JONES v ROYAL HOSPITAL FOR WOMEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Mason P, HANDLEY and BEAZLEY JJA 13 March 1998, 24 July 1998 [1998] NSWCA 119 Admission of fresh evidence — interlocutory appeal — Limitation of Actions — whether "just and reasonable" to extend limitation period — Limitation Act 1969, s60G and s601 Appeal and New Trial — admission of fresh evidence — interlocutory appeal — special grounds for admission need not be established — Supreme Court Act 1970, s75A(7) Limitation of Actions — extension of period — statutory requirements — personal injury case — whether "just and reasonable" to extend limitation period — applicable legal principles — relevant considerations — Limitation Act 1969, s60G and s601 It was common ground that the limitation period expired on 16 October 1987. The appellant argued for an extension based solely on s60G and s60I of the Limitation Act 1969 ("the Act'). Balla ADCJ rejected the application for extension of time. Her Honour held that the requirements of s60I had been satisfied. However, in exercising her discretion under s60G the judge declined to extend the limitation period on the basis that the appellant had not shown that it was just and reasonable for the limitation period to be extended. The decision of Balla ADCJ was challenged on the basis that her Honour failed to exercise the discretion under s60G in accordance with correct legal principles, especially in the light of the recent decisions of the High Court in Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 and of the Court of Appeal in Sydney City Council v Zegarac (1998) 43 NSWLR 195. During the argument of the appeal, the importance of the availability of Dr O'Sullivan to give evidence became apparent. Within the Proposed Amended Statement of Claim, the appellant included particulars of negligence dependant on a finding that Dr Zipser was not adequately supervised. The evidence disclosed that Dr O'Sullivan was present to resuscitate the baby shortly after birth. However, it did not indicate at what (if any) earlier point he arrived to supervise the birth. After the appeal had been heard, fresh evidence in the form of two affidavits sworn by the solicitor for the appellant were tendered by the appellant without objection by the respondent. These affidavits established that Dr O' Sullivan had been located, and that he recalled Dr Zipser. HELD, allowing the appeal: In the light of the fresh evidence regarding Dr O' Sullivan, the matter should be remitted for a fresh determination. Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374; Martin v Abbott [1981] 2 NSWLR 430; Wickstead v Browne (1992) 30 NSWLR 1, applied. Discussion of legal principles applicable to the exercise of discretion under s60G of the Limitation Act 1969. Mason P The Court heard full argument in an application for leave to appeal on the basis that it would be treated as argument in the appeal, if leave is granted. The principal issue is whether Balla ADCJ correctly exercised her discretion 2 UNREPORTED JUDGMENTS under s60G of the Limitation Act 1969 ("the Act") in refusing an application made by Ms Jones, the appellant, to extend the limitation period against the respondents, the Royal Hospital for Women and Dr Zipser. FACTS The appellant was born on 16 October 1963 at the Royal Hospital for Women ("the Hospital"). On the medical records, Dr Zipser was identified as the doctor who attended her birth. From the 30 week the presentation of the pregnancy was persistently breech. Some idea as to how the birth progressed is given by the medical progress notes dated 16 October 1963 which relevantly state: "P V, pudendal block Zipser.5% xylocaine 48 cc...... 6pm Pinot's manouver to legs. Episiotomy + assisted breach delivery - Zipser Moderate difficulty with shoulders requiring 3 turns of Lovsett technique each way. Wrigley's forceps applied to aftercoming head - easy delivery of head over 5-10 mins. Baby had poor agpar - resuscitated by Dr O' Sullivan + cond satis at end of 20 mins. After her birth, certain abnormal responses were noted regarding the reflexes and condition of the appellant's lower limbs and thoracic region. A referral letter was written on 21 October 1963 by Dr Peter O'Sullivan to Dr John Beveridge transferring the appellant to Prince Henry Hospital to be examined by a neurologist and neurosurgeon. Shortly after, the appellant was diagnosed with paraplegia. On 10 June 1983 and 9 October 1986 the appellant was injured in two motor vehicle accidents. She sought legal advice, first from the Legal Aid Commission in 1983, and secondly from Mr James Biady, solicitor, around 1985. The appellant conceded in cross examination that it was around 1985 that she became generally aware that an action could be commenced as a consequence of another party's fault to recover damages for her paraplegia. Mr Biady first received instructions from the appellant to act regarding her birth injury in October 1991. On 31 August 1993, a Statement of Claim seeking damages for negligence and Notice of Motion applying for an extension of the limitation period were filed against the Hospital and Doctors Foreman, Zipser and O'Sullivan. The actions against Dr Foreman and Dr O'Sullivan were subsequently discontinued. As regards the latter, the appellant had been unable to serve him. PROCEEDINGS BELOW The motion came on for hearing in October 1997, four years after the application had been lodged. It was common ground that the limitation period expired on 16 October 1987. Further, the appellant argued for an extension based solely on s60G and s60I of the Act. To show an arguable claim in negligence the appellant relied on a report obtained by her solicitor from Dr Beavis dated 16 February 1995 which was based upon medical records recovered from both the Royal Hospital for Women and Prince Henry Hospital. This report concluded that the need to turn the baby three times by a junior resident without supervision followed by an injury to the spinal cord indicated that the baby experienced undue physical stress during the delivery of the shoulders and that this caused the spinal cord injury. On the basis URJ JONES v ROYAL HOSPITAL FOR WOMEN (Mason P) 3 of this evidence it became critical to the liability of each appellant to know whether Dr O'Sullivan or some other senior doctor was present at the time of what would have been known in advance to be a difficult parturition. In addition, numerous affidavits were sworn by the appellant and her solicitors regarding the personal history of the appellant and the legal proceedings as well as providing some insight into the appellant's knowledge of the connection between her injuries and the acts of the Hospital and Dr Zipser. The appellant swore that she did not believe that she had evidence of negligence until receipt of Dr Beavis' report. Two affidavits were tendered by the respondents. The first was sworn by Dr Goldstein, Director of Medical Services of the Hospital. He stated that he had made enquiries, principally with the Director of Nursing, as to the identity of the staff members who may have been involved with the appellant's birth. He was able to identify them from their signature on the records, however was unable to recover the staff rosters for the period of October 1963, nor any "record" as to their current whereabouts. The second affidavit was sworn by Barbara Versace, solicitor, annexing correspondence between the solicitor for the respondents and solicitor for the appellants from 6 October 1993 onwards. The respondents did not tender any medical evidence. Dr Zipser did not make any attempt to give his recollection of the events, in particular as to whether he was supervised or not during the progress of the birth. Nor did he proffer any evidence as to his recollection or otherwise of the appellant's birth. However, no suggestion was made that he would be unavailable to give evidence. In her judgment dated 7 November 1997, Balla ADCJ rejected the application for extension of time. She held that the requirements of s60I of the Act had been satisfied, as the appellant was unaware prior to 16 October 1987 that Dr Zipser was a junior doctor and may have been unsupervised in delivering the baby. Further, the proceedings were commenced within the three year period required by s60I(1)(b) and Schedule 5 of the Act. However, in exercising her discretion under s60G, the judge declined to extend the limitation period. She found that the appellant had not shown that it was just and reasonable for the limitation period to be extended. APPEAL The critical findings, each of which is challenged, were: ".. the plaintiff has not established the reason for the delay in the hearing of this motion from 11 August, 1995 to the date of hearing. I find that a delay of 34 years amounts to presumptive prejudice to the defendant. I further find that the evidence of Dr Goldstein as to the state of the hospital records and his inability to locate at least one of the doctors and several other employees who would have been involved with the birth of the plaintiff establish actual prejudice to the first and third defendants." On appeal, the decision has been challenged on the basis that her Honour failed to exercise the discretion under s60G in accordance with correct legal principles, especially in the light of the recent decisions of the High Court in Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 ("Taylor") and of this court in Sydney City Council v Zegarac (1998) 43 NSWLR 195 ("Zegarac"). In particular, the appellant argues that the judge regarded as determinative of the application any prejudice incurred by the respondents irrespective of its nature and extent, ignoring the paucity of evidence tendered by the respondents and the 4 UNREPORTED JUDGMENTS comparative strength of the appellant's case. It is also contended that her Honour erred in treating Dr Goldstein's evidence as establishing inability to locate Dr O'Sullivan. The appellant also challenges the judge's consideration of the delay in the hearing of the motion from 11 August 1995 to the date of the hearing. There was dispute between the parties about the extent to which this issue was ventilated in the application before Balla ADCJ. Neither the appellant nor the respondent sought to challenge the judge's findings regarding s60I. These should stand, regardless of the disposition of the appeal. The appeal was heard on 13 March 1998 pursuant to orders made by Handley JA and Beazley JA on 2 March 1998 that the leave application and appeal be heard together. During argument, the importance of the availability of Dr O'Sullivan to give evidence became apparent. The particulars of negligence in the Proposed Amended Statement of Claim (filed after the hearing of the application by direction of the Court) include an allegation of negligence on the part of the Hospital through failure to monitor properly or at all the conduct of Dr Zipser, and other such particulars are also dependent on a finding that Dr Zipser was not adequately supervised. The evidence disclosed that Dr O' Sullivan was present to resuscitate the baby. However it did not indicate at what (if any) earlier point he arrived to supervise the birth. Further, there was no information as to the position occupied by Dr O'Sullivan in the Hospital hierarchy. This caused the solicitor for the appellant to conduct urgent searches into the identity and whereabouts of Dr O'Sullivan. Initially the Court was informed that it appeared that Dr O' Sullivan had been killed very shortly after the birth of the appellant. After the appeal had been heard, fresh evidence in the form of two affidavits sworn by Ms Corinne Biady on 24 and 26 of March 1998 were tendered by the appellant, without objection by the respondent. These affidavits establish that a Dr Eugene Peter O' Sullivan has been located, that he lives in Vaucluse and worked at the Hospital during 1963, recalling that Dr Zipser was there also. The ramifications of this highly significant evidence will be dealt with below. STATUTORY FRAMEWORK The appellant was injured while under the age of 18 years and hence was defined as being under a disability for the purposes of the Act - s11(3)(a). As such, she was entitled to the benefit of s52 which suspended the running of the limitation period for the duration of the disability. Upon turning 18 the appellant was entitled to a six year limitation period expiring on 16 October 1987 - s14. In seeking an extension of time the appellant has relied solely on that discretionary extension provided by Pt3, Division 3, Subdivision 3 described as being for latent injury, although not confined in its application to such a limited class of injury - see Dedousis v The Water Board (1994) 181 CLR 171. The relevant sections are s60G(2) and s60I: 60G Ordinary action (including surviving action) (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. URJ JONES v ROYAL HOSPITAL FOR WOMEN (Mason P) 5 [This provision extends to causes of action accruing before 1990 in circumstances that were satisfied in the present case: see Schedule 5 cl4.] s60I Matters to be considered by court (1)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).... APPLICABLE LEGAL PRINCIPLES The principles applicable to the exercise of discretion under s60G must be clearly distinguished from those applicable to s60C, due to the clear guidance given to a judge in respect of the latter provision by s60E(1). Hence, to the extent that the conclusions within Zegarac depend upon the particular wording of s60C and s60E(1), they are not directly applicable to the present case. And, so far as s60G involves a discretion exercisable according to broad notions of justice between the parties in accordance with the purpose of an enactment authorising an extension of the limitation period, the principles enunciated in Taylor may be seen as directly applicable. Considering the many decisions now dealing with the exercise of discretion under s60G it seems appropriate to attempt to summarise the relevant principles: (1) The satisfaction of the preconditions to an exercise of discretion under s60G do not give rise to a presumptive right to the exercise of discretion in favour of the applicant - see Commonwealth of Australia v McLean (Court of Appeal, unreported, 28 July 1997, earlier decision in same appeal reported at (1997) 41 NSWLR 389). Rather, the applicant has the positive burden of demonstrating that it would be just and reasonable for an extension of time to be granted in the circumstances of the particular case - see Taylor at 544, 547, 554, 567. (2) The viability of the proposed claim is relevant - George v Estate of Bailey & Ors (1998) Aust Torts Rep J81-455 at p64,649-p64,650 (and cases cited). (3) Although the ultimate onus of satisfying the court clearly rests upon the applicant, there is still an evidentiary onus on the opponent to "raise any consideration telling against the exercise of the discretion" - Taylor at 547, 566-7. As explained by Kirby J (at 566-7) "Tf a defendant does not call evidence, or calls evidence which is unpersuasive or insignificant, provided it is reasonable to infer that some evidence was available to it in the circumstances the defendant cannot complain if the court concludes that no particular prejudice, over and beyond the generalities, could have been established by it.... " See also Zegarac at 197. (4) It is not appropriate to balance the prejudice to each of the parties - Taylor at 549-550; McLean at 3. 6 UNREPORTED JUDGMENTS (5) The proper question to ask is whether "the delay has made the chances of a fair trial unlikely" - Taylor at 550 per Toohey and Gummow JJ; or whether the commencement of an action beyond the limitation period would result in prejudice of a significant kind to the prospective defendant - Taylor at 544 per Dawson J, 555 per McHugh J. Cf Zegarac at 198-9. (6) The court is required to have regard to "every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period" (per McHugh J in Taylor at 554) including the rationales for the existence of limitation periods - Taylor, per McHugh J at 551-553 and Kirby J at 563-564. Accordingly, evidence of presumptive and actual prejudice to a prospective defendant will be a most relevant consideration, if not determinative in the vast majority of cases - see Taylor at 548, 555 and George at 64,647-64,648. However, in exceptional cases other considerations may prove decisive, such as inordinate delay on the part of the applicant considering the extent of awareness of relevant issues under s60I as explained by Gleeson CJ (as he then was) in Drayton Coal Pty Ltd v Drain (Court of Appeal, unreported, 22 August 1995). FRESH EVIDENCE An order made pursuant to statutory power to extend time limits is of an interlocutory nature - Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374. Accordingly, the party tendering further evidence on appeal is under no obligation to establish special grounds as is the case where the appeal is from a judgment after a trial on the merits - Supreme Court Act 1970 s75A(7): Wickstead v Browne (1992) 30 NSWLR 1. The respondents properly consent to the admission of the fresh evidence which reveals that Dr O' Sullivan is available as a witness and that he has a recollection of working with Dr Zipser at the Hospital in 1963. In my view this is determinative of the appeal in the sense that the matter should be remitted for a fresh determination in the light of Dr O'Sullivan's evidence touching the ultimate issue as well as the immediate issue of the fairness of a trial at this late stage. OTHER MATTERS Strictly, it is unnecessary to go any further. I would however, add that I consider the evidence from Dr Goldstein was insufficient to establish actual prejudice in the sense of proving the unavailability of Dr O'Sullivan. The efforts made by the respondents to locate the doctors and other employees involved at the time of birth amounted to little more than an enquiry made to a senior person in the Hospital and consultation of Hospital records. This was not sufficient to establish a general inability to locate those aside from Dr Zipser who were present at the birth. The insufficiency of the efforts made by the respondents on this point has been demonstrated by the successful searches later conducted into the whereabouts of Dr O'Sullivan. Had this error stood alone it is unclear what would have been the disposition of the appeal, given that the appellant herself seems to have done less than what was appropriate to locate Dr O'Sullivan. Although the evidentiary onus of showing actual prejudice rests upon the defendant opposing an extension of time, an applicant proceeding after such a lengthy delay as occurred here is taking a real risk by leaving any stone unturned. It is unnecessary to consider whether the judge erred in holding against the appellant the delay between 1995 and the date of the hearing. URJ JONES v ROYAL HOSPITAL FOR WOMEN (Handley JA) 7 In upholding the appeal and remitting the matter to the District Court I do not intend to give any indication as to the strength of the appellant's application. There are too many imponderables arising from the evidence in its present state. I propose the following orders: 1.Grant leave to appeal. 2. Appeal allowed. 3. Set aside the orders of Balla ADCJ made on 5 November 1997. 4. Order that so much of the application for extension of time as relates to s60G of the Limitation Act be remitted to the District Court for a fresh hearing. 5. Costs of the application before Balla ADCJ and of this appeal are to abide the result of the new application. Beazley JA I agree with Mason P. Handley JA I agree with Mason P. Grant leave to appeal. Appeal allowed. Set aside the orders of Balla ADCJ made on 5 November 1997. Order that so much of the application for extension of time as relates to s60G of the Limitation Act be remitted to the District Court for a fresh hearing. 5. Costs of the application before Balla ADCJ and of this appeal are to abide the result of the new application. RYN Counsel for the appellant: J S Coombs QC, D Campbell Solicitors for the appellant: J Brady & Associates Counsel for the respondent: P Taylor SC Solicitors for the respondent: Government Insurance Office