later failed to recall the relevant statement in it couched in legal language on the fifth page, especially as the matter of immediate concern to her in that letter was the solicitor's refusal to act without the payment of fees she could not afford to pay, and at that time no medical evidence had been obtained to justify an allegation of negligence. Although the Master makes no mention of it, the evidence before him unsurprisingly included the report of a psychiatrist evidencing her "major depression" and "chronic depressive illness" even after a few years, which would certainly be likely to have affected her ability to concentrate and remember, and was stated by the psychiatrist, when he saw Mr and Mrs Simms just five months before the hearing, to be at such a level that she was "functioning on a very narrow and limited basis in caring for her two children and her husband " and was "suffering major incapacity". 7 Although the Master had the important advantage of seeing and hearing the witness, his failure to take into account the obvious implications both of the Appellant's disastrous situation as a mother and of the psychiatrist's opinion seems to me to raise two problems: (1) Did he fail to make proper use of his advantage within a well established exception (see Paterson v Paterson (1953) 89 CLR 212 at 222, 224; S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 at 47; Watt or Thomas v Thomas [1947] AC 484 at 487-488) to the rule concerning the inviolability of findings upon oral evidence in an appeal court? (2); At all events, did he fail "to have regard to all the circumstances of the case", as required by s. 60E(1)? I shall return to the first point after referring to passages in the reasons that suggest the Master did not in fact ground his decision on demeanour, but on a view of her affidavits, which the court on appeal is in as good a position to interpret as the court below. Here, it is sufficient to note that the Master criticized the Appellant's professed inability to remember some things, but gave no reason for his implicit rejection of her explanation in cross-examination: "I have a lot on my mind; I have a disabled child", which he did not mention, just as he did not mention the strong evidence of her serious psychological condition which plainly supported her claim that, since the trauma of the birth, she "had some difficulty with memory, concentration". 8 But the first point to be made is that, if the Master's finding about the Appellant's knowledge is fully accepted, and every implication adverse to her is drawn from that knowledge, it remains true that she instructed two further firms of solicitors after 3 September 1997, first one firm about 6 months later, and then when they failed to act with vigour, a second firm, to act for her upon proposed proceedings against the Respondent. Although they moved slowly, the former of these two did obtain a report from a professor of obstetrics, Prof. Beischer, which was supportive of her claim. That was received in about August 1998, and it would really only be then that she could rationally be considered to know she had a viable claim. In her own words, in cross-examination, her purpose in getting it was: "To find the truth". When twelve months passed without further action from her solicitors, she instructed a fresh solicitor ("her solicitor") on about 2 September 1999, well before the end of the three years from the accrual of a cause of action that arose on 2 July 1997, telling him she was "not happy with [her] previous solicitors because they had not taken steps that were quick enough, to [her] mind". As she put it in her affidavit, "I became concerned in about September 1999 that things were not progressing with my claim", a statement which was not challenged in cross-examination, either as to the fact of her concern or as to its justification. But rather than examine the light cast by it on the question who was responsible for the delay that had occurred up to that point, the Master focussed on a statement in the solicitor's affidavit that he received his instructions on 2 November 1999 as raising a question with respect to the correct date. It was a very slight question, for there was much reference at the hearing to a conference on 3 October 1999 and to a letter written to the Appellant as his client by the solicitor on 16 October 1999, so there could be no real doubt that the solicitor's affidavit contained a not uncommon confusion of the similar sounding words November and September. In any case, instructions on 2 November would still have been given eight months before the expiry of the primary limitation period. The matter was then in the solicitor's hands, and it would be natural for a client to rely on him as the expert, especially a client burdened as the Appellant was. (To avoid misunderstanding, I should note that none of the firms involved prior to the launching of these appeals is to be identified with the solicitors now acting for the Appellants.) 9 It is in this situation that the part played by the Appellant herself in the "reasons for the delay" (s. 60E(1)(a)) had to be assessed by the Master. Yet there is no recognition in his judgment of her reasonable entitlement to rely on her lawyers, having instructed them, both during the period when they were the firm secondly engaged and during the period when the solicitor was acting for her. Sometime between September 1999 and March 2000, the Appellant said her solicitor did tell her there was a limitation period, although she "wasn't sure when it was going to expire", and she did not "tell [her] solicitor to put on a statement of claim before the time expired" (she had instructed him to proceed with her claim). Pressed with the question "You just left it to your solicitor?" she responded; "Well, that's what they are", meaning, plainly enough, that the task was theirs. Our system of the administration of justice depends very greatly on the performance of their duties by solicitors. In an often-cited speech on the occasion of his swearing in as Chief Justice of the High Court, reported at (1952) 85 CLR XI, Sir Owen Dixon said: "The work of solicitors in the administration of justice has the greatest possible importance… . …[T]here is no more important contribution to the doing of justice than the elucidation of the facts and the ascertainment of what a case is really about, which is done before it comes to counsel's hands."

What the courts recognize, the parties are entitled to recognize. When a client puts a case in the hands of a solicitor, reasonable - not, of course, excessive - reliance may be placed by the client upon the solicitor. This reasonable reliance has been reflected in numerous authorities, including Martin v Nominal Defendant (1954) 74 WN (NSW) 121, a decision of Walsh J, and Jess v Scott (1986) 70 ALR 185, where many of the cases are collected. In Morton v Jools (1992) Australian Torts Reports 61,297, Carruthers J, dealing with an appeal similar to the present, but under s. 60G of the Limitation Act , which also poses the test whether it is just and reasonable to make an order, said (at 61,301) that the Master "placed much emphasis on what he considered to be unexplained delay upon the part of the plaintiff". But, his Honour said (at 61,302), "she relied at all relevant times upon the advice of her solicitor". His Honour concluded ( ibid ): "The learned Master seems to have overlooked entirely that the plaintiff was entitled to place reliance upon the advice which she received from her solicitor, even though she may have had in her possession facts which may be thought to have provided sufficient evidence to justify the commencement of proceedings at an earlier date against the proposed defendants. She was entitled to rely upon the advice which was tendered to her. See, for example, Clark v Pain Manufacturing Pty Limited (1961) SR 565. Thus, in this aspect of the case I respectfully take the view that the Master erred in principle." 10 The case to which Carruthers J referred, Clark v Pain Manufacturing Pty Limited [1961] SR (NSW) 565, contains in the joint judgment of Evatt CJ and Sugerman J (at 569) a statement of the position of an applicant whose reliance had been on his solicitor: "He acted with reasonable promptitude in placing his claim in the hands of the Public Solicitor and there were then some eighteen months to run before the "prescribed period" would expire. He was in touch with the Public Solicitor's office from time to time. He was reasonably entitled to assume that his claim would be attended to and all appropriate steps taken, and that an action would be instituted within the eighteen months still available, or that if for some reason, such as his own means or the absence of reasonable grounds for his claim, the Public Solicitor was not prepared to grant legal assistance, he would be given reasonably early warning within the ample time still available for instituting an action. He was certainly not bound to assume that nothing whatever would be done about his claim during the remainder of that time and for a further year thereafter."

That was a case where, as appears from the judgment of Macfarlan J (at 571), the Plaintiff was aware of the time limit, but "did not press the Public Solicitor to find out exactly what had happened to his case, as he presumed that all steps reasonably necessary to be taken on his behalf would be taken by that office." 11 In Salido (at 531), Gleeson CJ referred approvingly to more recent authority than Clark v Pain Manufacturing: "In Hartley v Birmingham City District Council [1992] 1 WLR 968; [1992] 2 All ER 213, Parker LJ said (at 979; 223-224) that the proper question for a judge to ask in dealing with an application for leave to proceed is whether it would be equitable to allow the action to proceed, that is to say, whether it would be fair and just to do so. In that case the court held that where, as a result of a slip by the plaintiff's solicitors, an action was commenced a few days out of time, the circumstance that the plaintiff would have had a cause of action for negligence against her solicitors did not stand in the way of an extension of time. It was not fair and just to confer on the defendant's insurers a windfall gain as a result of the solicitors' error."

In another English decision, Halford v Brookes [1991] 3 All ER 559, Russell LJ, delivering the first judgment for a unanimous Court of Appeal (Lord Donaldson of Lymington M.R., Nourse and Russell LJJ), said (at 567), of a Plaintiff who had relied on her solicitors: "[I]t would not be right to regard any part of the delay as being her responsibility."

In Victoria, too, in Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at 13, Smith J (with whom Brooking and J.D. Phillips JJ expressed their substantial agreement) said, of a Plaintiff's delay: "He can, however, in this case exonerate himself because he was, in my view, entitled to rely, as he did, upon the competence of his legal representatives." His Honour supported this statement by the citation of a number of instructive analogous authorities relating to notices of action. It should be added that his Honour's view may also be supported by reference to the textbooks in this area: Preston and Newsom , op. cit . para 4.4.8; McGee on Limitation Periods (2nd ed., 1994) 141; Prime and Scanlan on The Modern Law of Limitation (1993) 170. 12 To the extent that, nevertheless, a particular applicant's failure to insist upon a solicitor taking urgent action will be a part of "all the circumstances of the case", being "relevant" within s. 60E(1), an evaluation of what is "just and reasonable" cannot leave out of account the lay client's expectation that legal proceedings will be slow. It is not only Shakespeare (see Hamlet, Act 3 Sc.1 - the famous soliloquy) who may see "the law's delay" as a known "calamity of …life", and an inevitable weariness. It is notorious, unfortunately, that ordinary people do expect a lawsuit to take a long time. So they may not react when it does. If to that, in the present case, be added the Appellant's medical condition and preoccupation with her injured child, it seems to me the responsibility of her solicitor for the delay which occurred was plainly a matter the Master was bound to take into account as a circumstance of very considerable weight favouring the Appellant's case. In so far as this delay was due to the solicitor's inaction, it would have been unreasonable to hold it against his client. The collateral consequence that the Appellant may have an alternative remedy against the solicitor, while a factor, has little weight. 13 The solicitor swore an affidavit in support of the application, in which he stated he received the file of the previous solicitors (which, the evidence shows, contained the report of Prof. Beischer) on 10 March 2000, almost four months within the primary limitation period. He briefed senior and junior counsel "on or about 17 March 2000", but senior counsel's brief was returned on 13 September 2000, and other senior counsel was briefed on 20 September 2000, with whom and the Appellant the conference to which I have already referred was held on 3 October 2000. An attempt was made to file the statement of claim on 24 October 2000, but there were difficulties with the Registry, and it was not accepted until 24 November 2000, when it was filed with the notice of motion for an extension of time. The solicitor's explanation of his failure to ensure the filing of a statement of claim before the expiry of the limitation period was direct: "I failed to record the expiration of the limitation period in my diary". In cross-examination, he said he had not drawn the attention of the original counsel to this aspect of the matter either. He said he did raise it when he first briefed his new senior counsel: "I had become aware by that stage that, through my error, that had occurred", ie. the expiry of the limitation period. He had become so aware from a discussion with junior counsel immediately before. 14 Although the Master suggested "the plaintiffs may have a good cause of action against [the solicitor]", treating this as a factor against the Appellant, but "not [of] great weight", thereby implicitly acknowledging the Appellant's reliance on the solicitor, which she would have to show in such an action, he described the explanation for the delay as "inadequate". Specifically of the solicitor, the Master says: "Broadly speaking, his position seems to be that he was at all times aware of the limitation period and that it had only a short time to run. ….What he does say falls well short of adequately explaining inter alia the delay that took place during that period." But how should he have explained what he plainly acknowledged was a serious oversight? If he is sued, he may indeed have no defence. However, from the point of view of the Appellant's explanation of her delay vis-à-vis the Respondent, the solicitor's admitted lapse is an appropriate and sufficient ground for her application on the authorities to which I have referred. The Master's reasons show no recognition of this at all. For anything that appears from those reasons, the only relevance of the part played by the solicitor in the delay was as an added weight, if a small one, in the scale weighing against the Appellant: cf Comcare v A'Hearn (1993) 119 ALR 85 at 87-88. 15 So far as the Appellant herself was concerned, the Master described her as "an unimpressive witness" of whom he "formed the impression she would say whatever she thought would advance her case". But in support of that damning comment he did not offer an example, unless it is to be gleaned from his comments about her affidavits - which really have little to do with demeanour. Whether the statements in them were contradicted by other evidence can, of course, be assessed on appeal by reading them and the other evidence. Although the Master said he "observed the demeanour of all witnesses", his reasons for disbelieving the Appellant seem to depend on inconsistencies he perceived in her evidence, both in her affidavits and on cross-examination. But what did these perceived inconsistencies amount to? 16 The Master referred, in particular, to paragraphs 5, 12 and 22 of her original affidavit: "5. I commenced proceedings in this Honourable Court by the filing of a Statement of Claim on 27 November, 2000. I am now aware that the Statement of Claim was filed more than three (3) years from the date of the allegation [sic] of negligence. …… 12. I am aware that the limitation period expired on or about 9 July, 1997. I was informed by Mr Poulden by letter dated 16 October 2000. ….. 22. I was not aware that there was a three year limitation period until I became aware that it expired. I have not been involved in any personal injury litigation prior to this claim."

Plainly, to infer from the expression "now aware" in paragraph 5 that the Appellant was implying she was not aware on 27 November 2000 would be perverse, since she directly states in paragraph 12 that she was informed of the true position in writing "by letter dated 16 October 2000". In any case, both dates were well after the relevant expiry date. As to that date, paragraph 22 is explicit that she "was not aware that there was a three year limitation period", not that she was unaware there was some relevant limitation period, "until [she] became aware that it [had] expired". But the Master seemed to think there was great significance in an admission in cross-examination that the letter of 16 October was preceded by a conference with her solicitor and counsel on 3 October in which she learned what was confirmed in the letter. That took the information back 13 days - still over two months after the limitation period had expired. 17 However, the real point held against the Appellant appears to have been paragraph 22, which the Master described as "false". The basis for this appears to be the following finding: "During cross-examination, she reluctantly conceded that she had become aware of the limitation period prior to its expiry. She gave oral evidence of being told of it by [the solicitor]. There was also oral evidence that she was told of it during the conference had on 3 October 2000". The last sentence in this passage suggests the Master had overlooked that 3 October 2000 was not before the period expired, but later, and awareness then was perfectly consistent with paragraph 22. As for what the Master saw as a reluctant concession of awareness in cross-examination, the Appellant's concession was not that she was aware the period was three years, or of its precise beginning and end, or that it would expire on 2 July 2000, 9 July 2000, or any other particular date, but that she was aware there was "a very short period of time in which to file [the] statement of claim", but she "wasn't sure when it was going to expire". What she was told, at a time of which she was uncertain, but the suggestion was it was about March 2000 when the file was received from her former solicitors, or between September 1999 when she instructed her solicitor and then, was "that there was a limitation period in which to bring a claim". She said her solicitor "did tell [her] that". The generality of what, according to her evidence, she was told is not contradicted by the solicitor who, against his own personal interest if he had told her the precise position, disclaimed any memory of telling her; and it is consistent with the fact that the solicitor did not, before receiving the former solicitors' file with Prof. Beischer's report, have access to evidence fixing the date of the accrual of a cause of action, that he may not have stated a precise date for the expiry of the limitation period. Thus, upon analysis of the evidence to which he referred, the Master's emphatic statement that paragraph 22 is "false" is revealed as having no firm foundation: it rests at most on an ambiguity. The statement that the Appellant was not aware of a "three year limitation period" is not a statement that she was not aware some period applied, compliance with which she appropriately entrusted to her solicitor. 18 I am unable to discover in the reasons or the evidence any other substantial basis put forward or apparent for the severe generalized strictures passed upon the Appellant by the Master. At the least, it must be said that nothing found against the Appellant provides any sort of counterweight for the positive explanation of her delay that she relied on her legal advisers, or for the significance of the fact that no prejudice to the Defendant was shown. Even if her explanation of her delay were lacking to some degree, it will be recalled that the Court of Appeal, in passages I have cited from Itek Graphix Pty Ltd v Elliott, Malone v New South Wales National Parks and Wildlife Service, and Nowlan v Marson Transport Pty Ltd, made it clear an unsatisfactory explanation of delay need not be decisive, the more important question being prejudice, which is ordinarily a paramount consideration. 19 In my opinion, the Master's failure to give any real weight to lack of prejudice, or to the responsibility of the solicitor, vitiated his decision. It was flawed in principle. 20 A further error of principle in the Master's judgment, which was rather overlooked in the argument before me, and on which for that reason I do not rest this decision, was a failure to give any weight to s. 60E(1)(h), "the extent of the Plaintiff's injury or loss". Plainly, this element was singled out by the legislature as an indicator of where any prejudice in relation to the Plaintiff might in truth lie - if the claim be tiny, the Plaintiff's prejudice upon denial of an order would be slight; if the claim be very large, so also would the prejudice to the Plaintiff be large, though, of course, in a particular case, it might still not prevail against other factors. The Master did not even mention the very serious nature of the personal injuries suffered by the Appellant. With this may be contrasted the reasoning of Sheller J.A. in Schering-Plough Pty Limited v Page [2002] NSWCA 4 at [15], [20], [21] and [36]. 21 Accordingly, the discretion is open to be exercised upon appeal, and having had regard to all the circumstances of the case, including each of the factors listed in s. 60E(1) (except that there was no evidence of any conduct falling within para (f)), the court should make orders in favour of the Appellants. The appeals should be allowed and the orders made below should be set aside. In lieu thereof, it should be ordered, pursuant to s. 60C of the Limitation Act 1969, that the limitation period for the cause of action alleged by the Plaintiff in each proceeding be extended for an appropriate period, not exceeding five years. I direct that the Appellants bring in on a date to be fixed short minutes of orders to reflect these reasons. Those orders should provide for the Appellants to pay the costs of the applications to the Master, which sought an indulgence, but the Respondent should pay the costs of the appeals.

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