New South Wales Supreme Court CITATION : DAVID ANTHONY CARLTON AND ANOR -V- HUNTER VALLEY X-RAYS AND 2 ORS [2001] NSWSC 1034 revised - 21/11/2001 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20343/2000 HEARING DATE(S) : 5 & 6 November 2001 JUDGMENT DATE : 21 November 2001 Hospital Corporation Australia Pty. Ltd (Appellant, 3rd Defendant) David Anthony Carlton& Karen Michelle Carlton ( Plaintiffs) Hunter Valley X-Rays Pty Ltd (First Defendant) PARTIES : Amanda Woodward (Second Defendant) JUDGMENT OF : Cooper AJ LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC20343/2000 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER : P.C.Semmlar QC - Plaintiff/ 1st & 2nd Respondants COUNSEL : David L. Williams - 1st & 2nd Defendants/3rd & 4th Respondants David Davies SC - 3rd Defendant/Appellant Ebsworth & Ebsworth (Appellant, 3rd Defendant) SOLICITORS : Cantle Carmichael (Plaintiffs) Yeldham & Associates (1st Defendant) Minter Ellison (2nd Defendant) CATCHWORDS : Expiry of limitation period - Awareness or knowledge - "Extension"in S.60C(2) of Limitation Act 1969 LEGISLATION CITED : Limitation Act 1969 DECISION : Appeal Dismissed David Anthony Carlton & Anor -v- Hunter Valley X-Rays and 2 Ors (2001) NSWSC 1034- 34 - - 26 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COOPER A.J 21 November 2001 20343/2000 DAVID ANTHONY CARLTON AND ANOR v HUNTER VALLEY X-RAYS PTY AND 2 ORS JUDGMENT Introduction 1 This is an appeal by Hospital Corporation Australia Pty Ltd from a Judgment of Master Harrison delivered on 5 March, 2001 under which the following orders (inter alia) were made:- (1) Leave granted to extend the Limitation period against Hospital Corporation Australia Pty Ltd in respect of tort claims concerning the ultra-sound performed on 17 February, 1992. (2) The Plaintiff is granted leave to add Hospital Corporation Australia Pty Ltd as the third Defendant in these proceedings. (3) Leave granted to file a further further further amended Statement of Claim within 14 days. 2 The Plaintiffs are David Anthony Carlton and his wife Karen Michelle Carlton. They are the parents of Alexander Carlton who was born on 24 June, 1992 with spina bifida with a large open myelomeningocoele at the thoraco-lumbar junction with associated complete paraplegia. At birth, it was apparent that he had hydrocephalus with a large head and widely separated skull sutures. Background History. 3 The facts in this case as found by the Master on evidence which was amply available to her are set out in the following paragraphs. 4 In about September, 1991, Mrs Carlton became pregnant and consulted Dr Wilson, her local general practitioner. 5 At that time, there was a shared care plan by which half the treatment was provided by the general practitioner and half at the ante-natal clinic at John Hunter Hospital. In January, 1992 Mrs Clayton saw a doctor at John Hunter Hospital who wrote a referral for the Plaintiff to undergo an obstetric ultrasound at the surgery of Dr Raymond. Mrs Carlton contacted Dr Raymond's surgery but was told that he was on holidays at the time and that she should contact Lingard Hospital to arrange for the ultrasound. 6 She telephoned Lingard Hospital and spoke to a person who advised that they handled referrals for ultrasound examinations and made an appointment. 7 On 17 January, 1992 the Plaintiff underwent an obstetric ultrasound procedure at Lingard Hospital where she was told that all that was needed was a signed Medicare form which she duly provided. In the light of the knowledge she then had, Mrs Clayton assumed that the equipment was owned by the Hospital and the ultrasound was performed by an employee of the Hospital. 8 Mrs Clayton took with her a blank videotape and gave it to the ultrasonographer who performed the ultrasound and asked her to make a copy of the ultrasound. This was agreed to and done. 9 Subsequently Mrs Clayton was given a copy of the video tape of the ultrasound examination and also a copy of Dr Woodward's report. At the heading of this report appears the title "Hunter Valley X-Rays Pty Ltd (ACN003220497)" At its foot is a signature of Dr Woodward. 10 Under the heading - "Impression" the report states - "Single live mobile foetus of approximately 19 weeks gestation. The BPD is slightly reduced due to the scapho-cephalic configuration of the head. Foetal morphology is normal. Today's study is consistent with the clinical dates and an estimated date of delivery of approximately 13/6/92." 11 The Plaintiff intended to have the pregnancy terminated if the obstetric ultrasound report showed abnormality in the foetus. 12 Because the report of the ultrasound showed no abnormality the Plaintiff continued with the pregnancy. 13 Throughout the pregnancy Mrs Clayton suffered from morning sickness. In the latter part she suffered from heartburn which necessitated her to sit up in bed to sleep at night. She ceased paid employment three months prior to the expected birth of her child intending to return to work after the birth. 14 The pregnancy continued without problems until 24 June 1992 when she was admitted to John Hunter Hospital in labour. On that day the child, Alexander, was born and delivered by caesarean section. He was born with a spina bifida with a large open myelomeningocoele at the thoraco lumbar junction with associated complete paraplegia. He had hydrocephalus with a large head and widely separated skull sutures. 15 About a week after the birth, Dr Stephen Raymond requested a copy of the video tape of the ultrasound. The next day he informed Mrs. Carlton that at the very least she should have had a second ultrasound. 16 Under cross-examination, Mrs Carlton was questioned as to whom she blamed back in 1994. The following exchange occurred (transcript pp 11 and 12):- "Q. Perhaps amongst others you, in your mind, blamed Dr Woodward, for what had happened. Is that true? A. Yes. Q. Blamed the lady who had done the scan at the Hospital for what had happened? A. No. Q. Who, besides Dr Woodward did you have in your mind, was to blame? OBJECTION Q. If anyone, did you blame anybody else besides Dr Woodward? A. At the time, just her. Q. Did that change? That is, did you come to blame somebody other than Dr Woodward at some later time? A. It has been going on for so long, I don't know who is -- I know Dr Woodward made the mistake and if there were other people involved in making that mistake, then I blame them too." 17 In June, 1994, the Plaintiff's solicitor received a report from Dr Robertson dated 6 June, 1994, the relevant parts of which are as follows:- "I have viewed the video of this obstetric ultrasound examination performed at approximately 19 weeks gestation in January 1992. In my opinion, the ultrasound examination is clearly abnormal. The shape of the foetal head appears consistent with so called 'lemon' sign associated with spina bifida. I am unable to clearly see the cerebellum to determine whether a 'banana' sign due to herniation of the cerebellum is also present. Another cranial sign of spina bifida is the presence of hydrocephaly, which I do not see from the information provided in this ultrasound examination. However, there was no measurement of the lateral ventricles and so I cannot conclusively say that hydrocephaly has been excluded. There is obvious splaying of the lumbo-sacrial spine and this is evident in both the sagittal and transverse scans. No obvious cystic mass is present." And:- "In summary, I believe there is definite evidence on this ultrasound examination for spina bifida. Sometimes the ultrasound appearance of spina bifida can be difficult, however, the detection of this abnormality is enhanced with the recognition of cranial signs including the 'lemon' sign which is very obvious in this case. It is my opinion that as this information had been published in literature well before January, 1992, it should have been known to the ultrasonologist who reported on this examination." 18 On 29 September, 1994 a Statement of Claim, naming Hunter Valley X-rays Pty Ltd as the sole Defendant was filed. On 28 August, 1998 an amended Statement of Claim was filed adding Dr Woodward as the second Defendant. 19 By letter dated 20 May, 1999, the solicitors for the then two defendants wrote to the plaintiffs' solicitor annexing a cross claim and an amended defence. The cross-claim alleged that it was Lingard Private Hospital which performed the obstetric ultrasound examination and report. 20 Hospital Corporation Australia Pty. Ltd. carried on the business of a provider of medical services at premises known as Lingard Private Hospital. 21 On about 21 May, 1999 the Plaintiff became aware that Hospital Corporation of Australia Pty Ltd (which I shall refer to as HCA) had the care, control and management of Lingard Hospital and had been involved in performing the ultrasound. Up until then the Plaintiff had been of the view that it was Hunter Valley X-rays Pty Ltd which performed the ultrasound. This is not surprising in view of the fact that this is the name that appears at the top of the obstetric ultrasound report and that Lingard Hospital is referred to as only the place where Hunter Valley Xrays Pty. Ltd performed it. It was then that the plaintiffs were told by their solicitor that the person who performed the ultrasound was Ms Eadie and that she was, as at 17 January, 1992, employed by both Hunter Valley X-rays Pty Ltd and HCA. Until then, the nature of the contractual relationship between Ms Eadie and Hunter Valley X-rays Pty Ltd, and HCA and Dr Woodward would not have been apparent to the Plaintiffs. 22 On 26 May 1999 Dr Woodward filed the first cross claim against HCA and on 21 June, 1999, Hunter Valley X-Rays Pty Ltd filed a second cross claim against HCA. 23 On 20 August 1999 the plaintiffs' solicitor, Ms Cantle, had a discussion with the solicitor for the first and second defendants to check whether there was evidentiary material to support the allegations in the cross claim. Once this was confirmed she caused a further further amended statement to be filed on 23 November, 1999 which added HCA as a third defendant. 24 On 7 June, 2000 a Notice of Motion was filed by the plaintiffs seeking an extension of the limitation period within which to join HCA as a defendant. 25 It is common ground that the plaintiffs' claim arising out of the ultrasound which took place on 17 January, 1992 is statute barred. In support of an application for extension of the limitation period, the plaintiffs rely on s. 60G, s. 60I and alternatively on s.60C and s. 60E of the Limitation Act, 1969. 26 The Master held that the plaintiffs had discharged the onus upon them and satisfied her that it was just and reasonable that an order be made under s. 60G that the limitation period be extended. 27 She also considered the position under s. 60C and concluded that the cause of action arose on 24 June, 1992 and that, as the Motion was not filed until 20 June, 2000, it was outside the five year period specified in s. 60C(2). She, therefore, held that the plaintiffs' claim under that section failed. 28 I shall leave the findings on the cross claims for later consideration. The Grounds of Appeal. 29 The grounds of appeal may be summarised thus:- (1) The Plaintiff was aware of the connection between the injury sued upon and the acts or omissions of HCA at the expiration of the relevant imitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (2) The present application was not made within three years after the Plaintiff became aware (or ought to have become aware) of all three matters listed in Paragraphs (a) (i) to (iii) of section 60I. (3) There is no evidence of any real case to advance against HCA. The evidence goes only to fault on the part of the person who read the ultrasound and not to the manner in which that ultrasound was performed. (4) It is not just and reasonable that the time be extended because there is real prejudice to HCA and the Plaintiffs knew or ought to have known of the involvement of HCA as the operator of Lingard Hospital before the expiration of the time limit. Is this a Claim for Damages for Personal Injury? 30 The first question for consideration is when did the relevant limitation period expire? 31 Section 18(a) of the Limitation Act applies to a cause of action founded on negligence, nuisance or breach of duty for damages for personal injury. An action on such a basis 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 accrues to the plaintiff or a person through whom the plaintiff claims. 32 Thus it is necessary to determine whether the present case is one for damages for personal injury. 33 The Further Further Further Amended Statement of Claim filed on 16 March, 2001 in Paragraph 22 (a) alleges :- "By reason of the matters alleged in Paragraphs 17,20,20(A), 21 and 22, the Plaintiffs have suffered loss and damage." 34 No details are given of the loss and damage. 35 In the Particulars pursuant to Part 33 Rule 8A filed 17 March, 1998 the bulk of the particulars of damage are claims for the extra cost of support and treatment of the child, Alexander. However the final paragraph reads: - "By reason of the child's continuing disabilities and the constant need to provide care for him, the Plaintiffs suffer anxiety and depression." 36 It should be noted that no claim is made for injuries suffered prior to the birth of Alexander. The claims are limited to extra expenses and anxiety and depression arising from and after the birth. 37 In s. 11 of the Limitation Act "personal injury" is defined as:- "includes any disease and any impairment of the physical or mental condition of a person". 38 Accordingly, the action of the plaintiffs is clearly one for damages for personal injuries. When did the Plaintiffs' Causes of Action Accrue? 39 The next question that arises is - when did the causes of action accrue to the respective plaintiffs? The Master held that the cause of action accrued on the date of birth of the child, namely 24 June, 1992. Whilst accepting that Mrs Carlton suffered from morning sickness, heartburn and gave up work three months before the birth, she was of the view that they did not constitute measurable damages. The plaintiffs' depression and anxiety did not occur until after Alexander was born nor did they incur the additional expenses of raising and treating him until after he was born. 40 On behalf of HCA it was submitted that the plaintiffs' causes of action accrued at the time Mrs. Carlton sustained measurable damages. Such measurable damages were sustained in the form of heartburn which caused her to sleep sitting up at nights and the giving up of work three months before the birth. It was submitted that these are heads of damages which are clearly measurable and are not negligible. HCA also submitted that the fact that the plaintiffs make no claim for damages for these pre birth conditions does not mean that the cause of action did not accrue prior to the birth of the child. 41 In Scarcella v Lettice (2000 NSWCA 289) the Court of Appeal was confronted with a case where a Solicitor acting for a purchaser of land failed to detect a defect in title. The question for consideration was whether the cause of action arose at the time of the purchase or when the discovery of the defect in title took place. 42 The Court held that the cause of action accrued upon purchasing the property in 1982 in reliance on the defendant's negligence advice when they paid too much for the property. The defect in their title was one which normal conveyancing procedures should have revealed its existence. Consequently the action commenced in 1994 was statute barred. 43 Handley JA (page 5) pointed out that time commences to run under the Limitation Act when damage accrues even if the plaintiff is not aware of it. However, where an owner suffers loss because of the existence of latent defects in a building, it is now established that such loss accrues when the defects become manifest or are otherwise discovered and not before. This distinction appears to be based upon the reasoning that a defect in title is discoverable upon reasonable inspection at or about the time of purchase of the land whereas a latent defect in the building is not apparent until it manifests itself. The damage being loss in value of the land with defective title occurs at the time of purchase. In the case of latent defects in the building, the owner can honestly sell it as a sound structure and, therefore, suffers no loss until the latent defect becomes manifest. 44 At paragraph 24 Handley JA says:- "The general principle is that time runs from when the cause of action is complete, whether or not this is discovered or discoverable. The exceptions for latent defects in buildings, latent defects in title, and prospective and contingent losses are only apparent exceptions to this general rule. They depend in each case on a finding that the particular form of economic loss had not been suffered when the Plaintiff had become committed to the risk, but only later when the risk actually accrued." 45 It is argued that, in the present case, the plaintiffs accepted the report on the ultrasound as indicating that their unborn child was normal. Accordingly, Mrs. Carlton did not avail herself of the opportunity to terminate the pregnancy. She would have terminated it only if she had known of the abnormality of her unborn child. It was never her intention to undergo a termination merely to avoid what might be called the normal, although unpleasant, discomforts of pregnancy and giving up paid employment. Furthermore, it was not reasonable for them to conduct any further investigations to second guess the accuracy of Dr. Woodward's report. Thus, up to the time of Alexander's birth, the Plaintiff had not suffered any loss or damage arising out of the errors in the report and, consequently the cause of action accrued to the plaintiffs when they discovered that the report was inaccurate and that was at the date of birth of the child (24 June, 1992). 46 It is argued that further support for this proposition can be found in the judgments of the High Court in Hawkins v Clayton 164CLR539. 47 In that case a Testatrix made a will in 1979 appointing an executor and leaving him the residue of her estate. The will was retained by the solicitors by whom it was drawn. The Testatrix died in January, 1975 but the solicitors made no attempt to locate the executor and inform him of the will until March, 1981. In October, 1982 the executor obtained a grant of Probate. Between 1975 and March 1981 the main asset of her estate, a house, was permitted to fall into disrepair and to be vacant for a substantial time. 48 The question arose as to whether the cause of action accrued in 1975 or in March 1981. At page 562 Brennan J said:- "If a cause of action is itself an asset which devolves on an executor or arises from an infringement of the proprietary or possessory rights of an executor in respect of the estate, the executor's ignorance of his title would not prevent the time from running. But where no action can be brought by the nominated executor until he assumes office, time runs only from that event. Time commenced to run in this case only from Mr Hawkins' assumption of the office in March, 1981." 49 The present case, in my view is distinguishable. It is true that here no action could be brought by the plaintiffs until 24 June, 1992 when they became aware of the errors in the reading of the report of 17 January, 1992. However, the cause of action accrued once measurable damage was materially contributed to by that erroneous report regardless of the plaintiffs' lack of knowledge of its erroneous nature. It did not accrue only on and by virtue of the birth of the child. 50 Yet a further argument was based upon the judgment of Deane J at p. 589 where His Honour pointed out that there was a more general answer to the defence under the Limitation Act. "Its basis is to be found in the circumstance that, in the present case, the negligent failure of the firm to inform Mr Hawkins of the existence and contents of the testatrix's last will not only caused the damage which was sustained by him in the capacity of executor of the testatrix's estate but also effectively concealed from him for so long as he remained unaware of the contents of the will, the existence of the cause of action in negligence against the firm." 51 Applying this line of reasoning it is submitted that, in the present case, the negligent failure of the defendants to inform the plaintiffs of the true condition of their unborn child effectively precluded the institution of proceedings against those responsible until the plaintiffs finally became aware of that condition and that was not until the birth on 24 June, 1992. 52 On behalf of HCA it is submitted that the cause of action accrued on 20 February, 1992 being the last date upon which the pregnancy could have been safely terminated. The damage flowing from the negligent misreading of the ultrasound caused the Plaintiff to continue with her pregnancy and as a result of the pregnancy she suffered heartburn and stopped work three months before the date of birth of the child. These are clearly substantial or measurable consequences of the alleged negligence of the defendants. 53 The resolution of these conflicting submissions is to be found in the case of Cheney & Wilson v Duncan (2001 NSWCA 197) where the dicta of Deane J were distinguished and explained. Ipp AJA, with whom the other members of the Court agreed, looked to see if the plaintiff's statement of claim alleged conduct on the part of the defendant which could be said to have had the effect of precluding the plaintiff from suing the defendant before his claim became statute barred. The Court then found that the wrongful acts asserted by the plaintiff against the defendant did not preclude the plaintiff from bringing proceedings for the recovery of such loss within the statutory period. 54 Accordingly it is necessary to look at the plaintiffs' claim as pleaded to determine what loss it is that they allege occurred as a consequence of the defendants' negligence and, in particular to see whether such claim includes wrongful acts which precluded the plaintiffs from bringing proceedings for the recovery of such losses within the statutory period. 55 In the present case, the consequences of the defendant's negligence are:- 1. The loss of the opportunity to the plaintiffs for Mrs. Carlton to have the pregnancy terminated on or before 20 February, 1992. Had she availed herself of this opportunity she would have suffered:- a. the inconvenience, pain and suffering (both physical and emotional) associated with undergoing the termination procedure; b. the costs of that procedure; and c. some time lost from work with resulting economic loss. 2. Because she continued with the pregnancy to full term due to the loss of that opportunity caused by the defendants' negligence:- a. Mr. Carlton suffered no damage and loss until the birth of the child and thereafter suffered the extra costs of raising and caring for him together with anxiety and depression. b. Mrs. Carlton suffered, prior to the birth, heartburn and gave up work about three months before the birth - that is about 24 March, 1992. However, offsetting these heads of damage is the fact that she did not have the sufferings and losses set out in paragraphs 1 (a) to 1 (c) above. 56 Accordingly, I am satisfied that:- 1. The cause of action of Mr. Carlton accrued on the birth of Alexander on 24 June, 1992. 2. The cause of action of Mrs. Carlton accrued on about 24 April, 1992 - this being the date by which her damages flowing from the negligence of the defendants, after offsetting what she would have suffered and lost had she undergone the termination, could be said to be measurable and beyond that which can be regarded as negligible. 57 This means that the limitation period in respect of Mr. Carlton expired on 23 June, 1995 and that for Mrs. Carlton expired on 23 April, 1995. Section 60G of the Limitation Act. 58 I now pass to a consideration of whether the plaintiffs have established any entitlement to an extension of time under s. 60G of the Limitation Act. S.60(G) (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. " 59 This must be read together with s. 60I, subsection (1) of which provides:- 60I. Matters to be considered by court (1) A court may not make an order under section 60G or 60H 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 paragraph (a) (i)--(iii). 60 The Master found that the plaintiffs were unaware of the connection between the injury and the acts or omissions of HCA until May, 1999. Accordingly they were unaware of that connection as at the expiration of the limitation period or at a time before that expiration. This finding is attacked by HCA on the following bases:- (1) The Plaintiff in evidence said that she made an appointment with Lingard Hospital, the proprietor of which is HCA. (2) She was aware that she went to Lingard Hospital and had the ultrasound performed in that Hospital. (3) She signed a Medicare form at that Hospital in respect of payment for the service. (4) The Plaintiff conceded in cross examination that she assumed at 17 January, 1992 that the ultrasound equipment was owned by Lingard Hospital and that the procedure was performed by an employee of that Hospital. 61 The fallacy with this submission is that it equates awareness or knowledge, on the one hand, with assumptions drawn from known facts when the totality of the relevant facts are not know, on the other hand. In the light of the known facts at 17 January, 1992, such an assumption was quite reasonable. However, further relevant facts came to light and they are to be found in the contents of the report, the subject matter of the Plaintiffs' claim. 62 This report on the face of it, indicates that the ultrasound was performed at Lingard Hospital, but the report is provided by Hunter Valley X-Rays Pty Ltd and is signed by Dr Woodward. This document provides facts from which the reasonable inference is that there was an arrangement with Lingard Hospital, under which Hunter Valley X-Rays Pty Ltd occupied portion of the hospital where it and it alone provided ultrasound services and engaged Dr Woodward to interpret the ultrasound. This relegates the status of Lingard Hospital as merely the location where the ultrasound was performed. It exonerates Lingard Hospital from any responsibility for the performance of the ultrasound or for its interpretation. 63 In the light of this document, it can be said that the plaintiffs and their legal advisers were unaware before either 23 April, 1995 or 23 June, 1995 of the connection between the personal injury and any acts or omission of HCA. 64 The next question for consideration is whether the application was made within 3 years after the plaintiffs became aware (or ought to have become aware) of the three matters listed in paragraphs (a) I to iii. 65 On behalf of HCA, it is submitted that in the light of the location of the ultrasound, the plaintiffs or their legal advisers ought to have become aware of the connection between the plaintiffs' injuries and the acts or omissions of HCA more than three years before the present application was lodged on 7 June, 2000. The reason for this is that the plaintiffs were aware of the ultrasound being performed at Lingard Hospital. I have already pointed out the errors in this line of reasoning and I am comfortably satisfied that it cannot be said that the plaintiffs or their legal adviser ought to have become aware of the connection between the injury and the acts or omission of HCA prior to April or June 1995. 66 The next question that arises is when did they become aware of the connection between the injury and the acts or omissions of HCA. 67 The evidence of Ms Cantle, the solicitor for the plaintiffs is that the first notice she had of allegations against HCA was contained in a letter dated 20 May, 1999 from the Solicitors for the first and second defendants enclosing copies of the first defendant's amended defence and the first and second cross claims. 68 The relevant paragraphs of the cross-claim are as follows:- (8) The cross defendant by its servant or agent performed the obstetric ultrasound examination on or about 17 January, 1992. In performing the examination the cross defendant generated films and a video tape of the examination. (9) On or about 22 January, 1992, the cross defendant by its servant or agent, requested the cross claimant to prepare a report in relation to the examination. (10) On or about 22 January, 1992, the cross claimant prepared a report in relation to the examination. 69 Particulars of the negligence alleged against HCA are:- (a) Arranging for the obstetric ultrasound to be performed at a time when Dr Steve Raymond, who normally prepared the reports in relation to obstetric ultrasounds was unavailable. (b) Arranging for the obstetric ultrasound to be performed at a time when Dr Steve Raymond, to whom the second named plaintiff had been referred by her general practitioner was unavailable. (c) Failing to provide to the cross claimant a copy of the video tape of the examination. (d) Failing to inform the cross claimant that a video tape of the examination had been generated. (e) Failing to provide films of sufficiently high quality to enable the cross claimant easily and accurately to report on the films and (f) Failing to provide the films and video tape to the cross claimant within a reasonable time of performing the examination. 70 Ms Cantle then sought advice from Counsel. Being unsure as to the extent to which there was evidentiary material to support the allegations, on 20 August, 1999 she had a conversation with the solicitor for the first and second defendants and discussed this aspect. On the basis of what was disclosed in that conversation, she obtained instructions to seek leave to join HCA and a further further amended Statement of Claim was filed on 23 November, 1999. 71 At least some of that evidence disclosed to Miss Cantle appears in affidavits filed in this matter. The affidavit of Marianne Nicolle, sworn 21 August, 2000 says that she is employed by the solicitor for the first and second cross defendant (namely HCA). In that affidavit she says that she is informed by Debra Eadie, an ultrasonographer employed by the first defendant (Hunter Valley Xrays Pty. Ltd) and the first and second cross defendant (HCA) that she was the ultrasonographer who carried out the obstetric ultrasound on Mrs Carlton on 17 January, 1992. Her role was to carry out the obstetric ultrasound and provide the ultrasound films generated to the interpreting doctor. Thus, from this affidavit it appears, the ultasonographer who performed the subject ultrasound was employed by both Hunter Valley X-Ray Pty Ltd and Hospital Corporation Australia Pty Ltd. 72 Still further information came into the possession of the plaintiffs' solicitors in early April, 2001 as described in the affidavit of Anthony Carmichael, sworn 7 August, 2001. On 2 April, 2001, the plaintiffs' solicitor received a letter from the solicitors for the first and second defendants enclosing a copy of a report of Dr Peter Duffy dated 23 November, 2000 with a copy of their letter of instructions to him. The letter from the Solicitors to Dr Duffy asked certain questions, and I set out hereunder those questions and the answers given by the doctor:- (4) Q. We would be grateful if you could tell us whether having the video tape of the ultrasound examination assists the interpretation of the ultrasound films. A. Yes -- Yes. (5) Q. What degree of importance would a reasonable Radiologist, attach to the information available on a video tape of the ultrasound examination and why? A. The video tape demonstrates the presence of a neural tube defect and cranial abnormalities. (6) Q. Are you critical of the Hospital for failing to disclose that a video tape was available. A. Yes. (7) Q. In the light of the factual circumstances (as set out in attachment "A") do you have any comments or criticisms of any others involved in connection with the ultrasound examination and the extent to which their actions or omissions played a role in the ultimate outcome. A. From your attachment "A", it would appear that Dr Woodwind should have had no formal connection with the examination which, by the nature of its referral, should not have been undertaken by the Hospital in the absence of Dr Raymond. It would appear, to her misfortune, that Dr Woodward was acting out of charity to assist the Hospital to undertake Dr Raymond's duties. The legalities would appear complex and it would appear quite uncertain as to whether or not Mrs Carlton had a contract with the first defendant to undertake an ultrasound examination. The third defendant may well have cause to review its responsibilities for the delivery of unsupervised medical services (i.e. the obstetric ultrasound) for which it is difficult to determine which Medical Practitioner should take responsibility." 73 Because it contains much vital information on a number of issues involved in this appeal, a copy of Schedule "A" is annexed to this judgment. 74 In the light of this evidence, there is material upon which a Court would be entitled to find that HCA was in breach of its duty of care to the Plaintiff in failing to have an adequately qualified obstetric ultrasonographer perform the ultrasound, in failing to forward the video tape of the ultrasound to Dr Woodward, in failing to inform Dr Woodward that a video tape of the ultrasound procedure was available and also in having the ultrasound interpreted by Dr Woodward who then lacked the necessary experience in reading obstetric ultrasounds. 75 None of these matters were known to the plaintiffs or their solicitors at the expiration of the limitation period or at any time before that date. That knowledge became available at the earliest on about 21 May, 1999. The present application was made within three years after the plaintiffs became aware or ought to have become aware of the connection between the injury sustained by them and the acts or omissions of HCA. Accordingly I am comfortably satisfied that the requirements of section 60I have been met. 76 This however does not conclude the inquiry. The Court must be satisfied that it is just and reasonable to order that the limitation period be extended. 77 On this issue it is submitted by HCA that the plaintiff has failed to show that there is a real case to advance against it; the evidence is limited to the fault on the part of Dr Woodward in interpreting the ultrasound film; this concerns only Dr Woodward and possibly her employer Hunter Valley X-Rays Pty Ltd. 78 In the light of the material annexed to the affidavit of Mr Carmichael which is already outlined, including the annexure to this judgment, I am comfortably satisfied that there is a real case to advance as against HCA. 79 HCA also submits that it would suffer severe prejudice if the limitation period be extended. It points out that the evidence of the ultrasonogrpher, Debra Eadie, was that she completed a work sheet while carrying out the examination on which she wrote " ? spine wide". She gave the work sheet and the original ultrasound film to Dr Woodward. That work sheet has been lost. 80 Whilst I accept that the absence of that work sheet may cause some difficulties, the evidence of Debra Eadie and her recollection of the work sheet is such that secondary evidence can be given of it. Furthermore, annexure A includes the sentence: "Dr Woodward also recalls that she would have given her the ultrasonographer's work sheet and the request form." 81 I do accept that HCA does suffer some prejudice by reason of a time barred action against it being revived. This is taken into account. However the ultimate question is; can a fair trial be held? This means, fair to all parties. It does not mean a perfect trial. 82 The evidence clearly establishes that, apart from the work sheet, all records, including the film and the video tape are available and the persons involved, namely the ultrasonographer and Dr Woodward, are available. Accordingly the plaintiff has satisfied me that a fair trial can be had (see Holt v Wynter 49 NSWLR 128). 83 It is further submitted on behalf of HCA that under s. 60G what the Plaintiff 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. The submission continues that the plaintiffs knew of the involvement of Lingard Hospital from the outset, she initiated the proceedings against Hunter Valley X-Rays and that the plaintiffs' solicitor simply failed to consider the matter properly. 84 For reasons already given, these submissions are rejected. 85 Under all of these circumstances, the plaintiffs have comfortably satisfied me that they have discharged the onus upon them of establishing that it is just and reasonable to extend the limitation period under s. 60G of the Limitation Act as against HCA. Section 60C of the Limitation Act. 86 I now pass to a consideration of s. 60C and s. 60E of the Act. 87 S. 60C provides:- 60C. Ordinary action (including surviving action) (1) This 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 arising under the Compensation to Relatives Act 1897. (2) If an application 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, not exceeding 5 years, as it determines. 88 S. 60E (1) provides 60E. Matters to be considered by court (1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay, (b) the extent to which, having regard to the delay, 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, (c) the time at which the injury became known to the plaintiff, (d) the time at which the nature and extent of the injury became known to the plaintiff, (e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission, (f) any conduct of the defendant which induced the plaintiff to delay bringing the action, (g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received, (h) the extent of the plaintiff's injury or loss. 89 In relation to this part of the case the Master said :- "The cause of action arose on 24 June, 1992. Five years from that date is 24 June, 1999. The Motion was not filed until 20 June, 2000 which is outside the 5 year period specified by s. 60C(2). The Plaintiffs claim, under s. 60C and s. 60E fails." 90 I do agree that the closing clause of s. 60C(2) is ambiguous. Does it mean extend for such period not exceeding 5 years on top of the 3 year time limit, as it determines? Or does it mean, extend for such period not exceeding 5 years from the date on which the cause of action arose? 91 This ambiguity is cleared up when one looks at s. 60A which states:- "60A. Purpose of this Subdivision The purpose of this Subdivision is to provide a procedure for a 5 year (maximum) extension of the 3 year limitation period for personal injury cases. It applies to causes of action that accrue on or after 1 September 1990. " 92 This section refers to an extension of the 3 year limitation period. Thus it must mean that the 3 year limitation period can be extended to a maximum of 8 years. 93 The plaintiffs' notice of motion seeking extension of the limitation period was not filed until 20 June, 2000. This is just within eight years of the accrual of Mr. Carlton's cause of action but outside of eight years of the accrual of Mrs. Carlton's cause of action. 94 In case my findings on the plaintiffs' application based upon section 60G be wrong, I propose to consider, for the benefit of Mr. Carlton's cause of action, the situation under section 60C. 95 In view of the detailed consideration of the evidence already undertaken, I propose to go through the matters in s. 60E in somewhat short form. 96 The length of the delay is almost 8 years. The reasons for it are as set out earlier, namely the fact that, in the light of the form of the report provided by Hunter Valley X-Rays and the limited involvement of Lingard Hospital on the face of it, it was reasonable for Mr. Carlton and his solicitor to come to the conclusion that HCA had no connection with his damage. It was not until May, 1999 that further information came to light which implicated HCA. 97 I have already considered the question of prejudice and my findings are as set out earlier. 98 The time at which the injury and the nature and extent thereof, became known to Mr. Carlton was on and shortly after, 24 June, 1992. The time at which the Plaintiff became aware of a connection between the injury and the acts or omissions of HCA was not until May, 1999 for the reasons set out earlier. 99 It is not suggested that there is any conduct of HCA which induced Mr. Carlton to delay bringing the action. 100 In the light of the information available to Mr. Carlton and his solicitor, the solicitor took prompt steps to obtain medical, legal or other expert advice. 101 The extent of Mr. Carlton's injury and loss is quite considerable. 102 For reasons already given there is evidence to support a claim by Mr. Carlton against HCA. 103 Accordingly the plaintiff, Mr. Carlton, has satisfied me that it is just and reasonable to order that the limitation period for his cause of action be extended pursuant to s. 60C of the Act. The Application of the Cross Claimants. 104 I now pass to a consideration of the application made by the first and second defendants for an extension of the limitation period in which to institute cross claims against the third Defendant, HCA. 105 S. 60K provides:- "If a court orders the extension of a limitation period for a cause of action under subdivision 2 or 3, the limitation period is accordingly extended for the purposes of:- b) s. 26 (1)(b) in relation to any associated contribution action brought by the person against whom that cause of action lies." 106 The first and second defendants in this case, by their cross claims, seek contribution from HCA. Under s. 26(1) an action on a cause of action for contribution under Subsection 1 of Section 5 of the Law Reform (Miscellaneous Provision) Act 1946 is not maintainable if brought after the first to expire of: (a) a limitation of 2 years running from the date on which the cause of action for contribution first accrues to the Plaintiff or to a person through whom the Plaintiff claims and (b) a limitation period of 4 years running from the date of the expiration of the limitation period for the principal cause of action. 107 Accordingly the combined effect of s. 60K and s. 26 is that the limitation period is extended to the date on which I have given an extension to the plaintiffs and the time limit for the cross claims for contribution under section 26 runs from that date. AS TO COSTS 108 The Master pointed out that costs were discretionary and, after making special provision for costs in respect of 29 November, 2000, ordered that costs should be costs in the cause. I consider this to be the appropriate order in respect of the proceedings before the Master. However HCA has chosen to appeal and it has been unsuccessful. Accordingly I propose to order that HCA pay the plaintiffs' and the first and second defendants' costs of the Appeal. 109 It may well be that the three defendants will wish to file amended defences to the plaintiffs' Further, Further, Further Amended Statement of Claim and I propose to make provisions for this as well as provisions for the filing of further amended defences and/or cross claims should the defendants require it. 110 The Orders I make are: 1. The Appeal is dismissed. 2. Leave is granted to the plaintiffs to extend the limitation period against the 3rd Defendant, Hospital Corporation Australia Pty Ltd in respect of tort claims concerning the ultrasound performed on 17 January, 1992. Leave is not granted in relation to claims relating to breach of contract against Hospital Corporation Australia Pty Ltd. The limitation period is extended for 14 days from the date hereof.. 3. The Plaintiff is granted leave to add Hospital Corporation Australia Pty Ltd as the third Defendant in these Proceedings. 4. Leave is granted to the plaintiffs to file such further amended Statement of Claim as they or either of them may see fit within 14 days from the date hereof. 5. Leave is granted to each of the defendants to file such further amended defences and/or cross claims as they deem fit within 28 days from the date hereof. 6. The plaintiff's are to pay the defendants costs thrown away by the adjournment granted in the proceedings before the Master on 29 November, 2000 and otherwise the costs of the proceedings before the Master are costs in the cause. 7. Hospital Corporation of Australia Pty. Ltd. is to pay the costs of the Plaintiffs and of the first and second defendants of this appeal. I certify that this and the preceding 25 pages is a true copy of reasons for Judgment herein of the Honourable Acting Justice Cooper. Associate to Acting Justice Cooper: ……………………………………………. Last Modified: 11/22/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.