BAILEY v OSWALD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY ACJ, CLARKE and MEAGHER JJA 19, 20 and 21 March 1990, 25 May 1990 [1990] NSWCA 17 LIMITATION OF ACTIONS — extension of period — statutory requirements — personal injury case — claimant's knowledge of relevant material facts — whether a reasonable person ought to have brought an action before the critical date — claimant injured in hospital to which she was admitted by a medical practitioner — claimant knew that an accident or mistake had occurred in the hospital and suspected that the medical practitioner was liable — no proceedings commenced until after expiry of limitation period — claimant asserts that "material fact of a decisive character" missing from her knowledge was knowledge of the relationship between the medical practitioner and the hospital — sues in false imprisonment, assault and negligence — Master Allen extends time — appeal to McInerney J dismissed — further appeal (by leave) to the Court of Appeal — held: (1) Absence of knowledge of a cause of action was not a "material fact of a decisive character". Do Carmo v Ford Excavation Pty Ltd (1984) 154 CLR 234 applied; (2) (Meagher JA dissenting) But absence of knowledge of the medical practitioner's relationship with the hospital was of that character. Ellis y The Wallsend District Hospital (1989) 17 NSWLR 553 referred to; (3) (Meagher JA dissenting) On the findings below, the Court should not disturb the conclusion that, having regard to the respondent's circumstances, she had taken all reasonable steps to ascertain the facts. LAW REFORM — Limitation Act 1969 s57, s58 — per Meagher JA; "The Court is constrained to construe the barely comprehensible words of those sections. It is not so much an occasion for explaining the elliptical and expounding the unexpressed as propounding the obscure and reconciling the contradictory". WORDS and PHRASES — "material facts of a decisive character". Limitation Act 1969, s57, s58. Appeal dismissed with costs. Kirby P Once again, and with reluctance, I peer into the chasm in which is found s57 and s58 of the Limitation Act 1969. The only pleasure in doing so derives from the ray of light which is promised by the news that Parliament intends to amend the sections, so often and so trenchantly criticised here and in England. For this relief, much thanks. In the meantime, it is the duty of the Court to venture, with the modesty and doubt that must accompany any pilgrim's journey through a labyrinth, towards the way by which the words of the sections can be applied to the facts found in this case. Errors at first instance and on appeal Those facts are described in the reasons for judgment of Clarke and Meagher JJA. The appellant complains that McInerney J (from whom the appeal to this Court comes) erred in admitting into evidence certain additional evidence which was not before Master Allen (as his Honour then was) at first instance. The well known principles which restrain an appellate court from disturbing the exercise of a judicial discretion to admit such fresh evidence are, without more, enough to overrule that objection. 2 UNREPORTED JUDGMENTS Once that conclusion is acknowledged, it is necessary, by authority of law and conventional theory for this Court, in conducting its appeal, to accord respect to the advantages which both McInerney J and Master Allen had from the fact that they saw Mrs Oswald (the respondent) give evidence. They could assess her credibility upon a number of bases. One of them was the impression she made on them as a witness. To the extent that the decision of McInerney J (or of Master Allen so far as it was confirmed) depended upon their conclusions about the truth-telling of the respondent and their assessment of her mental capacity, this Court should defer to those conclusions. It should do so unless the exceptional circumstances are made out by which it can be said that such conclusions were "palpably" erroneous, "glaringly" improbable or clearly contradicted by inferences available from uncontroverted facts. Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842; Chambers v Jobling (1986) 7 NSWLR 1. Both Clarke and Meagher JJA have demonstrated that, in reaching his conclusion, McInerney J appears to have misconceived Master Allen's findings. In this dark tunnel, it is very easy to lose one's way. But this misapprehension is not sufficient to carry the appeal for the appellant. Relief is given not for an error of reasoning but because the order entered was wrong. It is necessary to re-examine the factual material, added to by the exercise of McInerney J's discretion. It is necessary then to bear in mind his Honour's observations on that material. It is then necessary to ask whether his Honour's order is wrong so that this Court is authorised to substitute its other, and different, order. After Master Allen gave his reasons for judgment, the High Court of Australia delivered its judgment in Do Carmo v Ford Excavations Pty Ltd (1983) 154 CLR 234. Although much is left obscure by that decision, which found the High Court Justices groping in the darkness like the rest of us, one thing at least is plain. This is that after Do Carmo the existence of a cause of action, as such, is not a "material fact of a decisive character" to activate the beneficial provisions of the sections. Therefore, to the extent that Master Allen had concluded in favour of the extension of time for Mrs Oswald on the basis that she "did not know she had a cause of action against [Dr Bailey]", this conclusion did not warrant the extension which he granted. No more than McInerney J is Master Allen to be criticised. His decision was given before Do Carmo threw a little mottled light on the meaning of the key phrase which works the sections. Missing facts: relationship between doctor and hospital As the matter went off at the first and second levels of hearing and resulted variously in orders which display errors of the law as that law is now understood or errors of recording the findings at first instance the most appropriate and just way now to deal with the matter (remembering always that it is an appeal) is to consider the way in which the respondent says she was entitled to succeed within the facts proved. This does not amount to an impermissible presentation, in this Court, of a case different from than that offered below. There has been some regrouping and modification of the respondent's contention in the light of the developments of the law since Do Carmo. But the essential case of the appellant on the first step necessary to attract the section has remained the same. She knew certain facts as collected in the reasons for judgment of Meagher JA. In particular, she knew she had gone into Chelmsford Hospital on the suggestion of Dr Bailey. She knew that, when discharged, she had a serious disability in her right arm. She had received an apology for this from Dr Bailey who blamed a shortage of staff of the hospital. URJ BAILEY v OSWALD (Kirby P) 3 She had a belief that Dr Bailey might have been responsible or even was responsible. But what she did not know, as a fact, was the precise connection between him and the hospital. It was this bundle of facts, and only this, upon which the hypothetical advice envisaged in s57(1)(c) of the Limitation Act must be taken to be received. The advice is given on what the reasonable person, as contemplated by the statute, is deemed to know. The advice is not itself given to supplement those facts which pre-exist, hypothetically, the advice given upon them. Many cases demonstrate the difficulty of bringing home to an apparently independent medical practitioner the liability of the hospital organisation. Very recently in this Court, in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, the Court (by majority) decided that a private hospital was not vicariously or otherwise liable in law for a tort allegedly committed on a patient at the hospital by an honorary neurosurgeon. This was so, although the medical practitioner concerned was a member of the "honorary staff' of the hospital; performed the operation in the hospital with the assistance of hospital staff; did so pursuant to a consent form which acknowledged the right of the hospital to change the surgeon and did so using hospital equipment and facilities. Just because the medical practitioner was performing work in the hospital and, in a loose sense, was part of the hospital's "organisation" did not render the hospital vicariously liable for his torts. Meagher JA joined Samuels JA to reach that decision. I dissented. This decision was the subject of an application for special leave to the High Court of Australia. Special leave was refused. See (1990) 1 Leg Rep SL 3. Ellis illustrates vividly the need for a detailed knowledge of the precise factual relationship between a medical practitioner and a hospital before the law will assign liability to the one for the wrong of the other, its servants or agents. Although that case concerned an attempt, because of the death and inadequate insurance of the medical practitioner, to fix the hospital with liability for his torts, the same point can be made, in reverse, in respect of the hypothesised consideration here of the material facts which the respondent would need to know before bringing an action against Dr Bailey for a supposed tort of the hospital. For all she knew, in the bundle of facts available to her, Dr Bailey was entirely blameless. The cause of her disability might have been wrongdoing on the part of the hospital or its nursing staff for which Dr Bailey might not have been responsible in law. Because of her sedation, the respondent did not know precisely who it was that had administered the injection or other treatment which had caused her permanent disability. Nor did she know precisely Dr Bailey's relationship with the hospital or his role in her treatment there. Her ignorance of the fact that she had, or might have, a cause of action is irrelevant. But without knowledge of the foregoing facts she lacked knowledge of "material facts of a decisive character". Facts were outside respondent's means of knowledge This still leaves the question whether, although outside her knowledge in fact, such material facts of a decisive character were within the respondent's "means" of knowledge. It is not enough under s57(1)(e) that she did not know the facts. It must also be shown by her that the facts were not capable of being ascertained or that she had taken all reasonable steps to do so. I agree with Clarke JA that it is here that the respondent faces her major difficulty. As his Honour points out, there were various steps which she might reasonably have taken to ascertain the material facts. Many reasonable people, 4 UNREPORTED JUDGMENTS even after her ordeal and consequent disability would have done so. However, the statute requires consideration of the circumstances of the applicant before a determination is made as to what steps he or she should reasonably have taken to ascertain the missing facts. It is here that the assessment of the respondent herself becomes important. A robust view of the respondent's intellectual capacity, comparative poverty, matrimonial breakdown and knowledge of legal aid might result in the conclusion that none of these really stood in the way of her taking the steps necessary to protect her position. On the other hand, taking into account her circumstances as I am bound to do, I consider that it was open to both Master Allen and McInerney J to conclude as they did. According to their conclusion, the respondent had not failed to take all reasonable steps which a more resourceful individual might have taken. The Court emphasised in Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283, esp at 287 (Hope JA) and 300 (Mahoney JA) that regard must be had to the "circumstances" of the claimant in judging whether, at the hypothesised earlier time, the claimant ought "in his own interest" to have brought the action. Given the particular circumstances of the respondent proved and demonstrated in evidence, I consider that it was open to Master Allen and McInerney J to decide that she had not failed to take all reasonable steps. Because that conclusion would have been based, in part a least, upon an impression of the respondent formed with the advantage of seeing her give evidence, I do not consider that this Court is authorised in the circumstances to come to the contrary conclusion. Conclusion and order When, eventually, the respondent saw the "60 Minutes" programme about the Chelmsford Hospital on television in September 1980, she sought advice and moved with requisite speed to begin the subject proceedings. Incredibly enough, nearly a further decade has passed. What should have been a straightforward preliminary point as to her entitlement to sue has meandered slowly through a succession of somewhat reluctant courts. In my opinion there should be no further delay. I would dismiss the appeal with costs. The appeal is dismissed with costs. Counsel for the Appellant: M J Beazley QC, G S Charney Solicitors for the Appellant: Duncan Barron and Co Counsel for the Respondent: P J Lanigan Solicitors for the Respondent: Anthony Malouf and Co