Supreme Court New South Wales Medium Neutral Citation: Naboulsi v Western Sydney Local Health District [2024] NSWSC 744 Hearing dates: 7 June 2024 Date of orders: 20 June 2024 Decision date: 20 June 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) Ms Naboulsi has leave, nunc pro tunc, to commence these proceedings (2) The Health District bear Ms Naboulsi's costs as agreed or assessed unless the parties approach to be heard within 14 days with short written submissions. Catchwords: LIMITATION OF ACTIONS – whether discretion to extend limitation period to be exercised pursuant to ss 60F, 60J of the Limitation Act 1969 (NSW) – whether pleaded case is weak – whether failure to call evidence from former legal representatives relevant – whether there can be a fair trial – extension granted Legislation Cited: Civil Procedure Act 2005 (NSW), s 64 Limitation Act 1969 (NSW), ss 60F, 60G, 60I, 60J Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 2 Boorman and Ors v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576 Desjardins v Smith [2024] NSWSC 540 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) ALJR 857; [2023] HCA 32 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Category: Principal judgment Parties: Rouba Naboulsi (Applicant) Western Sydney Local Health District (Respondent) Representation: Counsel: E Romaniuk (Applicant) S Kettle (Respondent) Solicitors: Drexler Litigation Lawyers (Applicant) Paulina Moncrieff (Respondent) File Number(s): 2023/00442440 Publication restriction: Nil JUDGMENT 1. In 1997, Ms Naboulsi had her gallbladder removed during a laparoscopic procedure undertaken at Auburn Hospital, which is now conducted by the Western Sydney Local Health District. Ms Naboulsi seeks to pursue damages which she claims she has suffered as a result of a surgical clip left in her body during that procedure, which later migrated and caused her injury. This only came to light when an MRI scan was performed in December 2020. 2. This judgment deals with the motion by which Ms Naboulsi seeks orders under ss 60F and 60J of the Limitation Act 1969 (NSW), extending the time for commencement of these proceedings nunc pro tunc. That is, as if the orders had been made when she commenced the proceedings in 2023. Her motion is supported by the affidavits which she and her solicitor, Mr Moutafis, have sworn, as well as by medical records and the expert reports of Dr Conrad. 3. The orders sought are opposed, the Health District relying on the affidavit of its solicitor, Mr Guenette, as well as on certain records. On its case, the extension cannot be fairly granted, Dr Conrad's opinions being merely speculative and the passage of time now precluding a fair trial. Conclusion 1. I have concluded, the unchallenged evidence being considered in light of the statutory requirements, that it is just and reasonable to grant the extension of time that Ms Naboulsi requires, despite the matters on which the Health District relied. 2. Given the matter of which she was unaware in August 2003, that being the time the limitation period which ordinarily applies to her claim expired; what came to light only in December 2020; what Ms Naboulsi then did, which resulted in the commencement of these proceedings within 3 years; and that I am not persuaded that any trial will now be unfair, I am satisfied that the extension must be granted. Issues 1. There is no issue about the Court's power to make orders of the kind sought. The Limitation Act provides a procedure for causes of action accruing on or after 1 September 1990, which permits a further discretionary extension of the applicable limitation period where a plaintiff was "unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time": s 60F. This is such a case. 2. In issue between the parties is whether the extension can justly be granted in Ms Naboulsi's circumstances, the Health District contending as it does that her pleaded case is weak; that her failure to call evidence from her former legal representatives is relevant; and that there can no longer be a fair trial, given the effect which the passage of time has had on its ability to defend her claims. It being unable to locate those who performed the 1997 surgery in which she claims a metal clip was left in her body, which has caused her injury, pain and damages in the ensuing years. The parties' cases 1. Ms Naboulsi's case rests on her having first become aware that a clip had been left in her body in December 2020 when an MRI had to be stopped when it was located in her body and then having then sought both medical and legal advice. That finally resulted in the commencement of these proceedings and the extension application. 2. While her former solicitor obtained senior counsel's advice, her case was not prosecuted as she expected. She had then obtained other representation and in July 2023 received advice from her current legal representatives, after a medico-legal opinion had been obtained from Dr Conrad. 3. Dr Conrad had examined her extensive medical records and identified the intraoperative error in 1997 when the clip was left in her body, which Ms Naboulsi came to understand caused the ongoing pain which she has long suffered, despite investigation into its cause and ongoing treatment which she received for years. 4. The limitation period in respect of a claim arising from such an error having long expired, it was ss 60F to 60J of the Limitation Act which permitted the grant of her extension application. The identification of the clip only in 2020 explained Ms Naboulsi's delay in bringing the proceedings, she having begun pursuing her ongoing abdominal pain in 2003. None of the medical practitioners she had consulted over later years about her continuing pain became aware of what had been left in her body, until the 2020 MRI was undertaken. Nor did she. 5. It was not until after Dr Conrad's opinion was obtained in 2023 that she became aware of her rights and these proceedings were commenced. 6. Senior counsel's advice had been obtained in September 2022, but unbeknownst to Ms Naboulsi, her then legal advisers did not act effectively to prosecute her claim. She came to appreciate that she needed to seek other advice, and with the encouragement of family members, then instructed her current solicitors. 7. They acted promptly to investigate the propensity of items being left in a body during surgery and the results, commencing these proceedings after obtaining expert advice from Dr Conrad. A second report had been later obtained in order to address questions raised by the Health District about the basis of his opinions. 8. While a trial about Ms Naboulsi's claim could not now be perfect, it could still be a fair one. Hospital records did not identify the error which had been made. But nor did they account for the surgical clips used in the 1997 surgery, referring only to a surgical clip package. 9. Ms Naboulsi's medical records documented her ongoing complaints about pain, the cause of which was not found despite investigation, including by a laparoscopy. The 2020 MRI had to be stopped because of the clip which was only then found in her body. 10. In the result, there could be no material or presumed prejudice for the Health District, including in respect of quantum matters, which could now preclude a fair trial of Ms Naboulsi's claims. While they concern injuries which are not catastrophic nor negligible, they are sufficient to warrant an award of damages of some substance, given the many years of pain she has endured. 11. The Health District did not accept this. 12. Even though it did not suggest that it had obtained expert advice, the Health District did not accept that what had been found in Ms Naboulsi's body during the MRI scan was a surgical clip used in the 1997 surgery. It also contended that the records did not support the speculative opinions Dr Conrad had arrived at, Ms Naboulsi having undergone other procedures during which a metal object could have entered her body. 13. It also relied on Ms Naboulsi's failure to call evidence from her former solicitors to explain the delay in commencing these proceedings after the MRI scan. It contended that she had waived any privilege which she had in their evidence, relying on Boorman and Ors v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576 and Desjardins v Smith [2024] NSWSC 540 at [46]-[47] and [74]-[77]. 14. The Health District also contended that her pleaded case was weak and not supported by Dr Conrad's opinion, there being in truth no independent support for the clip having caused her any injury or impairment. 15. The Health District also complained that it is now subject to actual and presumptive prejudice, with the result that it cannot fairly defend itself. 16. This was advanced on the basis of its views about the deficiencies of Dr Conrad's reports; the passage of time since the 1997 surgery and its effect on the memories of the operative surgeons, who it could not locate; the multiple procedures and investigations which Ms Naboulsi has since undergone; it being impossible to determine that the metal clip found in her body was a type or brand used in 1997,or that it remained there; there being a number of other potential sources of the object identified by the MRI scan in 2020; and it not being located on later scan. 17. The Health District also contended that there was no evidence that Ms Naboulsi had suffered extensive injuries or disabilities. The evidence did raise many relevant, unanswered questions. These Include whether surgical clips were used in other procedures which Ms Naboulsi had undergone; what medical advice she has received over time; what had otherwise impacted her employment; and what caused her to be unable to do the heavy lifting about which she complains. The statutory requirements 1. I am satisfied that Ms Naboulsi has satisfied the requirements of s 60I of the Limitation Act, which relevantly specifies the matters about which the Court must be satisfied before granting an extension to be: (a) the plaintiff— (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii). 1. On an application such as this, s 60G(2) of the Limitation Act empowers the Court to grant the extension sought, "if it decides that it is just and reasonable to do so". An applicant is not, however, required to establish on the evidence that the onus to prove the case sought to be advanced will be met at trial. 2. It follows that while the matters which the Health District advanced, including the claimed weakness of Ms Naboulsi's case and its view about the unfairness of any trial after such a long delay, all arise to be considered in determining whether it is just and reasonable to grant the extension, that on the current evidence she could not prove her claim, does not preclude the grant of an extension. The claimed weakness of Ms Naboulsi's pleaded case 1. The pleaded particulars of Ms Naboulsi's claim include that: 1. it was during the 1997 procedure that the hospital's medical practitioners "failed to reasonably locate, implant, and set the surgical clips" so that they would not migrate; 2. thereby they failed to perform the laparoscopic procedure with the surgical technique and skill to be expected from a reasonably competent medical practitioner; 3. the result was the performance of the surgery failing to accord with that to be expected of a body of reasonably competent peers; 4. that exposed Ms Naboulsi to the risk of harm that the clip would migrate and cause pain, discomfort, restriction, limitation and incapacity; 5. reasonable precautions against that risk included performing the procedure in accordance with that expected from a reasonably competent medical practitioner undertaking such surgery, according to what was expected of reasonably competent peers; 6. the medical practitioners had failed to inform Ms Naboulsi about the known risk of such a procedure being that a clip would migrate, causing pain, discomfort, restriction, limitation and incapacity; 7. the result was that when she began experiencing such symptoms in her abdominal region after the 1997 surgery, she was not aware of the risk of migration of the clip and could not raise that with treating practitioners; 8. after the procedure, when Ms Naboulsi attended the Hospital for treatment for her pain, discomfort, restriction, limitation and incapacity, it failed properly, or at all, to examine its records in order to identify her surgical procedure, or to identify the risk of migration of the clip to which she had been exposed, or to investigate and treat her on that basis; 9. the result was that she was exposed to the further risk of harm that delay in identification of and treatment of the real risk to which she had been exposed, so that by the time it was identified, there was no available remedial procedure, because the clip had become embedded and attached to her pathology; 10. reasonable precautions to address that risk had thus included identifying the risk of migration and investigating and treating her on that basis; and 11. these matters resulting in a failure to exercise reasonable care in the provision of medical services. 1. Ms Naboulsi also pleads that it was the result of all of this negligence that she has suffered injury, loss and damage. 2. I am unable to see that Ms Naboulsi's case, so pleaded, is weak. Whether she can meet the onus which falls upon her at trial to prove her case on the balance of probabilities, cannot presently be determined. But it does not have to be. There was no suggestion that her affidavit evidence was not credible, or did not accord with her extensive medical records. That it would not be accepted at trial is not apparent. 3. While the Health District contends that Dr Conrad's reports are deficient, it must be accepted that they support the extension application. They also explain why it was that after his first report was obtained, that Ms Naboulsi commenced these proceedings and pursued her extension application, as the Limitation Act permitted her to do. 4. On Ms Naboulsi's medical history and Dr Conrad's unchallenged evidence, having examined her extensive medical records, it is apparent that the metal object which was only discovered in her body during the aborted 2020 MRI scan, could have been left in Ms Naboulsi's body during the 1997 procedure. It was undoubtedly introduced into her body during some surgical procedure. There is no suggestion that any of the over 800 pages of her medical records suggest that any metal clips or other metal objects which could have fallen into her body were used during any of the other procedures which Ms Naboulsi later underwent. 5. That a metal object left in her body could have been the cause of the discomfort and pain in her abdominal region which she began experiencing some years after the 1997 procedure and continued complaining about for years afterwards, was not questioned and must be accepted. 6. A 2006 Xray identified surgical clips in place at the site where the gallbladder surgery had been undertaken in 1997. But the clip later found in 2020 was not then identified. It was in 2006 that Ms Naboulsi underwent the second laparoscopy and in 2008 that she underwent a caesarean. They were identified in submissions as the other two possible times that the metal object could have entered her body. 7. That it is possible that Ms Naboulsi's pain had some other cause than that for which she contends may be accepted. But so too must the possibility that the object was present at the time of the 2006 Xray, but not identified then, nor later, when CT scans were taken. In his reports Dr Conrad explained the difficulty of locating such objects in the body. That was not challenged. 8. It will be for Ms Naboulsi to prove, on the balance of probabilities on the evidence led at trial, that the object located in 2020 had been in her body since the 1997 procedure. At this stage, the unchallenged evidence of the only expert who has examined the medical records and given an opinion about when the object entered her body, supports that conclusion. 9. In the result, I am unable to accept that her pleaded case is weak or incapable of being proven. The failure to call evidence from Ms Naboulsi's former legal representatives 1. I also do not consider that Ms Naboulsi not having called evidence from her first legal representatives precludes the grant of the extension she seeks. 2. I do not accept that she has impermissibly delayed bringing her proceedings, or that she is a "dilatory plaintiff" of the kind discussed in other cases: see Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 2, for example. 3. Nor did she simply allow time to pass, while sitting on her hands. The unchallenged evidence is that the possibility that ongoing pain was the result of a metal clip left in her body during the 1997 procedure, only came to her attention after its presence was identified when the 2020 MRI scan had to be stopped. 4. There is no suggestion that she had any legal advice before the 2020 MRI scan. Ms Naboulsi explained what steps she then took to pursue medical and legal advice. Unlike what arose to be considered in Boorman and Desjardins, I do not consider that she thereby waived any legal professional privilege which she had in her legal advice. She was not satisfied with her first representatives when her matter was not pursued, as she obviously expected it would be and so then took advice from her current representatives. 5. It was only after she then obtained Dr Conrad's advice that she came to decide that she should bring these proceedings. This evidence establishes that she did not delay after the 2020 MRI. 6. There is no inconsistency in Ms Naboulsi relying on the steps she so pursued, and not calling evidence from her former solicitors. Her unchallenged evidence explains what she did in order to bring these proceedings when she did. Can there be a fair trial? 1. Nor is it possible to conclude that there cannot be a fair trial. 2. That over twenty years have passed since Ms Naboulsi's 1997 procedure will undoubtedly have an impact. However, of itself, that cannot preclude the extension sought, given what the statutory regime permits. 3. The question of the unfairness of a trial, many years after the events in question, arose to be considered in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) ALJR 857; [2023] HCA 32, albeit there in the context of other provisions of the Limitation Act and s 64 of the Civil Procedure Act 2005 (NSW), which empowers a court to stay proceedings. 4. In that case, it was in the context of s 6A of the Limitation Act in which the need for a fair trial arose to be considered. S 6A has removed any limitation period for an action for damages for death of or personal injury to a person resulting from an act or omission that constitutes child abuse. But the courts' powers to stay proceedings when a fair trial cannot be conducted are retained: GLJ v Diocese of Lismore at [34]. The result is that the passage of time alone, in such cases, is not a basis on which it can be concluded that a fair trial cannot be conducted. 5. A fair trial is one that "will not involve undue unfairness or oppression to a party, protects the integrity of the adversarial system of justice and the maintenance of the rule of law": GLJ v Diocese of Lismore at [20]. 6. There it was emphasised that the concept of a fair trial does not depend only on considerations personal to the parties: GLJ v Diocese of Lismore at [22]. It was explained at [23] that if a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process, the trial must not be permitted. But if a "fair trial can be held and will not be so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court ordinarily has a duty to hear and decide the case". 7. Passage of time also remains a relevant consideration in cases such as this, where the question of whether a fair trial can be conducted arises to be considered in the context of the s 60F procedure. 8. In her affidavit, Ms Naboulsi explains her relevant history, which was not only unchallenged, but relied on by the Health District. Her explanation is supported by extensive medical records. Her history includes: * pain in her upper abdomen after the birth of her first child by caesarean in 1996; * the 1997 procedure; * a low speed motor vehicle accident in 2000 which resulted in pain in her lower back and abdomen; * the natural birth of her second child in 2001, without complications; * the commencement of constant pain in her lower abdomen in 2003, which gradually rose and fell, but was constantly present; * in 2005, while pregnant with her third child, she continued to experience that pain and gave birth by emergency caesarean in October; * by November 2006 her continuing abdominal pain causing discomfort, restriction and limitation of movement. Laparoscopic surgery was then undertaken at the Hospital to investigate the cause of her pain, but without success; * in August 2008 she gave birth to twins by caesarean. Her abdominal pain continued. Pain in her lower right abdomen prevented her from bending or kneeling and she could not sit for extended periods; * in August 2020, drinking tea began triggering vomiting. The level of pain Ms Naboulsi was then experiencing left her unable to eat properly; * Ms Naboulsi was hospitalised in September 2020 at Westmead and an MRI scan at Westmead was abandoned on 7 December 20220 when something metallic was detected in her lower abdomen region, as explained in a report of Dr Wang; * Ms Naboulsi was later advised by Associate Professor El-Khoury about the artefact which had been identified, which he considered was causing her pain, but would be difficult to remove. She was successfully treated with antibiotics for the lesion also then identified; and * in his later report Associate Professor El-Khoury recommended further CT investigation. In May 2021, he advised Ms Naboulsi that he could not assist her further, his report referring to there then being no pathology. 1. Whether by this Associate Professor El-Khoury meant that she no longer had any infection, or that the metallic object was no longer in her body is not clear. But the latter does not accord with Ms Naboulsi's evidence as to what she understood from what he told her, which supported what she came to believe after Dr Conrad's first report, that metal surgical clips had been used in the 1997 procedure to close her cystic duct and that it was one of these which had been detected by the 2020 scan. 2. Ms Naboulsi also explained how her ongoing pain had affected her employment. 3. Dr Conrad's report refers to the hospital records and over 800 pages of other GP, specialist, hospital and radiology reports which he had considered. He explained the history Ms Naboulsi had given and the investigations the records showed had been pursued in relation to her ongoing pain. He explained the results of Xrays and other scans and that while Ms Naboulsi had had antibiotic treatment, she has not had surgery to address the retained metallic clip or to drain any abscess. 4. Dr Conrad explained his qualifications and experience in laparoscopic cholecystectomy surgery and clip migration afterwards, including at the time of the 1997 procedure. He identified clip migration into the bile duct as having been one that could then occur in the best of hands and not involving substandard or negligent practice. 5. Dr Conrad also said that a second type of clip migration quite common in the early 1990's, when such surgery was less practiced, was due to a clip being dropped whilst trying to clip a cystic duct or artery. They fell into the peritoneal cavity and if not retrieved, could work their way into the lower abdomen or pelvis, with the effect of gravity. They could be open or closed when dropped and not being retrieved was regarded as preventable and due to poor technique. 6. Some of these clips did not cause problems but others migrated, causing abdominal pain and occasionally abscess formation. 7. On the available evidence he had considered Dr Conrad formed the view that there was very clear evidence that a clip had been lost in Ms Naboulsi's peritoneal cavity during the 1997 procedure. That having resulted in her ongoing pain, treatment and the investigations pursued into its cause. He considered that those who undertook the procedure had not provided services widely then accepted in Australia by peer professional opinion as competent practice. 8. The result of this substandard management was that Ms Naboulsi had a migrated clip in her pelvis which had caused recurrent abdominal pain and one recorded abscess formation, resolved with antibiotics. He also said that migrated clips are notoriously difficult to diagnose radiologically in the pelvis, which explained the delay in diagnosis till 2020. 9. Dr Conrad's supplementary report was provided in response to a request from the Health District to expand what he meant by "very clear evidence" that a clip was lost in her peritoneal cavity during the 1997 procedure. He there explained how clips were utilised during the laparoscopic procedure in order to ensure that there is no possibility of them falling off the structure they are applied to. He also referred to literature which explained that a firmly applied clip could migrate into the common bile duct, but not into the pelvis. In the bile duct, it causes stones to form. Some of that literature is in evidence. 10. Dr Conrad also explained how it became known in the early 1990's that a dropped clip had to be immediately retrieved, because it could migrate into the pelvis or abdomen, where it would stay. The literature explained that clips were rarely displaced, usually when dropped, with the result in rare cases of complications, namely into-abdominal abscess formation. 11. Dr Conrad did not identify any specific contemporaneous medical record to support his conclusion that a clip must have been dropped during the surgery. Fairly reading his reports, it is plainly Ms Naboulsi's ongoing pain, its treatment and investigation and the metal object only located in 2020, on which he based his opinion that hers was one of the rare cases where a clip had been dropped, not retrieved during surgery, and had migrated and caused ongoing physical problems which she suffered. 12. In his affidavit, Mr Guenette referred to Ms Naboulsi's medical history, quoting from the handwritten 1997 operation report which noted that the "cystic duct clipped and divided". But that it did not record that a clip had been dropped. He noted that in her laparoscopic surgery, divisions of adhesions had been dealt with and in 2006 cholecystectomy clips were identified to be in place with no lost clips identified. He also quoted from reports of her later examinations, including those following the 2020 scan and also noted that a 2021 CT scan suggested that she was then asymptomatic and no clips were identified in her pelvis. 13. Mr Guenette explained that Auburn Radiology had been unable to produce earlier documents and imaging. He is not medically qualified, but had also examined the 800 pages of records Dr Conrad had considered. He had not been able to identify the "very clear evidence" to which Dr Conrad referred in his first report. Mr Guenette does not suggest in his evidence that clips of the kind utilised in the 1997 procedure were used in any of the other procedures which Ms Naboulsi later underwent. 14. Mr Guenette also said that the hospital no longer retained the relevant employment records, so those who undertook the 1997 procedure have not been identified, so that their instructions could be obtained. Even if they were identified, they were unlikely to have any specific recollection of the procedure. 15. That other experts might have similar opinions to those of Dr Conrad, cannot be excluded. Nor that any opinions which he might express at trial would be accepted. 16. It follows that the passage of time has caused evidentiary problems for the Health District. Unlike other cases, the relevant records are, however, available. Undoubtedly, for the Health District, the absence of evidence from those who performed the surgery is important. But it has been recognised that "the absence of a witness or witnesses who may be regarded by a party as important, whether through death, illness, loss of memory or inaccessibility ... will not mean that a fair trial cannot be obtained": Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 at [89]; [2019] NSWCA 102. 17. In R v Edwards [2009] (2009) 83 ALJR 717 at 722; HCA 20 at [31]; it was held that "the fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair." 18. It is thus relevant that like Ms Naboulsi, the Health District will also be able to consult with other experts and call them to give evidence, if it wishes to challenge expert evidence she is also likely to call at trial from Dr Conrad. 19. Also necessary to take into account is the onus of proof which will fall on Ms Naboulsi at trial. Its satisfaction does not depend on the reports of Dr Conrad on which she relies on this application, when she does not have to prove her claim as she will at trial. His reports may be revisited, or some other expert may be called at trial. Such expert evidence may or may not then be met by expert evidence led by the Health District. In that event, a joint report would have to be produced and, if required, the experts examined concurrently. 20. It is not beyond the realms of possibility that such experts might agree with Dr Conrad's opinions about the relevant surgical practices in the 1990s; the likelihood that Ms Naboulsi's ongoing pain was caused by a dropped clip during the 1997procedure; and the difficulty in identifying them in a person's body, in the cases when they do, over time, cause problems of the kind which she experienced for years after her surgery, before the object was identified by the MRI scan in 2020. 21. To this point the Health District has relied only on the evidence of its solicitor. His opinions about what the medical records contain do not establish that the opinions which Dr Conrad has expressed, and on which Ms Naboulsi relied in making her decision to commence these proceedings and pursue the extension which she requires, are implausible. 22. I am satisfied that the evidence on which Ms Naboulsi has advanced her application provides a proper basis for grant of the extension which she requires, notwithstanding the problems which the passage of time has caused in relation to the calling of evidence at the trial. I am not persuaded that the passage of time will preclude a fair trial being conducted in this case. 23. Obviously, the evidence which the parties lead at trial will have to be carefully scrutinised, given that it seems that evidence from those who undertook the surgery will not be available. A crucial question will be whether it was then that a clip was left in Ms Naboulsi's body. 24. It will be relevant that the surgical record which was kept did not record that a clip had been lost. But that does not preclude this having occurred. If there is no other explanation for its presence in Ms Naboulsi's body, that this occurred would appear to be an available conclusion. 25. It must be accepted that even if the members of the surgical team were available, loss of a clip during the surgery in 1997 is something which they may be unlikely to remember in any event. In the result, any trial is unlikely to turn on their recollections alone. 26. It follows that the loss of the opportunity to lead evidence from them cannot result in the conclusion that the trial will be unfair, given the passage of time, having regard to all the available records. They are not party to the proceedings and the Health District's case cannot depend on their instructions, even though their evidence might shed light on what happened in 1997. 27. In all those circumstances, I am satisfied that justice requires that Ms Naboulsi have the extension which she seeks. 28. Despite the passage of time, the Health District will have a meaningful opportunity to meet the case which Ms Naboulsi seeks to advance against it. Her claim is clear, the relevant medical records are available and it is on notice of the case which she will seek to advance, given the pain she continued to suffer after the 1997 procedure, the treatment and investigations she later pursued, with the discovery of the clip only in 2020. 29. If she is unable to establish on the available evidence, some of which will undoubtedly be circumstantial, that the clip was left in her body during the 1997 procedure her case will fail. Costs 1. The usual order is that costs follow the event. In this case, that is an order that the Health District bear Ms Naboulsi's costs. 2. Unless the parties wish to be heard about costs, in which event they should approach with short written submissions within 14 days, that will be the Court's order. Orders 1. For the reasons, I order that: 1. Ms Naboulsi has leave, nunc pro tunc, to commence these proceedings 2. The Health District bear Ms Naboulsi's costs as agreed or assessed, unless the parties wish to be heard about costs, in which event they should approach with short written submissions within 14 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2024