BATES v ENDREY-WALDER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY and BEAZLEY JJA and SHEPPARD AJA 11 March 1998, 30 July 1998 [1998] NSWCA 32 LIMITATION OF ACTIONS - Application for extension of time refused by District Court - Application made both pursuant to s58 and s60G of Limitation Act 1969 - Action brought by appellant in respect of incidents occurring in 1976, 1977, 1980, 1985 and 1991 in relation to the consequences of silicone breast implants - Action based on failure of doctors to warn appellant of risks of silicone implant surgery - Whether appellant had established matters provided for in s60I of Limitation Act - Whether trial judge's discretion under s60G miscarried - Whether the case fell within s58 of the Act - Whether trial judge's discretion under s58 miscarried - Exercise by Court of Appeal of trial judge's discretion - Limitation Act 1969 s18A, s57B, s58, s60G, s601. Schedule 5, cl4. Ford Excavations Pty, Ltd v Do Carmo (1984) 154 CLR 234; [198112 NSWLR Dedousis,, The Water Board (1994) 181 CLR 171 Harris v Commercial Minerals (1996) 186 CLR 1 CRA Ltd v Martignago (1996) 39 NSWLR 13 Commonwealth v Dinnison (1995) 56 FCR 389 Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 FJ Walker Ltd v Webber (NSW Court of Appeal, 16 November 1989, unreported) Dravton Coal Pty Ltd v Drain (NSW Court of Appeal, 22 August 1995, unreported) McLean v Commonwealth of Australia (Sperling J, 28 June 1996, unreported) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Handley JA I agree generally with the reasons for judgment of Beazley JA and Sheppard AJA. This appeal should be dismissed with costs. Beazley JA I have had the advantage of reading the judgment of Sheppard AJA. His Honour has examined in detail the background to the application for extension of time and the evidence adduced in support of it. It is not necessary to repeat that material. I agree with his Honour's finding that the appellant did not become aware or ought to have become aware of the facts and matters upon which she now relies to support her cause of action until 1994. I also agree that the trial judge's discretion miscarried for the reasons expressed by Sheppard AJA. The question which arises for consideration is whether, having regard to these findings and on the evidence filed in support of and in opposition to the application, an order extending the time in which to commence the appellant's action should be made. Like Sheppard MA, I find it convenient to deal first with the application under s60G of the Limitation Act 1969 (NSW). For my purposes, it is only necessary to consider the Court's discretion under s60G(2), as I agree with Sheppard AJA that the provisions of s601(1) have been satisfied. The discretion under s60G(2) is one to be exercised if the Court "decides that it is just and reasonable to do so", compliance with s601 having been established as a pre-condition to the exercise of the discretion. The phrase 'Just and 2 UNREPORTED JUDGMENTS reasonable " finds statutory expression in the earlier provisions of s60C of the Act, and should be read conformably with its meaning in that section. The statutory regime under s60C differs, of course, from that under s60G in that s60E specifies matters to which the Court is to have regard in exercising its power under s60C. Those matters include the length of and reasons for the delay (s60E(D(a)) and the extent 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 ": s60E(I)(b). In Sydney City Council v Zegarac (1998) 43 NSWLR 195 Mason P considered the principles which govern the exercise of the discretion under s60C. At 197 his Honour stated the following five "uncontroversial" propositions: "1. S60C confers a judicial discretion. 2. The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is 'just and reasonable " to make the order for extension: see also Brisbane South [Regional Health Authority v Taylor (1996) 186 CLR 4511 (at 544, 547, 554, 567-568). 3. In exercising the discretion, the court is required "to have regard to all the circumstances of the case " (s60E(1)). It is also required to have regard to the eight factors listed in s60E(1)) "to the extent that they are relevant to the circumstances of the case". 4. Among the circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney-General's Second Reading Speech that are set out in the other judgments, and which McHugh J discusses in Brisbane South (at 551-553): see also Kirby J (at 563-564). 5. Since s60C creates a judicial discretion appellate review is restricted by well-known principles. " The second proposition also finds expression in BHP Steel (AIS) Pty Ltd v Giudice (unreported, NSW Court of Appeal, 7 March 1997). The Court (Mason P, Handley JA and Cole JA)stated at 7: "As McHugh J made clear in Brisbane South Regional Health Authority v Taylor the applicant for an extension of time 'has the positive burden of demonstrating that the justice of the case requires that extension'. Enlivening the jurisdiction to grant an extension does not mean that the jurisdiction will be exercised." These propositions apply equally to s60G (except that the reference to the individual factors specified in s60E(1) is not applicable. The discretion is more generally based). In relation to proposition five, as the trial judge's discretion miscarried in this case, it is open to this Court to exercise the discretion conferred by the subsection: see House v R (193 6) 55 CLR 499. Having set out the five "uncontroversial" propositions Mason P then examined the extent to which the principles enunciated by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 applied to a provision such as s60C. His Honour examined the differences of approach amongst the various judgments and in particular between the joint judgment of Toohey and Gummow JJ on the one hand and the judgments of Dawson J and McHugh J on the other. In doing so, his Honour directed attention to the possible point of departure between the two views, Toohey and Gummow JJ holding at 550 that: URJ BATES v ENDREY-WALDER (Beazley JA) 3 "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." whereas Dawson J and McHugh J indicated that where there was actual or a "real possibility of significant prejudice " (per McHugh J at 556) an application for extension should be refused. Mason P concluded by adopting the statement of Kirby J in Brisbane South at 569-70, that the discretion conferred by a particular limitations statute was "controlled only by the terms of the Act [in question] and the achievement of its purposes ". Applying that approach his Honour stated: "Applying this approach to Pt3, Subdiv 2 of the Limitation Act 1969, s60E(1) in particular, I would hold that proof of actual prejudice, even "significant" prejudice, does not dictate the rejection of an application for extension of time. All of the circumstances of the case must be taken into account, including each factor mentioned in s60E(I) to the extent that it is relevant to the circumstances of the case. If this is 'individualised justice", it was what parliament intended. Evidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case. In weighing prejudice, its impact upon a fair trial is the primary focus, as Toohey J and Gummow J emphasise in Brisbane South." These comments apply equally to the exercise of discretion under s60G. I would only add that the focus of the consideration of any relevant matter is its impact on a fair trial. As I have explained, the combination of sections which cause the discretion under s60G to be activated operate from a different premise, than that upon which s60C is based. However, the lack of prescription of prejudice as a relevant consideration under s60G does not make it any less relevant to the question of the exercise of discretion. However, as Mason P also stated in Sydney City Council v Zegarac, the existence of prejudice to a defendant is not necessarily a bar to the success of an application for extension of time. Rather it is a factor to be considered together with all the circumstances of the case. In this case, the appellant did not become aware of the connection between her symptoms of a silicone related disease and the implants until 1994. That factor opens the doorway" to s60G and to the question whether the discretion should be exercised in her favour. The appellant's evidence suggested that the defendants had each failed in their duty to the appellant, both in not warning her of the dangers of silicone inserts and in carrying out the operation in any event, the appellant having a body type unsuitable for the insertion of prostheses. According to this evidence, there was considerable literature published on the properties and effects of silicone and silicone gel implants. Such material suggested there was ongoing debate and uncertainty a out the use of the product over a long period, particularly from the 1960s. The appellant's case was that she would not have undergone the various operative procedures had she known of the possible dangers associated with the use of the product. The fact that the appellant was not aware of the connection between her symptoms and the implants until 1994 might be sufficient to satisfy the onus which the appellant bears of -demonstrating that the justice of the case requires [the] extension " if there were no other relevant matters for the court's consideration. However, the respondents defended the application for extension of time, essentially on two bases. First, they said that the dangers of silicone and in particular "the association (if any) between atypical (or typical) rheumatic syndrome... and breast surgery of the type performed upon the [appellant] was 4 UNREPORTED JUDGMENTS unknown" until about 1991: see Dr Olbourne's evidence. Secondly, they contended that each is seriously prejudiced in that none any longer has his medical records relating to the appellant and none has any independent records of the appellant. Another relevant consideration is, as was stated by Dawson J in Brisbane South at 544 "once the Legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation " is also a relevant consideration. The first of these matters, that is, whether the dangers of silicone were known, or at least that it was the subject of medical debate and concern, raises a significant factual issue between the parties and if an order extending time is made will undoubtedly be a focal issue at the trial. However, a difference of expert opinion, even a substantial difference, does not, of itself, give rise to the type of prejudice relevant to the exercise of discretion under s60G. The second matter, that is, actual prejudice, raises different considerations. In debating this issue during the hearing of the appeal, counsel for the respondents placed considerable emphasis upon the respondents' lack of recollection of the appellant and in particular, of her body type. In my opinion, that is only one factual consideration and possibly the least of the matters which might cause any prejudice to the respondents. If the appellant is to rely on this matter, she will have to prove at trial what her body type was at the relevant time or times and that it made her an unsuitable candidate. True it is that the respondents will not be able to directly contest this evidence from either their recollections or notes. But the onus is on the appellant on this question. That onus will not be satisfied by mere assertion. She will have to prove the facts. The facts adduced, if any, will, in my opinion, be able to be forensically challenged by the respondents in a way which will not lead to any prejudice, or at least any significant prejudice. However, there is a more significant aspect of prejudice which calls for consideration, and that is the absence of any relevant medical reports in relation to the appellant, in circumstances where the respondents do not have (and given the lapse of time could not be expected to have) any recollection of the appellant, her condition, any consultations with her or her treatment. This is of particular significance in a case of failure to warn, as a substantial part of the appellant's case is. In this regard, I agree with the comments of Sheppard AJA and do not have anything further to add. Although the considerations in this case are, I believe, finely balanced, I am not satisfied that a fair trial, can, in all the circumstances, be had. In reaching that conclusion I am acutely conscious that it is the appellant who is absolutely prejudiced in being shut out from her claim. However, the Court's duty is to apply the legislation according to its terms. I would only add that the case does throw up the important policy questions of the maintenance of medical records or whether they should be given into the custody of the patient at the conclusion of medical treatment. T also agree with Sheppard AJA in relation to the application under s58. It follows that the appeal should be dismissed with costs. Sheppard AJA This appeal, brought by leave granted on 14 July 1997, raises questions concerning the construction and application of the Limitation Act 1969 ("the Act"). On 7 February 1995 the appellant commenced an action in the District Court against six doctors. They are the defendants in the action and the respondents to this appeal. The first respondent carried on general practice.. the remaining respondents were plastic surgeons. The appeal does not arise out of the URJ BATES v ENDREY-WALDER (Sheppard AJA) 5 final hearing of the action, but because of the dismissal by the District Court (Herron DCJ) of an application for an extension of periods of limitation provided for in the Act. The appellant alleges that in July 1975-76 she consulted the first respondent for treatment regarding lumps which had formed in her left breast. It is alleged that in mid June 1976 the first respondent recommended that the appellant have breast tissue removed and silicone prostheses inserted into her breasts. He referred her to the second respondent. The statement of claim contains allegations of negligence against the first respondent, that is the appellant's then general practitioner. Particulars of the negligence were that he had assessed the appellant as being a suitable candidate for silicone prostheses implants at the time of a bilateral mastectomy when the appellant was in fact an unsuitable candidate for such procedure. The appellant further alleges that, by reason of the surgery to insert the implants and the treatment that followed, "risks and consequences" of which the first respondent knew or ought to have known ensued occurred and caused her problems in the long term in that her body tissues became saturated with silicone requiring further surgery, "a fact that the [appellant] was not aware of until 1994". It is also alleged that the first respondent failed to exercise reasonable skill and care in treating the appellant, the full facts of which the plaintiff was unaware of until 1996 (sic). There was originally a further particular of negligence but this was not relied upon. It may be thought that the last of the particulars which I have recounted is not in truth a particular but more an allegation of negligence. Consequently, in the way that the matter was approached, it was the first two of the particulars upon which reliance was placed by the appellant. I should pause here to emphasise that there has been no final hearing of the action. No finding of negligence or fault has been made against any of the respondents nor can it be unless and until the appellant's action proceeds. That is probably not something that can happen unless the appellant has at least a degree of success in this appeal. The reason I have said what I have stems from the need to give a comprehensive account of the appellant's evidence. It is necessary to refer to her particulars of alleged negligence against the other respondents and to the detail of her evidence contained in the four affidavits upon which she relies. The respondents have not led very much evidence, but the fact that they have not is explained by the nature of the proceeding which is in question. The occasion for them to deal in detail with the appellant's allegations has not yet arisen. The appellant, on the other hand. must establish certain matters in order to succeed in her application for an extension of time. That is why at least at the moment, there is an imbalance in the evidence. The account of the appellant's evidence which must now be embarked upon must be understood as an account of what she says occurred. It ought not to be taken as an uncontested version of the facts. But her evidence, which was not criticised by the primary Judge, may be taken at its face value for the purpose of dealing with this appeal. It may be taken as what she will say in her evidence at the trial if it takes place. The particulars of negligence against the second respondent, being the first of the plastic surgeons, were again that he had assessed the appellant as being a suitable candidate for silicone implants shortly after mastectomy and after the insertion of implants by him when in fact she was unsuitable for such prostheses. The appellant was said not to have been aware of this until 1996. It was then alleged that, by reason of the insertion of the implants and treatment, the risks and consequences of which he knew or ought to have known, the appellant suffered 6 UNREPORTED JUDGMENTS long term problems in that her body tissues became saturated with silicone requiring further surgery. It is alleged that no warning of any risk as a consequence of the procedure of inserting the implants was given and that such a warning should have been given. A further particular alleges that a hypodermic syringe used to aspirate fluid from the appellant's engorged left breast punctured the walls of a prosthesis allowing silicone to escape into body tissues. It is contended that the second respondent knew or ought to have been aware of the risks and consequences of such a procedure. Eventually the silicone-impregnated tissue had to be surgically removed. This occurred in 1994. It is alleged that the appellant was unaware of the injury to her body tissue until then. The particulars against the third, fourth and fifth respondents are essentially similar to those furnished in relation to the second respondent except that they do not include the allegations concerning the use of a hypodermic syringe to aspirate fluid from the appellant's breast. The allegation against the sixth respondent is that he was negligent in that he failed to retain breast tissue for pathological testing which would have shown the presence of high levels of silicone and which resulted in delay in removing silicone from the appellant's breasts. There is evidence that the Doctor was instructed to retain the tissue and failed to do so. Damage consequential upon his alleged failure in this regard is alleged in the particulars. The second respondent operated upon the appellant in June 1976, the third respondent in September 1976. the fourth respondent in March 1977, a Dr Pelly (now deceased), whose estate is not joined as a defendant, in 1977, and the fifth respondent in July 1980 and again in August 1980. Further treatment by the fifth respondent was carried out in October and November 1985. In November 1991 the sixth respondent removed the prostheses and reduced the skin envelope. In February 1994, a Dr Hodgkinson (who has not been joined as a defendant) removed silicone-impregnated tissue from the appellant's chest, axilla and pectoral muscle. The appellant claims to have become aware for the first time in 1994 that silicone had leaked into her body. She had further treatment by Dr Hodgkinson. As mentioned, the appellant's action was commenced on 7 February 1995. Periods of limitation provided for in the Act had expired in relation to each of the respondents. Accordingly, on 7 February 1995, at the same time as the filing of the statement of claim there was filed on her behalf a notice of motion seeking an order that, pursuant to the Act, the period in which the appellant might commence and maintain proceedings against each of the respondents in respect of personal injuries suffered by her arising out of the negligence of the respondents be extended until 1 June 1995. Consequential relief was claimed. The Appellant's Evidence: The notice of motion was supported by an affidavit sworn by the appellant on 6 February 1995. She said that she developed a lump in her left breast in 1975. In July of that year the first respondent performed a lumpectomy. The lump was found to be benign. The appellant said that, over the next year or so, she developed about five more lumps in her left breast. These were aspirated and also found to be benign. The appellant said that the first respondent said that the lumps developing in her left breast could become cancerous given her family history. Her mother and sister had developed cancer in other parts of their bodies. He recommended that she have a bilateral sub-cutaneous mastectomy. The appellant's affidavit refers to her concern about such a radical procedure and to URJ BATES v ENDREY-WALDER (Sheppard AJA) 7 advice said to have been given to her by the first respondent who, so she said, said that psychologically she needed the operation because of the worry of developing cancer. He said the chances of cancer developing were high because of her mother and sister and told her that the second respondent to whom he would refer her would insert silicone prostheses which "will" give you beautiful breasts which will last a life-time. Once they are put in they will last forever'. The appellant said that she accepted the advice and arranged to see the second respondent. She asked him, so she said, what the dangers were. He told her that there were always dangers with general anaesthetics and infection. He showed her prostheses which she was able to feel and explained the nature of the procedure to her. He also said, so the appellant said, "your body will not react in any way to them. They will last a life-time". He was asked what would happen if she were in a car accident and was told that the implants would stay intact. She asked how he would decide the size of the implants. According to her evidence, the second respondent's secretary was unable to find an apparatus which he used to measure the size of breasts. The appellant said that she accepted the advice of the two doctors. In mid June 1976 the second respondent carried out surgery to remove her breast tissue and implanted prostheses. The procedure was done at the Buena Vista Private Hospital in Woollahra. The appellant was then almost 37 years of age. She described the aftermath of the operation. She complained of substantial pain. She noticed, so she said, that the implants had made her breasts about twice their size before surgery. Swelling developed in the left breast. It was aspirated by the second respondent using a hypodermic syringe which was inserted on numerous occasions. Nevertheless the swelling remained. According to the appellant, her left nipple had become blue/black in colour. The second respondent told her not to worry about it. She said that she was in agony by the Friday following the surgery which had been performed on a Tuesday. The doctor could not come. The appellant "signed herself out" of the hospital on the Monday or Tuesday following surgery and saw her family doctor who told her to go back to the second respondent as soon as she could. He said that necrosis had set in. There was no circulation to that part of the nipple. She saw the doctor over the following two months. He gave her some treatment but the nipple "continued to die". The appellant said that about two months after surgery the prosthesis broke through the nipple area of the left breast. The second respondent saw her immediately. He told her that the nipple and dead tissue around it would have to be removed and the hole stitched. He cut off the nipple with a pair of scissors. The appellant said that all the tissue was not dead and she felt extreme pain. There is evidence of what then occurred. It is unnecessary to refer to the detail of it. The appellant said that, had she known that what had occurred was a possible outcome of the surgery, she would never have agreed to it and would have lived with the risk of developing breast cancer. She said that, if either the first or second respondents had told her of the possibility of silicone leaking into her body and possibly damaging her health, she would not have consented to the implants. In September 1976 the appellant consulted the third respondent. He admitted her to the Bexley Private Hospital where he removed both prostheses and replaced them with smaller ones. According to the appellant, he gave her no advice regarding risks involved in inserting silicone prostheses. The appellant said that, if he had told her about any risks associated with silicone implants, she 8 UNREPORTED JUDGMENTS would have asked him to remove the prostheses which he had inserted and would have refused to have any further implants. She described her post-operative experience. She said that within six months, her left breast had become extremely hard and had migrated upwards on her chest wall. Her right breast had become "very firm" and had dropped. In March 1977 she was referred to the fourth respondent. He, so she said, "performed an internal capsulectomy on my breast implants and replaced the same implants into the same breast pockets". The appellant said that he did not advise her of the risks associated with the insertion of the silicone prostheses. She said that for several weeks after the surgery, her breasts were soft but slowly they hardened. She then consulted Dr Pelly. It is unnecessary to refer to the detail of her evidence in that regard because Dr Pelly's estate is not joined as a defendant. But she says that her breasts again gradually hardened, migrated and became very painful. In 1980 she consulted the fifth respondent. In July 1980 he removed the silicone prostheses which had been inserted by the third respondent. In August 1980 the right prosthesis fell out of her breast as she reached up to a cupboard. The fifth respondent reinserted the prosthesis. She said her breasts gradually hardened, became misshapen and were painful. On one occasion the fifth respondent, so she said, carried out a manual capsulectomy which relieved problems in the right breast but only for a short time. In October 1985 the doctor told her that he could perform a capsulectomy and soften her breasts. He said that, at the same time, he could round out her left breast and replace the nipple with tissue taken from her inner thigh. The appellant accepted this advice and the surgery was performed in October 1985. The doctor told her that the operation had been a success. The skin graft had taken and he explained the nature of the replacement prostheses to her. She said that the doctor gave her no reason for replacing the prostheses nor did he ask her whether she wished them to be replaced. He did not give her any advice as to risks associated with silicone prostheses. In November 1985, when the fifth respondent was removing the stitches, the prosthesis in the right breast fell out. She was readmitted to hospital and the prosthesis reinserted. The left breast gradually became hard, migrated and became misshapen. The right breast became very firm. In 1991 appellant returned to the fifth respondent and asked him to remove the prostheses and to reduce the skin envelopes. He agreed to remove the prostheses but did not want to reduce the envelopes. It was then that she went to the sixth respondent. On 29 November 1991 he carried out surgery to remove the prostheses and to reduce the skin envelopes. The appellant claims that she said to the doctor that she wanted a bone marrow test and a liver biopsy done at surgery. She said that she would also like all breast tissue which he removed to be saved for pathology. Later the sixth respondent told her that he could not find a doctor to carry out a bone marrow test or a liver biopsy because most doctors thought it was dangerous. He persuaded her not to proceed with bone marrow testing or a liver biopsy. After the surgery she asked the doctor for the breast tissue. He told her that it had been thrown away. She said that she had wanted it tested for silicone. He told her that there was no test that could be done which would show silicone in the tissue. He said that there was no silicone visible during the operation and no need to do pathology. The appellant was cross-examined. She was asked particularly about a television program in which she had participated in 1991. The interviewer was Andrew Olley who is now deceased. A video of the television program was URJ BATES v ENDREY-WALDER (Sheppard AJA) 9 played to his Honour and was in evidence. Part of what the appellant said in the course of the interview is transcribed in the shorthand notes which appear in the record. The principal purpose of the cross-examination appears to have been to persuade the appellant that she must have been aware of the risks that might be occasioned by silicone implants much earlier than she was prepared to concede. She maintained that she was not fully aware of the implications until 1994 when she was operated on by Dr Hodgkinson for the final removal of the implants and the testing of tissue that took place at that time. The appellant swore three further affidavits on 22 November 1995, 22 December 1995 and on 21 October 1996. Much of the affidavit sworn on 22 November 1995 is repetitive of what was contained in the affidavit of 6 February 1995. There is some elaboration of detail, but I do not find it necessary to refer to so much of the affidavit as deals with ground covered by the earlier affidavit. It does however contain some new evidence to which reference needs to be made. The appellant said that in about 1990 she began to read in The Sydney Morning Herald about various problems with breast implants arising from their manufacture. Apparently, this was what prompted her in 1991 to ask the fifth respondent to remove the implants although she told him that it was because of pain and discomfort. She does not say that she asked for their removal because of what she had read in the newspaper. As mentioned, her evidence is that he refused. She said that at that time she was suffering pain in the breasts and in the region of the axilla (the area between the chest and the arms). In her second affidavit sworn on 22 November 1995, the appellant referred again to seeing the sixth respondent late in 1991. She said that she requested him to arrange for a bone marrow and liver biopsy. She said he refused on the basis that it was a dangerous procedure. He said that he would not request his own family to undergo such a procedure as it was dangerous and a patient could die as a consequence of the procedures. The appellant said she requested the tests to be done because she had read an article in a newspaper about the migration of silicone. It was for that reason that she wanted the tests done. It was at about this time that she was asked to be a member of a television panel on the program conducted by Andrew Olley. She there met Dr Olbourne. She said that in the course of the program, she learnt a little more about implants. After it was over, she contacted Dr Olbourne and asked him to intervene on her behalf to have the sixth respondent carry out the tests to her liver and bone marrow whilst he was doing the operation to remove the implants. The implants were removed by the sixth respondent at the Hornsby Hospital on 29 November 1991. The appellant said that she had obtained during mid 1991 some documents from a group called "Public Citizen", an organisation headed by Mr Ralph Nader in Washington DC. She received "some literature" on breast augmentation that primarily dealt with the product manufacture problems and their aftermath. The appellant photocopied the information she had received from "Public Citizen" and posted it to persons who had contacted her after the television program. She said after the program that women contacted her and an organisation called "The Womens' Implant Information Network" was formed. The group kept articles that various people photocopied at her home and sent them to people who asked questions about implants. She added, "We helped each other as best we could". The appellant said that at about this time material was obtained from the Command Trust Network in the United States. It was a similar group to the one that had been formed in Australia. 10 UNREPORTED JUDGMENTS The group was founded in late 1991. It grew during 1992. Photocopied material was held at the appellant's home. At the end of 1992 "we took up space at Parramatta and formally had office accommodation". In about June 1992 the appellant made an appointment to see a Dr Cashman who is a solicitor often instructed by members of consumer organisations and the like. She raised the question of initiating proceedings against the manufacturers of the implants "or anybody else on my part". She was advised by Dr Cashman to become part of a class action in the United States. She accepted this advice. Dr Cashman did not discuss "the potential" of the appellant being able to sue a doctor for negligence. In 1991 the appellant spoke to Mr Knibb, another solicitor, and asked whether she could sue "the doctor". She was advised that she would never win a case against a doctor and was told to forget about it. Mr Knibb, so she said, told her it would cost her a great deal of money. Mr Knibb has not given any evidence in this matter. So far as the record shows, he is unaware of the proceedings and the evidence given by the appellant in relation to her conversation with him has to be understood in that light. The appellant said that she began to suspect that not only were the manufacturers at fault in the design and manufacture of the product, but that doctors would have been aware at the time the implants were inserted during the 1980s of the product problems. The appellant said she was not advised of those problems. She does not say when she began to suspect that the doctors might be involved but it must have been before the end of 1992 if one has regard to the context in which this statement appears in her affidavit. It is to be observed that she does not take the matter back as early as the 1970s. The appellant said that in November 1992 she changed solicitors in relation to her claim against the manufacturers "as part of the class action of the United States". She said that in 1993 she spoke to a Dr Pierre Blais of the United States about implants. He gave her a great deal of information about the manufacturers "further compounding my suspicion that the doctors would have been aware of the product faults well before the implants were inserted into my body". That, of course, would have taken the allegation back into the 1970s. The appellant said that in February 1994 a Dr Henry Jenny delivered a lecture at the Parramatta Town Hall on breast implants. He was an American medical practitioner "with extensive experience with implants". He suggested that perhaps the Doctors may be at fault if they knew, which he suspected they did, of the imperfections of the implants being inserted particularly during the 1980s. On 21 June 1994 the appellant consulted another solicitor, Mr Fegent. He is her solicitor in the present proceedings. She was advised by Mr Fegent that she would need to establish that the doctors had knowledge prior to the implants being inserted. Presumably, the knowledge referred to was knowledge of the deleterious effects of silicone if it escaped into the body. Mr Fegent explained to the appellant the type of information which would be needed to establish a claim. She was advised by him that, in his opinion, she would have twelve months after she became aware of a material fact of a decisive nature establishing that the doctors would have had the relevant knowledge, in which to commence the action. The reference to knowledge is, as I understand the affidavit, a reference to knowledge of the harmful effects of silicone in the body. Mention of a period of twelve months was presumably an indirect reference to the provisions of s58 of the Act to which I shall refer in due course. URJ BATES v ENDREY-WALDER (Sheppard AJA) 11 Annexed to the affidavit sworn by the appellant on 22 December 1995 are a large number of articles and other documents dealing generally with this problem. The annexure's to her affidavit occupy over 150 pages of the record. It would not be useful to recount the entirety of the ground which they cover. Reference to a statement by Ms Merilyn Evans, a trained nursing sister, annexed to the appellant's affidavit will be sufficient for present purposes. The statement is annexed to the affidavit sworn by the appellant on 21 October 1996 to which I now refer. The appellant said that by 1991 she could no longer bear the pain she was suffering. She asked the sixth respondent to remove the implants after the fifth respondent had refused. She said that she had a suspicion at that time that the silicone might have leaked into her body. She said she had been continually reassured that there was no real danger. She said that in 1994 her health had deteriorated to the point where pethadine and other strong analgesics would not relieve her pain. She consulted Dr Hodgkinson who operated on 8 February 1994 and removed "one and one half pounds of silicone-impregnated tissue from my chest, axilla and pectoral muscle". The appellant said that in November 1994 Dr Hodgkinson removed lymph nodes. Reports of Dr Hodgkinson are annexed to the appellant's affidavit. Dr Hodgkinson diagnosed her as suffering from post-silicone gel complications caused by ruptured implants, leaking implants and systemic symptomatology. The appellant said that her health had continued to decline. The Medical Evidence: Also annexed to the appellant's affidavit of 21 October 1996 is the statement of Ms Evans from which the appellant said she had become aware of the risks and injuries consequential upon implants that were causing her problems. The report by Ms Evans comprises 21 pages of closely typed material. It is dated October 1996. It is in effect a review of the appellant's case from a medical point of view and a reference also to a number of articles appearing in medical journals and other publications. It is unnecessary to refer to the whole of it. The important part of it is that which deals with the state of knowledge that there was from time to time concerning the effects, or the possible effects, of free silicone in the body. There was some discussion during the course of the argument about Ms Evans' qualifications but it seemed to be common ground that the report was part of a doctoral thesis. Nevertheless, I cannot find any reference to her qualifications in the record. She appears, however, to have been treated in the proceedings at first instance as a person who could express opinions on matters of the kind which she addresses. I propose to proceed on that basis. The summary of published material which appears in Ms Evans' report is dealt with under a heading "What Was Known". Ms Evans said that for several decades beginning in the 1930s and increasing rapidly during the 1950s, 1960s and 1970s, innumerable papers on the properties and effects of silicone and silicone gel-filled breast implants had been presented at professional meetings in the United States and in Australia. Hundreds more had since been published in literature available to aesthetic surgery practitioners. The report says that a responsible practitioner using such materials should have been aware of the ongoing debates and uncertainties in the field. There are then listed a large number of publications. These are summarised. They begin with a publication in 1959. In 1967 Ashley et al published, "The Present Status of Silicone Fluid in 12 UNREPORTED JUDGMENTS Soft Tissue Augmentation in Plastic and Reconstructive Surgery". It was there said that the clinical use of silicone in man had preceded any responsible and controlled experiments in animals. It was noted that the unresolved problem relating to silicone was migration to distant organs. Caution was expressed against its use for mammary augmentation. The authors reported one case of unnecessary force during the injection of silicone that might have caused blindness in one patient by possibly disrupting the arterial or venous system. They also cautioned against using silicone fluid with any additives including olive oil. There are some further publications referred to dated 1969 and 1970, and in 1974 it is said - this seems to come from Ms Evans herself - that the foreign body reaction as a chronic response of soft tissue to a breast implant had been well known since 1974. There does not seem to be support for this in any of the previously mentioned papers. Ms Evans said that between 1968 and 1979 there were cosmetic/aesthetic surgery texts used by practitioners in Australia which had chapters setting out risks and complications of implants as well as the newest surgical or pharmacological remedies and preventative measures. In 1980 there was what was described as a most comprehensive text outlining "the well established adverse outcome of any devices implanted into the body (including breast implants)". There were other publications in the 1980s. Later, Ms Evans said that practitioners of aesthetic/cosmetic surgery with breast implants had had access to information about implants from many sources. She said that from the time breast implants were first marketed and used, plastic/aesthetic/cosmetic surgeons from Australia had travelled to the United States and Europe and attended clinical, research and scientific meetings and observed presentations by colleagues, researchers and scientists. Mutual interest in the development and application of silicone had resulted in collaboration between manufacturers, research institutes and professionals. Ms Evans eventually said that it was important to note that "the accepted 'documented' risks of silicone gel-filled prostheses has recently been cited as being 'statistically small' and 'medically manageable'". Reference is made to a publication, ASPS Resource Guide 1993 p2 (ASPS is apparently a reference to the American Society of Plastic Surgeons). There follow some comments by Ms Evans explaining why the risks were statistically small which tended to suggest that they were, for this reason, misleading. Ms Evans concluded her report by saying that the controversy about the quality, safety and efficacy of breast implants signalled the end of an era where professional/commercial interests had taken precedence over the interests of consumers. Before leaving Ms Evans' report, I should say that counsel for the appellant placed particular reliance on the statement, earlier referred to, that a responsible practitioner using such materials as those to which she had referred should have been aware of the ongoing debates and uncertainties in the field. Ms Evans' report needs to be compared with the affidavit of Dr Olbourne who swore an affidavit on behalf of the respondents. He is a specialist plastic surgeon who had been in practice for 22 years at the time he swore the affidavit in October 1996. He summarised the appellant's evidence to which he had been referred. He said that, from the early 1970s until about 1991, the types of breast implant procedures performed upon the appellant were common. The types of silicone implants regularly used for this type of operation within Australia over this period were manufactured and marketed by large international companies which enjoyed a good reputation with the medical community. He said that, at the time URJ BATES v ENDREY-WALDER (Sheppard AJA) 13 of the appellant's first operation in 1976, there were many breast silicone prostheses available for this type of operation from large and reputable international manufacturers which were the types of prostheses used for this type of operation at that time. He referred to the prostheses inserted into the appellant's breasts at a later stage in the same terms. He said that prior to 1991, the known complications of this type of procedure were local to the operation. The main complication was the possibility of capsular contraction which involved the prosthesis becoming hard, the breasts becoming misshapen, and the implants sometimes migrating. Another complication was necrosis, particularly of the nipple, and local infection. The problem of capsular contraction could sometimes be overcome by performing a procedure known as a capsulotomy which involved exerting external pressure upon the prosthesis so as to soften it. Dr Olbourne said that all these complications (excluding infection) were suffered by the appellant. He said that they were significant. He also said that over the period prior to 1991, it was known that, if the types of complications suffered by the appellant continued, it would result in the possible removal of a breast prosthesis as did occur in November 1991. The problems suffered by the appellant were serious. They would have involved constant pain, embarrassment, eventual scarring and disfigurement both by reason of the scarring and the loss of the breasts. Usually these types of complications would cause depression. Dr Olbourne said that prior to 1991 amongst the medical profession (both specialists and general) practising in Sydney and Australia, "the association (if any) between atypical (or typical) rheumatic syndrome and breast surgery of the type performed upon the appellant was unknown" subject to certain matters to which he referred. In the balance of the affidavit "rheumatic syndrome" is referred to as "the syndrome". Dr Olbourne said that the overwhelming bulk of medical publications prior to 1991 did not make any suggestion of an association between gel implant syndrome referred to in one of Dr Hodgkinson's reports and breast augmentation surgery. The bulk of medical publications described breast augmentation surgery as being safe subject to the local complications referred to above. Generally speaking, although the local complications could cause serious problems, they usually could be treated. In saying this, Dr Olbourne did not wish to be taken as having diminished the seriousness of the complications to the appellant including consequential depression and scarring. Dr Olbourne said that, prior to 1991, for a medical practitioner, whether specialist or general, to exercise reasonable care and skill, it would have been necessary to advise the patient of the local complications associated with breast augmentation surgery. There was, however, no need, in his opinion, to advise of systemic problems as being a complication of this type of surgery. He said that it could be argued that over the years some medical publications (contrary to the bulk of such publications) speculated (or at the highest referred to the possibility perhaps) of an association between breast implant surgery and gel implant syndrome. But he emphasised that the overwhelming volume of medical publications confined the complications to local complications. Dr Olbourne said that the bulk of the medical publications that confined the complications to local complications were written by experts in the field. But he added, "With hindsight, it may be argued [as does occur in the report of Ms Evans] that there was the possibility of an association between the syndrome and breast implant surgery". But he said that the syndrome was not a known complication. At its highest, it was a possible complication. He said that, in his opinion, and upon the basis of his familiarity with the literature, the best that could be said for the appellant was 14 UNREPORTED JUDGMENTS that there was speculation as to whether or not the syndrome was a complication of this type of surgery. As I understand him, he is speaking about a period earlier than 1991. Para8 and para9 of the doctor's affidavit are as follows: "8 In the event of someone suffering from the syndrome following breast augmentation surgery, it would have been reasonable for a medical practitioner prior to 1991 to advise the patient that despite any temporal connection between the syndrome and breast augmentation surgery, the syndrome was not a known complication of the surgery; but that by reference to the type of material referred to in Ms Evans' report there was speculation as to whether or not there was an association between the surgery and the syndrome. 9 In 1991, there was an increase in the number of anecdotal reports published in medical journals which raised the possibility of an association between the syndrome and breast implant surgery. Although it was not a known complication, at that point in time because of the increase in the publication of anecdotal reports that raised this possibility, the syndrome became a possible complication of the surgery. After 1991, in my view, it would have been necessary for a medical practitioner exercising reasonable care and skill in Sydney and Australia, to have advised patients of this possible complication if they wished to undertake breast augmentation surgery." Dr Olbourne referred to some further publications after 1991 and then addressed the evidence given by the appellant concerning the fact that 1.5 pounds of silicone-impregnated tissue had been removed from her chest axilla and pectoral muscle. He said that the allegation appeared to be inconsistent with the reports of Dr Hodgkinson annexed to the appellant's affidavit together with the surgical pathology report which was also annexed thereto. It showed scattered silicone granulomata being present in the left chest only and only on microscopic, as opposed to macroscopic, examination. All other samples revealed no evidence of silicone granulomata. In the event of there having been 1.5 pounds of silicone-impregnated tissue removed from the appellant's chest axilla and pectoral muscle, the silicone granulomata referred to in the pathology report would have been more extensive. Dr Olbourne also said that there would not have been 1.5 pounds of tissue to be removed in 1991. By that time the breasts had been removed. All her breast tissue would have been removed and only folds of skin would have remained after the removal of the silicone implants. He said that, "Even if I be wrong in the opinions expressed" the pathology report would indicate at most minimal leaching from the breast implant. In the unlikely event of there being an escape of silicone into the appellant's body, not only did the pathology report indicate the escape would have been minimal, it also demonstrated that in all likelihood the escape was localised and appropriately isolated by the appellant's immune system. He then turned to the appellant's alleged rheumatic syndrome. He said there were many types of rheumatic symptoms and syndromes. He also said that the symptoms referred to in Ms Evans' report could be caused in a number of ways. Most people over 50 years of age had symptoms of rheumatism although not to the extent alleged to be suffered by the appellant. He said that he did not know whether the appellant was in fact suffering from the syndrome and in particular a syndrome which involved the systemic problem. For such a diagnosis to be made, blood tests would have to be carried out. He did not know whether any such tests had been done. URJ BATES v ENDREY-WALDER (Sheppard AJA) 15 It is appropriate to pause here to say that there is a marked conflict between the evidence of Ms Evans and Dr Olbourne. It is not possible to resolve that conflict on this appeal. Earlier in this judgment I emphasised the nature of the exercise which was being undertaken. In a moment I shall refer to the relevant statutory provisions in order to indicate what it is that a person in the position of the appellant has to establish before she is entitled to the exercise of a court's discretion to extend the period of limitation. One of the questions to be determined in this appeal is whether there was evidence of the matters required by the statute to be established before a judge comes to the discretionary exercise. Assuming these to have been established - the respondents contend that they were not - there is then the question whether his Honour in refusing the application wrongly exercised the discretion vested in him. The next main matters to be referred to are therefore the legislation, and the way in which the primary Judge approached the problem which he had. Only then can one come to a conclusion what the outcome of the appeal should be. Before those exercises are undertaken, however, there is some short further evidence to be referred to. The evidence is contained in two affidavits filed on behalf of the respondents. The first of these is that of Ms G A Haysom who said that she was a solicitor in the firm representing "the first, fourth, fifth and sixth defendants". The record indicates that the firm is also acting for the second and third respondents. I assume that the omission of reference to them in the affidavit was an oversight. Ms Haysom said that she had been informed by the first respondent that, apart from an account card, he no longer had any records relating to his treatment of the appellant nor any recollection of having treated the appellant. Ms Haysom also said that she had been informed by the third respondent that he no longer had any records relating to his treatment of the appellant, nor had he any recollection of having treated her. The other affidavit is that of the second respondent. He said that he no longer had any medical records relating to the appellant apart from two early post-operative photographic slides. Most records he held went back only to the beginning of 1978. Most of these were shredded some years ago when he moved his surgery. He said that he recalled the appellant and the general details of her case but he believed he would need to have reference to his clinical records in order to ascertain the "finer details" and to meet the claim made against him. There was no objection to Miss Haysom's affidavit and no cross-examination of the second respondent on his. So far as the material in the record discloses, no attempt has been made to obtain the slides referred to in the second respondent's affidavit. It would also appear that no attempt has been made to obtain the records of any of the hospitals to which the appellant was admitted for the treatment which is described in her evidence. Enquiries of the hospitals may, of course, have been made, but it seems strange that the evidence would not have contained either statements to the effect that there were no extant hospital records, no relevant hospital records or a copy of what records there were. It remains to say that there is no evidence, hearsay or otherwise, of the availability of records to the fourth, fifth and sixth respondents or of the state of their own recollections concerning the treatment by them of the appellant. The Legislation: The directly relevant provisions of the Act are to be found in s58, s60G and s60I. Division 3 of Pt3 of the Act deals with personal injury cases. Pt3 deals generally with the postponement of the bar. S58 is to be found in Subdivision 1 16 UNREPORTED JUDGMENTS of Division 3 which is entitled "Discovery". The heading to s58 is "Ordinary action". S60G and s60I are to be found in Subdivision 3 of Division 3. The Subdivision is headed "Discretionary extension for latent injury etc". S60G is headed "Ordinary action (including surviving action)" and s60I "Matters to be considered by court". Subdivision 3 opens with s60F which states the purpose of the Subdivision. It is said to be to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. The procedure is said to be available for causes of action accruing on or after 1 September 1990 and also, by the operation of Schedule 5, for causes of action that accrued before that date. I shall refer to Schedule 5 a little later. So far as relevant s58(1) provides that the section applies to a cause of action founded on negligence, nuisance or breach of duty for damages for personal injury. Subs(2) and subs(3) of s58 are as follows: "58(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that: (a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and (b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period, the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court,... the limitation period is extended accordingly. (3) This section applies to a cause of action whether or not a limitation period for the cause of action has expired: (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the cause of action." The expression "material facts of a decisive character relating to the cause of action" is defined in s57B. S57(1)(b) provides that the material facts relating to a cause of action include the fact of the occurrence of negligence, nuisance or breach of duty on which the cause of action is founded, the fact that the negligence, nuisance or breach of duty causes personal injury and the extent to which the personal injury is caused by the negligence, nuisance or breach of duty. $57B(1)(c) provides: "(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing: (i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action; and (ii) that the person whose means of knowledge is in question ought, in his own interests, and taking his circumstances into account, to bring an action on the cause of action;" URJ BATES v ENDREY-WALDER (Sheppard AJA) 17 The expression "limitation period" means a limitation period fixed by an enactment repealed or omitted by the Act or fixed by or under the Acct itself. S18A deals with actions for personal injury. The section applies to a cause of action founded on negligence, nuisance or breach of duty for damages for personal injury but does not apply to a cause of action that accrued before 1 September 1990. An action to which the section applies is not maintainable if brought after the expiration of a limitation period of three years running from the date on which the cause of action first accrued to the plaintiff or to a person through whom the plaintiff claimed. S18A of the Act was inserted into the Act by the Limitation (Amendment) Act 1990. Under the Act as it was before 1990 the period of limitation was six years rather than three years; see the former s14(1)(a) and s14(1)(b) of the Act as it was prior to the coming into force of the Limitation (Amendment) Act 1990. In consequence the only respondent who has the benefit of a three year limitation period is the sixth respondent. In the case of each of the other respondents, the limitation period was six years. S60G(1) provides that the section applies to a cause of action that accrues on or after 1 September 1990 founded on negligence, nuisance or breach of duty for damages for personal injury. S60G(2) provides: "(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." It needs to be understood, however, that the discretion provided for in s60G(2) does not arise to be exercised unless an applicant for an extension can show that the provisions of s60I are complied with. The discretion does not arise unless they are. The provisions of the section were referred to in argument as "gateway provisions". I consider that to be an apt description of their character. S60I(1) provides as follows: "A court may not make an order under s60G or s60H unless it is satisfied that: (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 para(a)(i)-para(a)(iii)." S60H deals with actions under the Compensation to Relatives Act 1897 and is of no relevance here. The provisions of s60I(2) are also of no relevance. The provisions of s60G and s60I need to be read in conjunction with s6(2) and Schedule 5 of the Act which deals with "further" transitional provisions. Cl4 of Schedule 5 is headed, "Existing causes of action for personal injuries may be extended where latent injury etc". So far as material cl4 is as follows: "4(1) S60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. 18 UNREPORTED JUDGMENTS (2)... (3) S60G and s60H so apply: (a) whether or not a relevant limitation period has expired: (i) before 1 September 1990; or (ii) before an application is made under either of those sections in respect of the cause of action; and (b) whether or not an action has been commenced on the cause of action before 1 September 1990; and (c) whether or not a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, been given (whether before, on or after that date); and (d)... (4) The court may make an order under s60G or s60H, in relation to a cause of action referred to in this clause, if an application for such an order is made within: (a) the period of 3 years referred to in s60I; or (b) the period of 3 years commencing on | September 1990. (5) For the purposes of this clause, a reference in Pt3 to a limitation period is to be read as including a reference to a limitation period as defined by this Schedule." It may be observed that the words "if an application for such an order is made" were inserted into the Act by the Statute Law (Miscellaneous Provisions) Act 1993 which, so far as material, came into effect on 15 June 1993. The expression "limitation period" is defined, so far as relevant for present purposes, in cll of the Schedule to mean a limitation period fixed by an enactment repealed or omitted by the current Act or fixed by or under a provision of that Act, ie the Act in its current form, including a repealed or omitted provision of the Act. Pt3 of the Act is the Part in which the directly relevant provisions of the Act for the purposes of this case are to be found. As mentioned, it is entitled, "Postponement of the Bar". It is the latter part of the definition which applies in the present case, so far as it concerns all but the sixth of the respondents, because, in the case of the other respondents, the period of six years was fixed by provisions of the Act which have since been repealed or omitted. It is the appellant's contention that the material date for the purposes of both s58 and s60G is a time in 1994 after Dr Hodgkinson treated her. That was in February 1994. Her case is that it was not until then that she had, to pick up the language of the definition in s57B(1)(c) of the Act, knowledge of material facts relating to her causes of action which were "of a decisive character". The principal facts upon which she relies are known risks that silicone might escape into her body from the implants and thus be harmful to her health. The Primary Judge's Reasons for Judgment: It is next appropriate to come to the way in which his Honour exercised his discretion in refusing the appellant the relief which she claimed. His Honour said that the application was made under s57B, s58, s60G and s60I of the Act. So far as s57B and s58 were concerned, he was of the view that in respect of the defendants, the "material facts of a decisive character relating to the cause of action" were "within the means of knowledge" of the plaintiff (ie the appellant) from a time immediately after the procedures carried out by the "first defendant in effect failed". Presumably, the reference to the first defendant should be a URJ BATES v ENDREY-WALDER (Sheppard AJA) 19 reference to the second defendant. The first defendant was a general practitioner who referred the appellant to the second defendant (respondent) for advice and treatment. His Honour said that from the time of those first procedures and onwards, the appellant knew, if her claim was accepted, that she had received no advice from the second respondent as to the possibility of there being difficulties, to put the matter at its lowest, with the prostheses. His Honour added that the appellant certainly received no advice in relation to "this silicone problem". It needs to be clear, and from what his Honour later said, I think it is clear, that there is no suggestion in the evidence that the appellant was suffering problems as a consequence of silicone escaping from the implants into her body as early as the 1970s and perhaps a good deal of the 1980s. Although the respondents did not give evidence on the matter, Dr Olbourne gave evidence on their behalf. Their case is that they had no reason in the 1970s or the 1980s to suspect that there was any such problem. His Honour said that the appellant from the time of the procedures carried out by the second respondent must be taken to have known from her own tragic experience that there was the danger of the implants not being successful. He said, "The fact that the effects of the prostheses 'leaking' silicone into her body were not within her means of knowledge until the time referred to in s58(2)(a) of the Act this does not assist her in this application". I have referred earlier to this provision and I do not refer to it again but one needs to have it in mind in understanding the approach which his Honour took. His Honour said that what he had concluded necessarily followed from the decision of the High Court in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234. As his Honour said, Do Carmo is authority for the proposition that the relevant paragraph of s57, the predecessor of s57B, referred only to the acts or omissions alleged to constitute a tort and not to legal concepts or causes of action. Deane J said (at 249) that ignorance of the existence of a cause of action was not, in itself, ignorance of a material fact for the purposes of the legislation. The ignorance of a material fact to which it referred was ignorance of factual matter in the ordinary sense and not ignorance either of the law itself or of the legal consequences of the material facts. The primary judge also referred to the judgment of Reynolds JA who had been a member of the Court of Appeal from whose decision the appeal to the High Court had been brought (Ford Excavations Pty Ltd v Do Carmo [1981] 2 NSWLR 253). Reynolds JA had said (at 262) that in order to give coherence to the legislation it must be understood as meaning that once an applicant had facts within his means of knowledge which fulfilled the requirements of the definition, then any fact which later came within his means of knowledge, even if it could be described as a material fact could not answer the description of being of a decisive character. Wilson J, who wrote the principal judgment in the High Court, approved of Reynolds JA's judgment (at 246). Counsel for the appellant strongly submitted that his Honour's conclusion based on Do Carmo was erroneous. Counsel said that his Honour's conclusion in the passage quoted from his judgment was not a consequence of the decision in Do Carmo. In passing I would say, however, that, in the light of his Honour's earlier remarks and also some later ones, there is a question whether he intended to put the matter quite as he has in the challenged paragraph. The judgment was an oral one obviously delivered against the background of a very busy list and I think some allowance must be made for this. 20 UNREPORTED JUDGMENTS His Honour next said that the fact that the plaintiff (ie the appellant) might not have known all the material facts of a decisive nature in relation to the cause of action, for example "the facts as to the effect of silicone" did not enable her to call s58 in aid and he referred to the judgments of Wilson and Deane JJ in Do Carmo. His Honour said that "this additional fact" namely the knowledge of the silicone problem made the difference between the appellant having and not having a worthwhile cause of action which, so his Honour said, was considered by Deane J in Do Carmo (at 251) to have been a matter of critical importance. His Honour said that, in his view, the appellant had knowledge of material facts of a decisive character which would have supported an action in negligence against the respondents, "each and every one of them" and therefore could not call the section in aid. His Honour continued: "As in Do Carmo's case however, here in my view, the Plaintiff had within her means of knowledge the critical particular facts of her case against all the Defendants, perhaps I am repeating myself and I again refer to Deane J at p252. Those facts included for example lack of advice in effect as to the effectiveness or otherwise of the prostheses and the fact that in her case, they had in fact failed and in relation to that particular matter, I would refer of course to Dr Olbourne's comments about the local complications which were well known at the material time." In the passage to which his Honour referred from the judgment of Deane J in Do Carmo, Deane J said (at 252-3): "The facts not within the appellant's means of knowledge were (i) that there were, during the period in which the appellant was employed by the respondent, practical and available steps which could have been taken to reduce the level of silica dust and (ii) that the effectiveness of those steps was well known in the building industry throughout that period. On the other hand, the appellant had within his means of knowledge the critical particular facts of his case against the respondent. Those facts included the nature of his ailment, his exposure to dust in his employment with the respondent, that his ailment was "a dust disease" which "could or must be attributed to his period of employment" with the respondent and, most important for present purposes, that the respondent had taken no steps at all to minimize the level of silica dust to which the appellant had been exposed in the course of his employment. Those facts constitute the particular or primary factual basis of the appellant's case in negligence against the respondent. The facts of which the appellant was unaware were general facts of which any appropriate adviser on standards or safety in the building industry would be aware and which would constitute part of the context in which appropriate advice on whether the respondent had been guilty of negligence had been formulated.... it appears to me to be plain that the facts within the appellant's knowledge were such as to lead a reasonable man, knowing those facts and having taken the appropriate advice on them, to conclude that the appellant had a worthwhile cause of action against the respondent. In other words, the facts within the appellant's means of knowledge were, of themselves, adequate to satisfy the requirement of material facts of a decisive character'." The primary judge next turned his attention to s60G and s60I. He said all that the appellant had to do to call in aid s60G was to claim to have a cause of action as opposed to showing that there was available evidence which would support a cause of action. He compared the provision with s58. He referred to the judgment of Sperling J in McLean v Commonwealth of Australia (unreported, Supreme URJ BATES v ENDREY-WALDER (Sheppard AJA) 21 Court of NSW, 28 June 1996). His Honour said that Sperling J pointed out that fanciful claims could not qualify. His Honour continued: "Tt seems to me however with great respect to his Honour that the claim must bear upon negligence on the part of a medical practitioner and so far as Dr Williams is concerned, I do not think that the claim made by the Plaintiff in his case could support a cause of action and I [do] not think that the Plaintiff can call in aid s60G by merely making the claim that she does make in relation to Dr Williams. On the other hand, so far as the other Defendants are concerned, the matter is quite different." Dr Williams is the sixth respondent to this appeal. Reference was then made to the provisions of s60I. His Honour said that the appellant had to satisfy him that she was unaware of the nature or extent of the personal injuries she suffered (s60I(1)(a)(ii)). His Honour continued: "The Plaintiff has satisfied me that she was unaware of the extent of the personal injury suffered and this is despite of course the controversy as to whether silicone can have the effect which is claimed by the Plaintiff but nevertheless at the risk again of repeating myself, I am of the view that she was unaware of the extent of the personal injury suffered in that she was not aware until the expiry of the limitation periods of the silicone problem, although in the television interview, there is no doubt she was complaining in effect of problems relating to her immune system but the problem is, having come to that conclusion, would it be just and reasonable to make an order under s60G. Again I would refer to the whole tragic history of this affair but I come to the conclusion which I have already stated I think on more than one occasion during these lengthy reasons that the history shows that what was being done by the various medical practitioners was after Dr Milroy's procedures consisted of efforts on their part to rectify this parlous situation in which the Plaintiff found herself after the very first procedure which she had. In other words it seems to me that the Defendants, after Dr Milroy were merely trying to assist the Plaintiff to overcome this problem. The only complaint of course against Dr Williams is the one that he did not keep the tissue referred to and did not have the pathological tests carried out. I have already held, so far as he is concerned, that the matter does not fall within s60G but so far as the other Defendants are concerned, I again repeat that in my view, it was just a case of their trying, as best they could, to rectify a situation which resulted from the first procedure carried out by Dr Milroy and despite the [protestations] of the Plaintiff, I think the inescapable inference is that she was content, despite the consequences, to allow them to assist her in the way in which in fact they did and it seems to me that even on that basis alone, it would not be just and reasonable to make an order under s60G but the matter is not to be determined solely upon that basis." His Honour referred to the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. I shall refer to this case and some other authorities later. His Honour referred to the different legislation but said that, although the legislation was not quite the same as that contained in s60G, there was no argument before him that the decision in Brisbane South was not relevant to the question whether it would be just and reasonable under s60G to extend the limitation period. There was similar common ground before us although that was only so in relation to the exercise of the discretion conferred by s60G(2). The gateway provisions of s60I are not affected by the decision in Brisbane South. 22 UNREPORTED JUDGMENTS His Honour referred at length to dicta from the judgment of McHugh J (see 186 CLR at 551-3) and said: "\.. it seems to me that here having regard to the fact that the initial problem arose over 20 years ago and having regard to the fact that the Plaintiff knew or must be taken to have known of the problems which necessarily arose as a result of this surgery, they were problems relating to the actual failure of the prostheses and having regard to the fact that all the other Defendants in my opinion were doing were to assist her in the problem which in fact arose, that it would not be just and reasonable in all the circumstances to make an order under s60G and in the exercise of my discretion I refuse to make an order extending the limitation period and in relation to all the matters, I dismiss the applications." He thought that the claim made against the sixth respondent had no substance whatsoever so that the appellant could not call in aid the provisions of s60G. He said that if he were incorrect in that conclusion, he would treat the sixth respondent in the same way as he treated the other respondents. Counsel for the appellant drew attention to the statement made by his Honour in the above quoted passage that the appellant's knowledge related (counsel would say and only related) to the actual failure of the prostheses and that all respondents other than the first and second were doing was to assist the appellant in the problem which she had. In those circumstances his Honour did not think that it would be just and reasonable to make an order under s60G. Counsel said that the fact that the third, fourth, fifth and sixth respondents may have been endeavouring to assist the appellant provided no reason in itself why a case based on negligence should not succeed against them. He submitted that the fact that a doctor undertakes a procedure to treat a patient with every intention of relieving that person's problems was no reason why the person, if the procedure were carried out negligently, should be deprived of an action. The action is one in negligence. Most professional people endeavour to assist their patients or clients. Regrettably, from time to time, what they do or fail to do amounts to a breach of duty to those they are endeavouring to help. The fact that his Honour gave this matter so much weight was, so counsel submitted, a clear indication that his Honour's discretion, at least so far as concerns the third, fourth, fifth and sixth respondents, had miscarried. There is a question whether his Honour's statement correctly reflects what he intended to say. On the face of the appellant's evidence, the procedures she was advised to have by both the first and second respondents failed. They failed partly because she was not a suitable candidate for breast implant surgery and partly because of the hardening of her breasts coupled with their migration (the expression used by Dr Olbourne). This, according to Dr Olbourne, was a known risk of the procedure in the 1970s, yet the appellant had not been warned, so she has said, that there was this risk. So the doctors who came after the second respondent were confronted with a problem which they endeavoured to rectify. It may well be, depending on the evidence that may be given if the action is ultimately tried, that the fact that that was the case tended to reduce any culpability they might otherwise have had. Nevertheless, I have difficulty in perceiving the relevance, for the purposes of this application, of his Honour's statement to the effect that all a number of the respondents were endeavouring to do was to assist the appellant. URJ BATES v ENDREY-WALDER (Sheppard AJA) 23 Determination of the Questions to be Decided; the Case Based on s60G: The case is based either alternatively or cumulatively on s58 and s60G of the Act. The appellant relies on both but will be entitled to succeed if the matters she has to establish are established in relation to either one. It is necessary, therefore, to consider her case under s58 separately from her case under s60G. I find it convenient to deal with her case based on s60G first of all. It is first necessary to consider the gateway provisions of s60I. As mentioned, these do not involve the exercise of any discretion. His Honour found that the appellant had established the matters which she needed to establish in this respect. In a notice of contention, counsel for the respondents disputes this. In this regard, reference now needs to be made to Harris v Commercial Minerals (1996) 186 CLR 1. The Court was there concerned only with the provisions of s60I(1). It was not concerned with the exercise of the discretion conferred by s60G(2). If the matters raised in the notice of contention are rejected, the question of discretion will arise. The appellant will only be entitled to succeed on this appeal in that respect if he establishes that the exercise of discretion by the primary Judge miscarried. The cause of action relied upon in Commercial Minerals was an action for negligence for personal injury. The employee was suffering from a dust disease and accordingly the matter had the Dust Diseases Tribunal. The Tribunal had ordered that the limitation period be extended under s60G of the Act on the ground that it was satisfied that the plaintiff was unaware of the nature or extent of the personal injury suffered at the expiration of the limitation period or at a time before that expiration when proceedings might reasonably have been instituted: see s60I(1)(ii). The employee had brought an action for damages against three companies claiming damages for negligence and breach of statutory duty. His statement of claim alleged that he suffered from silicosis as the result of his exposure to dust during the course of his employment. Each of the defendants had employed the employee for various periods, the first of which commenced in 1953. Each employer was engaged in processing raw materials for industrial uses, a process which exposed the employee to considerable quantities of silica dust. As a consequence, he contracted silicosis. In a joint judgment, the Court said that the disease was idiosyncratic in the sense that its precise course was not predictable. In most cases isolated nodules of fibrosis appeared in the lung. At some point the employee developed a progressive massive fibrosis which was not a necessary consequence of silicosis. The Dust Diseases Board made an assessment in 1971 and informed the employee that he had silicosis and had a ten per cent disability. Thereafter, although the employee was employed in tasks that rendered him less likely to encounter dust, he was still exposed to dust to an extent. His condition deteriorated. The Board assessed his disability at forty per cent, in 1982 at fifty per cent, in 1985 at sixty per cent, at the commencement of 1986 at seventy per cent, and later that year at one hundred per cent. When the action was commenced, the employee's right of action against two of the defendants was statute-barred. So was his right of action against the third defendant except for causes of action that had accrued during the last seventeen months of his employment from 25 March 1985 to 15 August 1986. But the Court noted that s60G together with Schedule 5 to the Act provided for the extension of limitation periods in actions for personal injury accruing before 1 September 1990. 24 UNREPORTED JUDGMENTS The Court made reference to Dedousis (supra). It was said (at 8) that Dedousis had decided that, in cases coming within Schedule 5 to the Act, the effect of cl4(4) of the Schedule was that an applicant must satisfy the requirements of s601(1) and not s60F of the Act. In Dedousis the Court had said that this effectively resulted in cl4(4)(b) of the Schedule inserting an alternative time limit in s60I(1)(b) where the Court was considering an application for extension in relation to a cause of action that accrued before 1 September 1990. The result was that the plaintiff was required to satisfy the provisions of s60I(1)(a) and then satisfy the Court that his application for an extension was brought within the time limit specified in either cl4(4)(a) or cl4(4)(b). If that were the case, the Court then had to be satisfied that it was just and reasonable to extend the limitation period. In Commercial Minerals (at 8) the Court said that, consequently, if the cause of action accrued before 1 September 1990 and an applicant made an application for an order to extend the limitation period before 1 September 1993, s60I(1)(b) was satisfied. In Commercial Minerals the critical question was whether the employee satisfied the provisions of para(a) of s60I(1). It will be recalled that that provision makes it a requirement of the Court's jurisdiction to make an order under s60G for an applicant to satisfy it that the application was made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in para(a)(i)-para(a)(iii). The Court said (at 8-9) that, having regard to the diagnosis of silicosis in 1971 by the Board, it was clear that the employee failed to establish that he did not know that personal injury had been suffered within the meaning of subs(1)(a)(i) of s60I. It followed that his application for an extension could only succeed by showing that he was unaware of the nature or extent of the injury or unaware of the connection between the injury and his employer's acts or omissions. The second alternative was not relied upon. The Court then proceeded to consider the provisions of s60I(1)(a)(ii) which provides that a court may not make an order under s60G unless it is satisfied that the plaintiff was unaware of the nature or extent of personal injury suffered. That provision is relied upon in the present case but the appellant also relies upon the provisions of para(a)(iii) which provides that the court may not make an order under s60G unless it is satisfied that the plaintiff was unaware of the connection between the personal injury and the defendant's act or omission. It will be remembered that the subparagraphs of para(a) are alternatives. It is enough if the appellant establishes the matters referred to in any one of them. The Court posed the question (at 10) whether the paragraph referred to the nature or extent of the injury at the time when the limitation or earlier period expired, or whether it referred to the nature or extent of the injury at the time of the application, or some other time. It said that, if the first construction were correct, the applicant would have to prove the nature or extent of the injury at the expiration of the limitation period and that he or she was unaware of either its nature or its extent at that time. Any subsequent consequences or developments of the injury would be irrelevant. On the other hand, if the second construction were correct, an applicant would have to prove the nature or extent of the injury at the time of the application or other time and then show that at the expiration of the limitation period he or she was unaware of the nature or extent of the injury as proved at the time of the application or other time. The Court referred (at 10- 11) to the difficulty of determining which of these constructions was the correct one, and also to cases decided in the Tribunal and in this Court. The Court went on to say (at 11): URJ BATES v ENDREY-WALDER (Sheppard AJA) 25 "... 1t seems unlikely that Parliament would have intended that para(a) should raise an issue as to whether an applicant was aware of a consequence of an injury which at the expiration of the limitation period did not exist, but which developed later. In the present case, for example, the worker asserted that he suffered from impotence and depression as a result of his silicosis. He claimed that these conditions developed well after all the limitation periods had expired. If the impotence and depression are part of "the extent" of his injury for the purpose of para(a), it would have required considerable foresight on his part to have been aware of them - unless he had knowledge that impotence and depression are the natural consequences of silicosis. The textual and policy considerations in favour of the first construction are strong. But the practice of the courts in New South Wales and the Federal Court is to apply the second construction. Those courts regularly take account of consequences that manifested themselves long after the expiration of the limitation period. This seems the better view of s60I(1)(a)(ii). The "extent" of an injury must include all its consequences. It is not an unnatural reading of s60I(1)(a)(ii) to hold what the court must consider is the total extent of the applicant's injury in determining whether, at the expiration of the limitation or earlier period, he or she was aware of the extent of the injury. Unless that construction is adopted, the Act will fail to provide for the very sort of case for which the legislation is designed to provide a remedy. That is to say, the case where the most serious consequences of an injury only arise after the expiration of the limitation period." The Court referred inter alia to CRA Ltd v Martignago (1996) 39 NSWLR 13 per Clarke JA at 18 and to Commonwealth v Dinnison (1995) 56 FCR 389 at 403-4. In the latter case the applicant was aware during the limitation period that he had an anxiety state. But it was only after the expiration of the period that he became aware that he had a psychiatric illness. It was held by the Full Federal Court that he was not aware of the extent of his injury. Dicta from the judgment of Clarke JA in CRA were cited (39 NSWLR at 20-21). Clarke JA had said (at 20-21) that courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury the nature of which was known. Practically speaking, the resolution of the enquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second enquiry as to the extent of the injury. His Honour instanced a finding that an applicant was aware that he or she had suffered a serious neck injury involving damage to the spine. He said that this would in general provide an answer to the enquiries as to both nature and extent. He emphasised that the Court was concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant. In Commercial Minerals the High Court went on to say (at 13) that expectation as to the likely consequences of an injury was clearly an element in determining an applicant's awareness of the extent of the injury. When the relevant injury was a disease, the expectation of the applicant at the expiration of the limitation period as to the likely course of the disease would usually be determinative of whether he or she was aware of the extent of the disease for the purpose of s60I(1)(a)(ii). Furthermore, it emphasised that it was the applicant's expectation as to the course of the disease, not that of the reasonable person, that was relevant. Thus, if an applicant knew at the expiration of the relevant period that he or she suffered from a diseased spine, it did not necessarily follow that the 26 UNREPORTED JUDGMENTS person was aware of the extent of personal injury if eventually the disease caused the vertebrae to collapse. Whether the applicant was aware of the extent of the injury would depend on whether that person was aware that there was a real chance that the vertebrae would collapse as the result of the disease. Reference was then made to another decision of this Court, Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 per Kirby P at 704. It was there held that early signs and symptoms might not constitute sufficient indication of the nature and extent of personal injury. In FJ Walker Ltd v Webber (unreported, NSW Court of Appeal, 16 November 1989) (at 4), this Court stated that one can know the nature and extent of one's injury even if one is ignorant of the final form which it will take. Few plaintiffs ever know this even at the time of trial and it would be difficult to attribute to Parliament an intention that potential plaintiffs may completely disregard limitation periods merely because they are unable to predict their final state. The High Court then said (Commercial Minerals at 13-14): "These statements imply, correctly in our opinion, that an applicant may have been aware of the extent of his or her injury even though he or she does not expect all its precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all its pathological and physiological incidents. If the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s60I(1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expected to occur, the applicant will be aware of the extent of the injury. The nature or extent of the injury is not synonymous with the precise pathology or consequences of the injury. Thus the New South Wales Court of Appeal has held that an applicant who knew that he had a disc lesion that caused him great pain and that the condition could only be alleviated by a spinal fusion was aware of "the extent" of his injury although he was unaware "that his spinal cord nerves were caught in damaged discs". (CRA Ltd (1996) 39 NSWLR 13 at 21 per Clarke JA) If an applicant can satisfy the requirements of s60I(1)(a) merely by proving a lack of knowledge at the expiration of the limitation period of all the later consequences of the injury, it will no doubt make the passage through the gateway in s60I(1)(a)(ii) much easier than would be the case if "the extent" of an injury was determined by an objective test of reasonable forseeability. But that does not necessarily mean that the number of successful applications will increase unduly. After the applicant gets through the s60I(1) gateway, he or she must satisfy the court that it is "just and reasonable" (s60G) to grant an extension of the limitation period. Under that provision, questions of what the applicant knew or ought to have known will often play a critical role in determining whether it is just and reasonable to extend the limitation period. It may not be just and reasonable, for example, to extend a limitation period if before the expiration of the period the applicant knew or ought to have expected most of the consequences of an injury. Unawareness of all the consequences may get the applicant through the s60I(1)(a)(ii) gateway, but it will not guarantee a passage through s60G" The Court went on to hold that the appellant in Commercial Minerals was unaware of the extent of his silicosis. URJ BATES v ENDREY-WALDER (Sheppard AJA) 27 Also of relevance in the consideration of a problem such as this is the judgment of Gleeson CJ in Drayton Coal Pty Ltd v Drain (unreported, NSW Court of Appeal, 22 August 1995). The case was decided prior to Commercial Minerals. His Honour said (at 5-6): "For the purposes of a case such as the present the decision of the High Court in Dedousis establishes the following propositions: 1 S6OF is no more than an introductory provision that indicates the purpose of Subdiv3. It is in s60I(1), and not in s60F, that the requirements to be satisfied by a plaintiff are to be found. 2 The requirement, in s60I(1)(a)(iii), that the plaintiff was, at a specified time, unaware of the connection between the plaintiff's personal injury and the defendant's act or omission, is not identical to a requirement (of a kind which might be inferred from s60F) that the plaintiff was unaware of the cause of the injury. (The decision in Dedousis turned upon that difference.) 3 S60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff's awareness of that legal complexion, is not what matters for the purpose of s60I(1). 4 The acts or omissions referred to in s60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s60G. Those acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff's particulars of negligence. (In this connection I refer, not to the product of some word processor, which, as some of the particulars in the present case illustrate, might include allegations that are either inapplicable or of marginal relevance, but to the material particulars as they emerge from a consideration of the statement of claim and the evidence in support of the application for an extension of time). 5 If a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system then s60I(1)(a)(iii) will be satisfied. 6 Even so, it will still be necessary for the court dealing with the application for an extension of time to decide whether, under s60G(2), it is just and reasonable to extend the limitation period." Later, Gleeson CJ said (at 7-8): "Tn the resolution of a problem of the kind that arose in Dedousis, and that arises in the present case, it may be necessary for a court to consider questions of degree. In the evaluation of a contention that a plaintiff was unaware of the connection between the plaintiff's injury and the defendant's act or omission, a court may well be confronted with a situation where, before and at the relevant time, the plaintiff was aware of some acts or omissions on the part of the defendant, and the connection between those acts or omissions and the plaintiff's injury, but not of other acts or omissions upon which reliance be placed at a trial. The mere fact that a plaintiff's lawyers can think up some act or omission, upon which they will wish to place some reliance at a trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the 28 UNREPORTED JUDGMENTS requirements of s60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousis establishes that unawareness of a material act or omission which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s60I(1)(a)(iii). It is important to bear in mind, however, that satisfaction of the requirements of s60I(1)(a)(ii) is not an end to the matter. One of the considerations which, in a given case, it may be proper to take into account under s60G(2) is the extent of a plaintiff's awareness at the critical time of acts or omissions which, by reason of their connection with the plaintiffs injury, are to be relied upon as constituting actionable negligence. It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. The same applies to the other aspects of s60I(1)(a). For example, a plaintiff might be able to establish that he or she was unaware of the full extent of personal injury suffered, but a court might take the view that, at the relevant time, the plaintiff's awareness, although not complete, was so extensive that it would not be just or reasonable to extend the limitation period. Similarly, the state of a plaintiff's awareness of certain acts or omissions connected with the plaintiff's injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came to notice at a later time. In other words, s60G(2) may, depending upon the facts and circumstances of a case, operate as an important qualification upon the practical effect of s60I." On the basis of her evidence, the appellant in the present case was aware that the first of the operations which was performed by the second respondent had not been successful. She was left with the problems to which reference has been made including necrosis of a nipple, hardness of the breast implants and disfigurement caused by their migration. Each of these problems was referred to by Dr Olbourne as being possible consequences of breast implant surgery. But the appellant did not know, at least until 1991, that, in addition to the problems referred to, she had systemic problems as a consequence of the escape of silicone from the implants. This was a very different consequence from any of the others to which reference has been made. According to Dr Olbourne it was not well recognised until 1991 that this could be a problem against which patients undergoing breast implant surgery should be warned. It would seem likely that, if the appellant had sued the first and second respondents in the late 1970s as a consequence of the problems which she had up to then encountered, she would not have included in her claim for damages any head of damage based upon any systemic effect of silicone in her body. In those circumstances, it is difficult to reach any conclusion but that reached by his Honour, namely that this is a case where the Court should be satisfied that, within the meaning of para(a)(ii) of s60I(1), the appellant was unaware of the nature or extent of personal injury suffered. For that reason, I find the case difficult to distinguish from Commercial Minerals. There is also the reliance placed by the appellant upon the provisions of para(a)(iii) of the subsection which provides that a court may not make an order under s60G unless it is satisfied that the plaintiff was unaware of the connection between the personal injury and the defendant's act or omission at the expiration of the relevant limitation period. Her evidence establishes that she thought that the problem was caused by defective implants supplied by an American chemical company. She was not at first inclined to blame the doctors for the problems she URJ BATES v ENDREY-WALDER (Sheppard AJA) 29 had in relation to the systemic effect which the free silicone in her body had had. Her suspicions were aroused by articles such as appeared in the press in about 1990 and the television program in which she took part towards the end of 1991. There is a serious question as to when she really did learn of the deleterious effects of silicone which I shall address in a moment. But it seems that on the face of the appellant's evidence she was not aware of the matter specified in para(a)(iii) of the subsection until well after the advice and treatment she had from each of the respondents except the sixth. It follows that the appellant has brought herself within para(a)(iii) of the subsection as well as within those of para(a)(ii). There is then the question of the application of para(b) of the subsection which provides that a court may not make an order under s60G unless it is satisfied that the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in para(a)(i)-para(a)(iii). Plainly she knew that she had suffered personal injury from a time commencing shortly after the operation carried out by the second respondent. The evidence she gave about what happened in relation to the removal of the nipple which was affected by necrosis is enough to establish this. But the paragraph requires knowledge of all three within three years after the plaintiff became aware of all three matters listed in para(a). The fact that she knew that she had suffered personal injury in the 1970s does not debar her from bringing herself within the section because it is correct to say that although she knew, or ought to have known, that she had suffered personal injury in the 1970s, she was not aware of the matters stated in para(ii) and para(iii). Accordingly, it would not be correct to say that she had knowledge of all three matters listed in para(a) until a much later time. It ought to be clear that the section says "all 3 matters" and does not refer to any one of the three. That must be so in the light of the fact that the three matters in para(a) are alternatives, although more than one may be present as in this case. But there is a further question. The application must be made within three years after the plaintiff became aware or ought to have become aware of all three matters. She says that she was not aware of the matters stated in subpara(ii) or subpara(iii) at least until 1994. Nor was she aware of another matter upon which she relies, namely that she was not a suitable candidate for breast implant surgery in the first place. In her evidence she said that, if she had known the risks, she would not have proceeded with any surgery. There is no finding on the question but I think one has to take the view that the more probable situation is that the fear of cancer which was present in members of her family would have persuaded her to have a breast removal operation but that the likelihood was that if she had had explained to her the extent of the risks that were involved she would not have had the implants. She would have tolerated the result of breast removal in order to reduce the risk of cancer. There is a real question between the parties whether the application was made within three years after the appellant became aware of the matters specified in para(a). That is because the evidence suggests that she had begun to realise in 1991 that silicone itself was a problem. Counsel for the respondents strongly submitted that the relevant time was 1991 and not 1994. If it is 1994 then she has no problem in relation to para(b). The question is whether the appellant was aware of each of the matters specified in para(a) of subs60I(1) within three years prior to the institution of her action in February 1995. Her case is that she was not aware of the nature or extent 30 UNREPORTED JUDGMENTS of personal injury suffered until after Dr Hodgkinson's operation in 1994 nor was she aware in 1991 of the connection between the injury which she had suffered and the respondents' acts or omissions. She knew that personal injury had been suffered in the sense in which I have explained this above because of the problems she had had in relation to her nipple and the hardening and distortion of the shape of her breasts. But she knew no more than that. It may be observed that s60I is self contained in that it does not use the phrase "material facts of a decisive character relating to the cause of action" which is to be found in s58(2). In order to consider that phrase, one has to take into account the definitions in s57B to which reference was earlier made. In a consideration of the application of s60I, however, one does not look outside the section in order to determine whether or not an applicant satisfies the provisions of para(b) of subs60I(1). It is to be observed that the provisions of para(a) of the subsection use phrases such as "did not know" and "was unaware of". As the High Court has said, the test is a subjective one. No question of reasonableness enters into the matter. The question is whether the appellant was in fact unaware of the nature or extent of the personal injury suffered or was unaware of the connection between the injury and the respondents' acts or omissions. When one comes to para(b) of the subsection there is, however, a new factor present. It uses the expression "the plaintiff became aware" which ought, in my opinion, be construed conformably with the similar expressions in para(a). But after these words, there follow the words in parentheses "(or ought to have become aware)". That I think imports at least a degree of objectivity to be applied in determining whether a plaintiff has crossed the threshold provided for in the paragraph. The question is whether the appellant was in fact aware or ought to have become aware earlier than 1994 of the facts and matters upon which he now relies to support her cause of action, namely the dangers of inserting silicone implants into her body and the knowledge available to the medical profession in the 1970s and the 1980s of the risks which were involved in such a procedure. The contest between the parties is whether the material date is 1991 or 1994. If the date is 1991, the appellant is out of time. Her action was commenced in 1995. On the other hand, if the date is 1994, she is well within time. I have reached the conclusion that the material date is 1994 with the consequence that she is well within the time provided for in para(b) of s60I(1). I have reached that conclusion because of the way in which both para(a) and para(b) of the subsection are expressed. Para(a) uses the expressions "did not know" and "was unaware". Para(b) uses the phrase "became aware". I think the effect of the appellant's evidence was that, although she began to suspect a problem arising because of silicone escaping into her body and affecting other organs as early as 1990, her state of mind was one of suspicion rather than one having the degree of certainty which the various expressions used in the subsection require. Her evidence establishes that she did not know or become aware of the situation until some time in 1994. In reaching my conclusion I have taken into account the words of para(b) which are in parenthesis "ought to have become aware" and also the word "reasonably" in para(a). Despite the fact that these may import into the provisions a degree of objectivity, I do not think that that circumstance affects the conclusion which I have reached. For the reasons given, the matters raised by the respondents' notice of contention should be rejected. The next question concerns the exercise of the Court's discretion under s60G(2) of the Act. The material words of the subsection URJ BATES v ENDREY-WALDER (Sheppard AJA) 31 are that the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. In considering questions concerning the exercise of the Court's discretion under the subsection, it is relevant to refer again to the judgement of Drayton Coal. Important for present purposes are his Honour's statements in the paragraph numbered 4 set out in the first of the passages quoted from his judgment that the acts or omissions referred to in para(a)(iii) of s60I(1) are those found in the plaintiffs particulars of negligence. In the sentence which follows, his Honour makes it clear that he is referring to the material particulars as they emerge from a consideration of the statement of claim and the evidence in support of the application for an extension of time. That is why it was necessary in the present case to consider the plaintiff's evidence and the medical evidence, to the extent that there is medical evidence called in the case. His Honour prefaced his remarks by saying that the acts or omissions referred to in s60I(1)(a)(iii) were the acts or omissions on which the plaintiff in a given case relied to found the cause of action referred to in s60G. In the second of the quoted paragraphs, the Chief Justice shows that matters which are specified in para(a) of s60I(1), particularly as I understand it those specified in subpara(iii), may have a bearing not only on the question whether the applicant in a given case has established that the gateway provisions of s60I have been met, but also on the exercise of the discretion which is conferred by s60G. A factor which the court would be entitled to take account of in exercising its discretion would be the apparent strength of the case present by a plaintiff in support of an application for an extension of time. Of more direct relevance, however, are considerations such as are mentioned by McHugh J in Brisbane South (at 651-3). The points made by McHugh J which are relied upon in the judgment appealed from are, in summary, as follows: (a) The longer the delay in commencing proceedings the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. (b) 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. There were four broad rationales. First, the loss of evidence as the consequence of the passage of time; secondly, the oppressiveness to a defendant to allow an action to be brought long after the circumstances which gave rise to it had 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; and fourthly, the public interest in disputes being settled as quickly as possible. (c) A limitation period was the general rule; an extension provision was the exception to it. After referring to these passages from McHugh J's judgment, his Honour said, in a passage which I have earlier quoted, that, having regard to the fact that the initial problem arose over twenty years ago and having regard to the fact that the appellant knew or must be taken to have known of the problems which necessarily arose as a result of the surgery (they being problems relating to the failure of the prostheses rather than the problem of silicone entering the body and affecting organs remote from the site of the operation) and having regard to the fact that all the other defendants ie the respondents, in his opinion were doing 32 UNREPORTED JUDGMENTS was to assist the appellant in the problem which she had, it would not be just and reasonable in all the circumstances to make an order under the section. His Honour, in his consideration of the matter, does not appear to have given specific consideration to the cases brought against the first and second respondents. He has dealt more specifically with the cases brought against the remaining respondents. In respect of the third, fourth and fifth respondents, he considered that they were doing no more than assisting the appellant to overcome a problem that had been created by an unsatisfactory operation. In relation to the sixth respondent, he thought that the claim had no substance whatsoever. His point was that all that that respondent failed to do was to have a test made of tissue taken from the appellant's body. I would add to what his Honour said that the problems that the appellant had at the time the sixth respondent treated her had all been suffered by then. Any claim she might have against him could not result in a substantial award of damages. Although it is not spelt out as clearly as it might have been, it seems clear that his Honour exercised his discretion adversely to the appellant in relation to the first and second respondents because of the long period of time between their treatment of the appellant and the time the action was brought some nineteen years later. He applied all that McHugh J had said about delay and its consequences. Those were matters which his Honour was entitled to take into account in the exercise of his discretion. But there is another factor. One of the matters that needs to be borne in mind in relation to this case so far as it based upon s60G of the Act is that it is based upon there having been a latent injury. That is the expression used in the heading to Subdivision 3 of Division 3 of the Act in which s60G appears; see also s60F. The latent injury is the injury to the appellant's body as the consequence of the escape of silicone into it. The legislature intended a person in the position of the appellant, if she could meet the gateway provisions of s6OI, to be entitled to sue so long as the Court under s60G(2) concluded that it was just and reasonable that the limitation period be extended. In a case such as this, the very fact that the injury is latent and the discovery of it recent may provide the reason why the action is brought so long after the events which gave rise to it. It may not have been possible for the plaintiff to have brought it earlier. It is not unlikely, therefore, that cases in which reliance is placed upon s60G of the Act may be brought a lot later than other types of cases where the problems concerning latent injuries do not exist. Nevertheless, considerations militating against the exercise of discretion such as were mentioned by McHugh J in Brisbane South still have their part to play. Counsel for the appellant stressed the fact that the action could not have been safely brought (as regards the escape of silicone) until the appellant had the evidence which she needed. This was not until 1994 at the earliest. Even then, she did not have Ms Evans' report which is dated October 1996. Counsel for the respondents relied on the second respondent's evidence earlier recounted and the destruction of relevant records kept by the two doctors. They were unable to recall any of the detail of the matter. In response to this, counsel for the appellant said that they would surely have a recollection of their usual practice in relation to what patients were told before they decided whether to have breast implant surgery. But as counsel for the respondents said, nineteen years is a long time in professional practice. Practices of professional people change. Human recollection is frail. It would be wrong to impute to the doctors, so counsel said, the ability to recall what was their general practice about anything so long in the URJ BATES v ENDREY-WALDER (Sheppard AJA) 33 past. I tend to agree with this submission particularly in the light of the fact that the second respondent swore an affidavit upon which he was not cross-examined. The question is whether his Honour's discretion miscarried. In the balancing exercise, an exercise which was not without difficulty, which he had to undertake, he had to weigh up the relevant factors as they were put to him. The appellate process tends to lead to the supplementation of argument and to its refinement. Having considered the matter, I am not persuaded that it has been demonstrated that the exercise of discretion miscarried in relation to the proceedings against the first and second respondents. It is in relation to the third, fourth and fifth respondents that his Honour made the statement earlier referred to that all the respondents, after the second respondent, were trying to assist the appellant to overcome the problem with which she had been left. I have referred to the criticism of this statement made by counsel for the appellant. Notwithstanding that his Honour may not have expressed himself as precisely as he would have wished to - I have referred to this earlier - full weight has to be given to counsel's argument which suggests that the statement indicates the taking into account of an irrelevant matter. I have reached the conclusion that his Honour's discretion did miscarry. Although the offending statement is only one of the reasons relied on by his Honour, it obviously weighed substantially with him. His Honour's discretion having miscarried, it is for this Court to re-exercise it in the context of the relevant facts and circumstances of the case. It is to be emphasised that the third respondent treated the appellant in September 1976 and the fourth respondent in March 1977. The fifth respondent treated her in 1980 and again late in 1985. So far as the passage of time is concerned, the third and fourth respondents are in a similar category to the first and second respondents. The period in the case of the fourth respondent is not quite so long but it is of the order of eighteen years. Even in the case of the fifth respondent, it is fifteen years or ten years if one takes into account the treatment which took place in 1985. In the exercise of discretion which is being undertaken, it is necessary to have regard to the various considerations mentioned by McHugh J in Brisbane South albeit in the context of a case where the injury. is latent. All the matters relied upon by his Honour in relation to the first and second respondents apply with equal force to the third, fourth and fifth respondents. Each of them will be likely, to be seriously disadvantaged if a case based on events of almost twenty years (at the time of the institution of the action) were now permitted to be brought. Another factor is difficulty which the appellant would be likely, to encounter if the action were brought. Notwithstanding Ms Evans' evidence, there is weighty evidence from Dr Olbourne that it was not the practice in the 1970s and 1980s to give any such warning. Counsel for the appellant submits that that is not conclusive particularly in the light of the judgment of the High Court in Rogers v Whitaker (1992) 175 CLR 479 where the Court made it clear (at 487) that, although the standard of care to be observed by a person with some special skill or competence was that of the ordinary skilled person exercising and professing to have that special skill, the standard was not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. The Court said that,- iE the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the principle derived from the decision in Bolarn v Friern Hospital Management Committee [1957] 1 WLR 582 at 586 had not always been applied 34 UNREPORTED JUDGMENTS in Australia. Reference was made to a number of authorities including Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 at 562-3 which had been decided in 1980. There was also the decision of the Supreme Court of South Australia in F v R (1983) 33 SASR 189 which had positively discarded the Bolam principle although that did not occur until 1983. F v R was approved by the High Court in Rogers v Whitaker; see at 488-9. So Dr Olbourne's opinions are by no means conclusive and, if it be right to say that the state of medical knowledge throughout the 1970s and the 1980s was as Ms Evans says it was a plaintiff in the position of the appellant might have succeeded in establishing a breach of duty much earlier than 1994. But it should be clear that that sort of consideration does not affect anything I have said about s60I. Nevertheless, I am of opinion that the most weighty factor confronting the appellant is the substantial lapse of time. For the third and fourth respondents the period is almost as long as it was in the case of the first and second respondents. It is more recent in the case of the fifth respondent but nevertheless the lapse of time is substantial. In those circumstances I think that the discretion which is being exercised should be exercised adversely to the appellant. It follows that, in the result, I would reach the same conclusion as his Honour. In relation to the sixth respondent I agree with what his Honour has said about the case against that respondent. Furthermore, it is difficult to think that any warning given by him in 1991 would have had any substantial effect on the appellant's overall condition. In those circumstances I think that there is no warrant for concluding that, in relation to any of the respondents, his Honour's decision on discretion was in fact wrong. I would not disturb his conclusions in relation to the appellant's case so far as it relies upon s60G of the Act. The Case Based on s58: That brings me to the claims based upon s58. His Honour dismissed that case in a fairly perfunctory manner. He said that he was of the view in respect of all defendants that material facts of a decisive character relating to the cause of action were within the means of knowledge of the appellant from a time immediately after the procedures carried out by the second respondent failed. He said that, from that time onwards, she knew, if her claim in this regard was accepted, that she had received no advice from the second respondent as to the possibility of there being difficulties with the prostheses. It is there that his Honour makes the additional statement that the appellant received no advice in relation to the silicone problem. But, if what Dr Olbourne said was the case, namely that it would not have been customary in the 1970s to give a warning about the possibility of the infiltration of silicone into the body and its consequences in the 1970s, one would not have expected him to give any such advice about that problem. Certainly, one would have expected him to give advice concerning the possibility of necrosis, the possibility of misshapen breasts due to migratory problems and the problem of hardening of the prostheses. His Honour's point was that, so far as those matters were concerned, the appellant plainly had an action available to her in the 1970s. He also said that the appellant must be taken to have known (ie, in the 1970s) from her own tragic experience that there was the danger of the implants not being successful. In the case of the respondents who came after the second respondent, they were, as I have mentioned, endeavouring to rectify a problem which existed. They, were endeavouring to overcome the disfigurement from which the appellant suffered as URJ BATES v ENDREY-WALDER (Sheppard AJA) 35 a consequence of the necrosis and the migration and also the hardness of the prostheses. According to Dr Olbourne each of these problems was a well known risk of the treatment, even in the 1970s. Plainly, the appellant should have been warned by each doctor that this was the case and that, although an attempt would be made to rectify, the unfortunate situation which had arisen, the risks would remain. The appellant's evidence is that she was not forewarned of the risks in addition to the silicone risk by any of the doctors who subsequently treated her, and yet that these risks existed was not in question. His Honour dismissed the case based on s58 because of considerations arising from dicta which appear in Do Carmo (supra) to which I have earlier referred. I do not repeat the various matters mentioned by his Honour in relation to Do Carmo dealt with earlier in these reasons. The important point of that case for the purposes of this one is that made by Reynolds JA in his judgment in this Court, agreed in as it was by Wilson J. He said that once an applicant had facts within his means of knowledge which fulfilled the requirements of the definition, any fact which later came within his means of knowledge even though material, could not answer the description of being of a decisive character. If the appellant had been given advice by the respondents who came after the second respondent that there were the risks which are mentioned by Dr Olbourne (necrosis, migration and hardening), it is not unlikely that the appellant would have decided to have rid herself of the prostheses and deal with the disfigurement problem which she had in another way, albeit not as satisfactory as would have been the case if the implants had been successful. But her case is that the remaining respondents gave her no warning that the outcome might not be successful and set about attempting to repair the damage which had been done. Each of them failed. Unlike his Honour, however, I take the view that the appellant's evidence, if it were accepted at the trial of an action brought as the result of the grant of an extension of time, would establish a case in negligence against each of the first, second, third, fourth and fifth respondents. Furthermore, I do not think that material facts of a decisive character relating to the cause of action were within the means of knowledge of the appellant until after the expiry of the limitation periods affecting each of those respondents. That is because, in her submission, no respondent warned her of the risks of necrosis, migration and hardening. She went on with treatment in the hope that eventually there would be a successful outcome but there never was. If she had had been warned, it seems unlikely that she would have gone further with the matter. His Honour's discretion having miscarried, the question arises how that discretion should now be exercised by this Court. The discretion is expressed in s58(2) in a not uncommon form. Conditions of its exercise are those relating to material facts of a decisive character relating to the cause of action and evidence to establish the cause of action. On the view I take of the matter both these conditions are met. Plainly, for the purposes of an application such as this, the appellant led sufficient evidence to establish that she did have a cause of action. I make it clear that that is not a conclusive finding of negligence against any of the respondents. All I am saying is that the appellant is entitled to a finding that her evidence establishes a cause of action for the purposes of this application, so as to enable her to seek the exercise of the Court's discretion. The section provides that the court "may order" that the limitation period for the cause of action be extended so that it expires at the end of one year after that date. The discretion is expressed is completely general terms. Again, 36 UNREPORTED JUDGMENTS considerations such as were mentioned in Brisbane South are applicable. The most significant of these are those relating to delay and its prejudicial effect on defendants. There is also the fact, as McHugh J points out, that the rule is that the limitation period applies; it is for the plaintiff to establish reasons why, it should not. Understandable though the appellant's reasons may have been for not bringing the action that she had against the first and second respondents and also the third and fourth respondents in the 1970s, she did not bring it. She wants to bring it now. This is not as difficult an exercise as was the exercise of the discretion under s60G because the case is based upon a failure to warn of risks which, according to Dr Olbourne, were well known at the time. I can appreciate the unwillingness of people who have suffered at the hands of professional people to sue, especially when they are intending to seek further medical treatment. Nevertheless, the circumstance that they have suffered injury coupled with the availability apparently of evidence that patients should have been warned of risks of this kind makes the fact that they had that knowledge a relevant factor to take into account and to weigh along with the length of time which elapsed since the appellant became aware, or ought to have become aware, of the fact that she had a cause of action. I think that the reality is that the appellant at no time intended to bring an action in relation to the problems concerning necrosis, migration and hardening, but wants to add them in to the action she does want to bring because of the leakage of silicone into her body. That is the case that she really wants to prosecute. The fact that that is so is supported by the prominent part she played in the organisation which was formed after she appeared on the television program and her obvious general interest and concern, no doubt justifiable, in relation to this whole problem of breast implant surgery. That is a latent injury case and is appropriately dealt with under s60G. Her other claims fall into the category of a conventional s58 case. In those circumstances, I think that his Honour reached the right conclusion in refusing her relief based upon this provision. In the result, therefore, I have reached the conclusion that the appeal should be dismissed with costs. 1 The appeal be dismissed. 2 The appellant pay to the respondents their costs of the appeal but limited to one set of costs. Counsel for the appellant: Andrew Fegent & Co Solicitors for the appellant: Andrew Fegent & Co Counsel for the respondent: DJ Higgs SC Solicitor for the respondent: Tress Cocks & Maddox