Wright v Central Coast Area Health Service & 2 Ors

Central Coast Area Health Service (First Defendant) PARTIES : The State of Queensland (Second Defendant)

Hunter Area Health Service (Third Defendant) JUDGMENT OF : Master Harrison

Mr McAuley (Plaintiff and mentioned for first Defendant)

COUNSEL : Mr A R Ashburner (Second Defendant)

Mr L Ellison (Third Defendant) Paul A Curtis & Co (Plaintiff)

SOLICITORS : Ferguson Holz (Second Defendant)

Hunt & Hunt (Third Defendant) CATCHWORDS : Extension of time - s 151D(2) WCA - s 31 Limitation of Actions Act (Qld) - Queensland employment - Employment with third defendant LEGISLATION CITED : Limitation of Actions Act 1974 (Qld) - ss 11, 31 Workers Compensation Act 1987 (as amended) - s 151D(2) John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625; (2000) 74 ALJR 1109; (2000)_ 203 CLR 503 Dandashli v Dandashli (NSWCA 16 December 1996, unreported) Atikullah v Sefton (2001) 53 NSWLR 574 In Re Saunders [1996] 3 WLR 473 Grove v Bestobell Industries Pty Limited [1980] Qd R 12 CASES CITED : Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 Salido v Nominal Defendant (1993) 32 NSWLR 524 Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 Seib v orton [2000] NSWCA 139 McLean v Sydney Water Corporation [2001] NSWCA 122 Itex Graphix Pty Limited v Elliott [2002] NSWCA 104 DECISION : (1) The plaintiff's application that the limitation period be extended against the second defendant is refused; (2) The plaintiff's application that leave be granted to commence proceedings against the third defendant is refused; (3) Paragraph (1) insorfar as it relates to the third defendant and paragraph (2) of the amended summons are dismissed; (4) The plaintiff is to pay the second and third defendants' costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12905/2001 - DIENA WRIGHT v CENTRAL COAST AREA HEALTH SERVICE & 2 ORS

JUDGMENT (Extension of time - s 151D(2) WCA and s 31 Limitation of Actions Act (Qld)) 1 MASTER: The plaintiff sues her employers in negligence. She alleges that during the course of her employment with the defendants as a speech therapist she was exposed to radioactive beams which caused her to develop cancer. By amended summons filed 14 September 2001 the plaintiff seeks an order that leave be granted to commence proceedings as against the second defendant, the State of Queensland, pursuant to s 31 of the Limitation of Actions Act 1974 (Qld); and secondly, that leave be granted to commence proceeding as against the third defendant, Hunter Area Health Service pursuant to s 151D(2) of the Workers Compensation Act 1987 (as amended). 2 On 24 October 2001 the plaintiff filed a statement of claim against the Central Coast Area Health Service (proceeding 20856/2001) pursuant to leave which had previously been granted. Those proceedings relate to the plaintiff's period of employment between 1 August 1986 to 12 August 1988. Between 15 August 1988 to 18 June 1989 the plaintiff was employed by Darling Downs Health Authority and between 10 July 1989 to 19 October 1990 the plaintiff was employed by Hunter Area Health Service. Leave to extend the limitation period is sought in relation to these two employers. 3 The plaintiff relied on her affidavit sworn 7 September 2001, two affidavits of her solicitor Paul Anthony Curtis sworn 11 September 2001 and 30 November 2001 and the affidavit of Tara Lyn Ryan sworn 13 September 2001. The second defendant relied on the affidavit of Stephen John Ferguson sworn 23 November 2001. The third defendant relied on the affidavit of Sue Doyle sworn 17 April 2002 and Justine Mary Mathews sworn 25 June 2002. The plaintiff and Ms Doyle were cross examined. I observed the plaintiff carefully while she was being cross examined. I formed the view that she was a truthful and articulate witness. Ms Doyle also gave truthful evidence.

4 The plaintiff was born on 11 February 1965 and is presently 37 years of age. She is married and has three children. In 1986 the plaintiff received her qualifications from Queensland University. The plaintiff is a qualified speech pathologist and is currently employed at Toronto Private Hospital as a Grade V speech pathologist. From 15 August 1998 until 28 June 1989 the plaintiff was employed by Darling Downs Health Authority in Queensland as a Grade II speech pathologist (Qld Public Hospitals award). The plaintiff performed her duties at Toowoomba General Hospital and Baillie Henderson Hospital. Between 10 July 1989 and 19 October 1990 the plaintiff was employed as a speech pathologist at the John Hunter Hospital at Newcastle. 5 Her duties with both the second and third defendants were similar. The plaintiff carried out radiology tests known as modified barium swallow tests (the tests) upon neurological and head injured patients with swallowing difficulties. During the period that the plaintiff was working for both the Queensland and New South Wales Area Health Services, the plaintiff's evidence is that the radiation beam was turned on for up to 15 minutes per test session. She performed varying numbers of these tests from approximately one to five per week. 6 The routine followed in these tests has been described by several speech therapists. It is as follows. The speech pathologist prepares a range of six to seven food/drink barium textures and each of these substances is given to the patient to swallow. The speech pathologist holds a cup to the patient's mouth while the radiation beam is turned on. The result is essentially a video x-ray of a person swallowing with views recorded from front on and laterally. The test is conducted in collaboration with a radiologist. It does not commence until the radiologist is present. It is the radiologist who operates the x-ray machine and determines the amount of exposure to radiation. The speech pathologist remains in the radiology room at all times with the patient. A radiographer who operates the video machine and TV monitor is initially present in the x-ray room. Once the test is commenced he/she goes outside the room and operates the controls from another room. 7 Throughout the plaintiff's employment with the second and third defendants when she was conducting such tests she wore a lead gown which was low cut at the neck. She was not provided with any protective device for her neck region such as a thyroid guard. It was not until 1992 that the plaintiff became aware of the existence of a thyroid guard. From that time on the plaintiff wore such a guard. 8 On 4 November 2000 the plaintiff was informed by Professor Delbridge that her neck and thyroid looked as though they had been "radiation affected" but he would need to wait to get pathology back in a few days. It is not disputed that the 4 December 2000 was the first occasion on which the plaintiff had been informed that there was a direct connection between the condition from which she was then suffering and her exposure to radiation suffered in the course of her employment with Central Coast Area Health Service, Darling Downs Health Authority and Hunter Area Health Service [Plaintiff's aff para 40]. 9 On 19 December 2000 the plaintiff first consulted her solicitor regarding her entitlements to compensation in respect of the injuries alleged to have been sustained by her in the course of her employment with the defendants. On that day the plaintiff instructed Mr Paul Anthony Curtis to act on her behalf. A summons was filed on 13 September 2001 about 10 months after the initial instructions were given.

The period of Queensland employment with the second defendant - 15 August 1988 to 28 June 1989 10 It is common ground that the case against the second defendant is governed by Queensland legislation. Any cause of action the plaintiff may have occurred in Queensland. In John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625; (2000) 74 ALJR 1109; (2000) 203 CLR 503 the High Court decided that in tort the appropriate law to be applied is that which applies in the State where the incident occurred, the lex loci delicti. In this case the cause of action in tort as against the second defendant occurred in Queensland. 11 The second defendant submitted firstly that there is no jurisdiction to grant an extension of the limitation period because no proceedings have been filed or alternatively that an extension should not be granted because it is significantly prejudiced and it will not be able to obtain a fair trial. 12 In relation to the second defendant's first submission, s 11 of the Limitation of Actions Act 1974 (Qld) (the Act) provides: "Actions in respect of personal injury Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue or a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose." 13 The second defendant submitted that although a draft statement of claim was annexed to the affidavit of Paul Curtis, the plaintiff's solicitor sworn 11 September 2001, the statement of claim was not filed. Thus, according to the second defendant the plaintiff has not brought an action for negligence but rather has sought an application for an extension of the limitation period. Further, according to the second defendant even if time was extended and the plaintiff filed her statement of claim the defendant would file a defence raising the limitation period and the action would be futile. The second defendant submitted that the language in s 11 of the Act was such that it makes retrospective leave impossible. 14 The second defendant referred to two New South Wales cases, Dandashli v Dandashli (NSWCA 16 December 1996, unreported) and Atikullah v Sefton (2001) 53 NSWLR 574. Dandashli concerns a leave application in respect of an extension of time pursuant to s 52(4) of the Motor Accidents Act (NSW). In Dandashli the defendant submitted that s 52(4) imposes a statutory condition precedent to the commencement of proceedings and that proceedings commenced out of time without prior leave of the court must be dismissed. Handley JA stated that where a statute imposes a condition precedent of a procedural nature which must be satisfied prior to the commencement of proceedings, it will be difficult for a court to treat the condition as a condition subsequent which can be satisfied after proceedings have been commenced as that will be contrary to the intention of Parliament as expressed in the statutory language. His Honour referred to In Re Saunders [1996] 3 WLR 473 where Lindsay J undertook a comprehensive review of decisions from the 19th century (including Australian cases) where proceedings commenced without leave contrary to statutory provisions are not nullities but irregularities capable of being cured by a subsequent grant of leave. Lindsay J focussed on the provisions requiring leave of the court before proceedings are commenced or continued against a bankrupt or company in liquidation. 15 Handley JA concluded that s 52(4) did not employ emphatic language that would make retrospective leave impossible. Leave to appeal was refused. 16 Sefton involves the statutory notice provisions under the Motor Accidents Act and is of little assistance here, particularly as it is the Queensland law that is applicable. 17 The plaintiff referred to a more relevant Queensland decision of Grove v Bestobell Industries Pty Limited [1980] Qd R 12 where Dunn J stated: "A question which arises is whether an applicant must apply to a court for an extension of a period of limitation before bringing an action in that court. The Full Court of Victoria, in McManamny v Hadley [1975] VR 705, inclined to the view that, in that State, the legislation contemplated the making of an application before proceedings are instituted. But the certain matters are established, to "order that the period within which an action on the cause of action may be brought to be extended", and the Queensland legislation is significantly different. By the Queensland legislation, the court is given discretion to "order that the period of limitation for the action be extended". There is nothing in the section which suggests that the discretion is only to be exercised with respect to actions not yet commenced, and it is a remedial section. I therefore think that the applicant has proceeded correctly; an application may be made either before or after commencing proceedings." 18 According to Grove the plaintiff can apply for an extension of time even though the action has not yet been commenced. Hence the second defendant's submission concerning jurisdiction fails. The plaintiff is entitled to bring this application and subsequently commence proceedings. 19 The plaintiff relies on s 30(1)(a) and s 31(1) and (2) of the Act. The relevant portion of s 30(1)(a) states: "Interpretation For the purposes of this section and sections 31, 32, 33 and 34 -

(a) the material facts relating to a right of action include the following - (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii) the identity of the person against whom the right of action lies;

(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused;

(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty." 20 Section 31(1) and (2) of the Act states: "(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limited for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly." 21 Section 31 confers a discretionary power, and in addition to satisfying the provisions of s 31(a) and (b), the plaintiff must show that it is in the interests of justice to extend time. The onus of satisfying the court that the discretion should be exercised in favour of the plaintiff, rests on the plaintiff - Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Taylor involves the extension of time under these Queensland legislative provisions. 22 As previously stated on 4 November 2000 during the course of an inpatient visit by Professor Delbridge at the Mater Hospital, the plaintiff was informed by Professor Delbridge that her neck and thyroid looked as though they has been "radiation affected" but he would need to wait to get pathology back in a few days. It is not disputed that the 4 December 2000 was the first occasion on which the plaintiff had been informed that there was a direct connection between the condition from which she was then suffering and her exposure to radiation suffered in the course of her employment with Central Coast Area Health Service, Darling Downs Health Authority and Hunter Area Health Service [Plaintiff's aff para 40]. I am satisfied that in November 2000 the plaintiff became aware of a material fact of a decisive factor. The plaintiff became aware that the occurrence of negligence caused her personal injury. The application was made on 14 September 2001. The plaintiff acquired this knowledge within the requisite time frame referred to in s 31(2). She has passed the threshold provision. 23 The more critical issue is that of prejudice caused by delay. In Taylor McHugh J referred to the effects of delay in the now often quoted passage which states: "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period." 24 and; "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it." 25 and; 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 an extension." 26 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms.

"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." 27 In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made "the chances of a fair trial unlikely" or whether the defendant would suffer "significant prejudice". 28 The plaintiff sought legal advice shortly after she was advised of her medical condition in November 2000. In February 2001 the solicitor wrote to the second and third defendants. In March 2001 the plaintiff's solicitor made a claim for workers compensation with the defendants. The solicitor continued to provide medical certificates and other documentation to the defendant. The plaintiff's solicitor also obtained medical reports of Professor Bruce Robinson dated 25 June 2001, A W Workwise dated 20 July 2001 and Dr Gagora dated 6 August 2001. On 14 September 2001 the summons and proposed statement of claim was filed. They were served on the second defendant on 19 September 1991. The solicitor acted diligently between receipt of instructions and the filing of this application. There was no undue delay in the plaintiff's camp once the plaintiff became aware of the connection between her injury and the radiation exposure. 29 The second defendant did not put any evidence of actual prejudice. However I accept that with the passing of 12 to 13 years witnesses' memories will have faded. Further, I have taken into account that the plaintiff was in the employ of the third defendant for a relatively short period of 10 months and it is to this short period of time that witnesses will need to direct their attention. 30 The hospital employs a number of radiologists and radiological registrars. In 1988/89 there were about five to six radiologists rostered on duty each day who serviced up to six to eight x-ray rooms. Each day when the test was scheduled to take place a different radiologist (or registrar) would be present (t 3.53). The radiologists and radiographers were rostered from different units within the area health service. The plaintiff estimated that she would have worked with more than 20 radiologists and about 10 to 15 radiographers (and a similar number of radiology registrars) in the Darling Downs Area Health Service. The plaintiff has not been able to provide the names of any radiographers employed by the third defendant at the relevant time but has provided the name of a former radiology registrar. During the test the radiographer would usually start recording and then go outside where there was a glass pane. He or she could then monitor the equipment from outside the room. 31 The plaintiff's personnel file at Toowoomba Base hospital is available. The most critical witnesses who would be able to give evidence about the procedure followed during the modified barium swallow tests during the relevant time are the radiologists who controlled the level and time of the radiation exposure during the tests, and to a lesser extent the other speech pathologists who also carried out those tests. Dr Lynette Hodgson was the other speech pathologist who carried out those tests at Toowoomba Base Hospital. She is now working at a regional unit attached to Toowoomba Base Hospital. She was the head of speech pathology at the relevant time. Dr Hodgson as head speech pathologist may be able to provide evidence of the procedure she followed when conducting such a test and whether there was a standard routine. She could also give evidence as to whether a thyroid guard was used by speech therapists in 1988/89 and if so, what, if any, instructions were given to them in relation to the use of a thyroid guard in relation to carrying out the tests. Dr Albert Chong who was a radiology registrar now resides in Brisbane. He may have been involved in administering these tests. However, it is not known whether statements have been obtained from these witnesses. Hence the state of their recollection of these relevant events are not known. Ms Cathy Roberts, speech pathologist at Toowoomba Base Hospital now resides in Perth. Ms Ritamay Roberts, private speech pathologist is currently still in the employ of the defendant. It is not known whether hospital employment records would reveal the names of the radiographers and radiologists who were employed by it at the relevant time. Even if the records could identify them some 12 years later their contract address may not be known. 32 Other witnesses that have been located are Dr David Bilbrough, previously a residential medical officer and now a general practitioner in Toowoomba, Dr Craig Halliday, previously gastroenterologist and acting director of medical/rehabilitation services and now working at St Andrews Private hospital in Toowoomba and Mr Anthony West, previously physiotherapist and now in private practice in Toowoomba. As they were not directly involved in the conduct of the test their evidence will be of little value. 33 I have found this case against both defendants to be borderline one. As such I have given the issues a great deal of consideration and reflective thought. I have reluctantly come to the view that due to the effluxion of time and due to the lack of evidence from radiologists concerning the level and amount of radiation exposure that occurred during the tests, the defendant will be unable to properly investigate its case. As previously stated, although Dr Chong has been identified and traced, the state of his recollection of relevant events is also not known. This gap in the evidence cannot be filled in by evidence from Lynette Hodgson, particularly as her state of recollection of events is unknown. It is my view that the third defendant will not be afforded a fair trial and will be significantly prejudiced. It is my view that it is not just and reasonable to extend the limitation period. The plaintiff's application to extend the limitation period against the second defendant fails.

The period of employment with the third defendant - 10 July 1989 to 19 October 1990 34 I turn now to consider whether leave to commence proceedings should be granted. Section 151D(2) of the Workers Compensation Act 1987 (NSW) (as amended) provides: "a person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay for compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken." 35 The authorities clearly establish that the onus is on an applicant for extension of time to satisfy the court that it is just and reasonable to extend the time. The starting point for examination of the way in which this discretion should be exercised is Salido v Nominal Defendant (1993) 32 NSWLR 524. Salido was recently considered by the Court of Appeal in light of the intervening High Court decision of Taylor in Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 and Seib v Morton [2000] NSWCA 139. In Wynter the Court of Appeal held that the effect of the High Court decision in Taylor is that an application for an extension of time under the limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122. 36 In Salido, at 532 Gleeson CJ set out the principles to be considered in the exercise of the discretion. Although these principles refer to s 52(4) of the Motor Accident Act, they are equally applicable to s 151D(2) of the Workers Compensation Act. 37 They are: "1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence.

2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.

3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's legal representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.

4. The nature and extent of any forensic disadvantage to a defendant resulting from the plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material." 38 The recent decision of the Court of Appeal in Itex Graphix Pty Limited v Elliott [2002] NSWCA 104 addresses the question of the approach the court should adopt when exercising its discretion under s 151D(2) of the Workers Compensation Act. Itex is a case where the respondent has not suffered prejudice by the delay and the applicant has not diligently pursued his or her claim. Ipp AJA, (with whom Spigelman CJ and Sheller JA agreed) rejected the view that the real question to be answered was that posed by Toohey and Gummow JJ in Brisbane South Regional Health Authority, namely, whether the delay had made the chances of a fair trial unlikely. Instead, the question that has to be asked is what is fair and just (per Gleeson CJ in Salido), or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). The justice of the case is to be determined with regard to its own individual circumstances, and the rationales of the limitation period that barred the action. The Court affirmed the application of the principles set out in Salido requiring the applicant to explain the delay, to deal with the question of prejudice, to show that the cause of action is not futile and to establish that it would be fair and just to grant the leave. 39 In Itex the court noted that often a failure to satisfactorily explain the delay will not be decisive, and ordinarily the issue of prejudice will be of paramount importance. Nevertheless, in the circumstances of the case, the court held that to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate and fully informed decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation. Accordingly, leave was refused. In this case it is not disputed that the plaintiff has a real case to advance, nor is it the situation that the plaintiff made a deliberate and fully informed decision to allow the statutory period to expire. Rather the third defendant submitted that it is actually prejudiced and will not be able to obtain a fair trial. This delay puts the third defendant at a forensic disadvantage. 40 During the period that the plaintiff was working for Central Coast Area Health Service she would have performed up to approximately nine tests per week. As previously stated, it was on 4 November 2000 that the plaintiff became aware that there was a connection between the condition from which she was suffering and the exposure to radiation encountered during her employment with the third defendant. There has not been a lack of diligence by the plaintiff or plaintiff's legal representatives in taking these proceedings once she became aware that she had a case at common law. 41 Ms Sue Doyle, Claims Officer with the Hunter Area Health Service, stated that the turnover of radiologists was significant. In 1993 the personnel records were computerised and there is no means available by which radiologists can be identified before that date. The pre-1993 manual records could not be located. However during cross examination Ms Doyle admitted that she had not checked with archived documents at the government repository for those documents (t 14). The plaintiff cannot recall the names of radiologists that she worked with while employed by the third defendant. The radiologists and radiographers were similarly rotated throughout the Hunter Area Health Service as with the Darling Downs. Even when employees' names were given to Ms Doyle she had not checked the telephone book to attempt to locate them. However, I accept that Ms Doyle did not see it as her role to do so, rather that was left to the third defendant's solicitor to conduct these investigations. 42 In relation to the plaintiff's employment with Hunter Area Health Service for the period 10 July 1989 until 19 October 1990 several speech pathologists have been located and have provided statements. Ms Jenny Johns, speech pathologist, previously head of speech pathology department at Royal Newcastle Hospital, is now the vice president of the NSW branch of the Speech Pathologists Association Australia and a private practitioner at Newcastle. Ms Megan Holland (now Alston) and Ms Vanessa Sciacca, speech pathologists, previously fellow colleagues of the plaintiff, are now private practitioners in Newcastle. Megan Holland also carried out the tests (t 9.23). Ms Alston has provided a statement wherein she gives evidence on the procedure followed during the tests. Further, like the plaintiff and Ms Johns, Ms Alston confirms that she only wore a gown but no thyroid guard until 1992. According to Ms Alston this was consistent with clinical practice at this time as thyroid guards have only recently been used by speech pathologists conducting these tests. 43 Ms Johns has also provided a statement. Both Ms Johns and Ms Alston agreed that the time the beam was on during the test varied. Ms Johns estimated the usual amount of time that the beam was on for 3 to 5 minutes whereas Ms Alston estimated that the beam was usually on for 1 to 2 minutes in total. They did not agree with the plaintiff that the beam could be on for up to 15 minutes. Ms Alston stated that to definitely determine the radiation exposure the video of the test would need to be reviewed and some of them may still be available at Rankin Park. 44 Unfortunately, no radiographer or radiologist who conducted these tests during the relevant period has been identified. I accept that they are unlikely to be found from the defendant's records. The radiologists are important as they possess the knowledge of the level and extent of the radiation exposure omitted during the tests. 45 Dr Ian Boyd, previously resident medical officer at Rankin Park Hospital has been located. He is now a general practitioner in Belmont. Dr Richard Adams and Dr Margaret Filips-Schuk, geriatricians for Hunter Area Health Service have been contacted but they do not remember the plaintiff. Statements have been obtained from Dr Kevin Grant, (geriatrician now retired) and David Gosling. As these practitioners were not directly concerned with the testing procedure their evidence is not relevant to the issues that will be in dispute at trial. 46 Unlike the second defendant, two speech pathologists have provided comprehensive statements as to the procedure followed during the tests conducted in 1989/90. However, the radiologists who conducted the tests have not been identified. There is no independent record that noted the amount of the radiation exposure during those tests. It is my view that the gaps in the evidence cannot be overcome by the evidence of the speech pathologists. I appreciate that a fair trial does not mean an ideal one. Nevertheless, it is my view that the third defendant is significantly prejudiced. It will not obtain a fair trial. It is not just and reasonable to grant leave to commence proceedings against the third defendant. 47 Costs are discretionary. Costs normally follow the event. The plaintiff should pay the defendants' costs. 48 The court orders:

(1) The plaintiff's application that the limitation period be extended against the second defendant is refused.

(2) The plaintiff's application that leave be granted to commence proceedings against the third defendant is refused.

(3) Paragraph (1) insofar as it relates to the third defendant and paragraph (2) of the amended summons are dismissed.

(4) The plaintiff is to pay the second and third defendants' costs. **********

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