Simms v Western Sydney Area Health Service [2001] NSWSC 795

New South Wales Supreme Court

CITATION : Simms v Western Sydney Area Health Service [2001] NSWSC 795 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20642 of 2000; 20643 of 2000 HEARING DATE(S) : 3 September 2001 JUDGMENT DATE : 11 September 2001

20642 of 2000 Megan Simms (Plaintiff) v Western Sydney Area Health Service (Defendant) PARTIES : 20643 of 2000 Gordon Simms (Plaintiff) v Western Sydney Area Health Service (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr M J Cranitch SC/Mr D M Wilson (Plaintiffs) K Burke (Defendant) SOLICITORS : Beilby Poulden Costello (Plaintiffs) Lynn Boyd (Defendant) CATCHWORDS : Extension of limitation period - awareness of relevant issues - delay and inadequate explanation. Limitation Act 1969, s 60C, s 60E, s 60E (1) LEGISLATION CITED : (c), (d) and (e). Supreme Court Rules 1970, Pt 14C. CASES CITED : Gifford v Strang Patrick Stevedoring Pty Ltd [2001] NSWCA 175. McLean v Sydney Water Corporation [2001] NSWCA 122. DECISION : See Paragraph 26.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

TUESDAY 11 SEPTEMBER 2001

20642 of 2000 MEGAN SIMMS v WESTERN SYDNEY AREA HEALTH SERVICE 20643 of 2000 GORDON SIMMS v WESTERN SYDNEY AREA HEALTH SERVICE JUDGMENT 1 There are two proceedings before the court. In proceedings 20642 of 2000, the plaintiff is Megan Simms. In proceedings 20643 of 2000, the plaintiff is Gordon Simms. Gordon Simms and Megan Simms are husband and wife. 2 The Statements of Claim were filed on 23 November 2000. On the same day, in each proceedings, a Notice of Motion was filed seeking an extension of the relevant limitation period. 3 In each proceedings, a claim is brought for damages in respect of an alleged personal injury. The husband's claim is for nervous shock only. The alleged personal injury is said to arise out of the treatment afforded to Megan Simms when she attended the obstetrics and gynaecology department of Westmead Hospital in about 2 July 1997 and subsequent thereto. She had been pregnant since about 1996. Her son (Cameron Geoffrey Simms) was born with significant deficits which have been described as spastic quadriplegic cerebral palsy. Proceedings have been brought on his behalf and Megan Simms is named as tutor therein. 4 The Notices of Motion were heard on 3 September 2001. Both Megan Simms and Gordon Simms have sworn an affidavit. An affidavit has also been sworn by their present solicitor (Mr Poulden). Each of the three affidavits were sworn on 7 June 2001. Megan Simms has also relied on a short affidavit sworn on 3 September 2001. There has been cross-examination of all deponents. The defendant called Miss Jones to give brief oral evidence. She was not cross-examined. 5 Megan Simms first made contact with legal advisers in late July 1997 (Hickson Lakeman Holcombe). This was done when she was in hospital. Miss Jones took instructions and gave advice. She later gave a written advice (a letter dated 3 September 1997). It appears that this firm was not prepared to proceed on a contingency basis. About six months later, Megan Simms consulted McDonald Schroder, who sought an opinion from Professor Norman Beischer. He provided a report in about August 1998. On or about 16 September 1998 a brief was delivered to Mr Rout of counsel. 6 In September 1999, being concerned about a lack of progress, Megan Simms then consulted her present solicitor. According to Megan Simms he was first seen on or about 2 September 1999. According to Mr Poulden, he received instructions to act for the three members of the family following a consultation on 2 November 1999. He received the file from former solicitors in March 2000. The delay in obtaining the file was left unexplained. Briefs were then delivered to Messrs Wheelehan QC and Hooke of counsel on or about 17 March 2000. Mr Wheelehan QC returned his brief on 13 September 2000. This delay and the reason for the returning of the brief was also left unexplained. On 20 September 2000, a brief was forwarded to Mr Cranitch SC. A conference was then had with him on 3 October 2000. 7 Apart from what has already been mentioned there were meetings and/or discussions had with Mr Poulden. This emerged during cross-examination (not the affidavits). They related to inter alia the limitation period. 8 An attempt to file Statements of Claim was made on 24 October 2000. The attempt at filing was rejected by the Registry by reason of failure to comply with Pt 14C of the Supreme Court Rules 1970. On 14 November 2000, the Registrar was requested to waive certain of the requirements. Process was accepted by the Registry on 24 November 2000. 9 The relevant limitation period expired in July 2000. Paragraph 18 of the affidavit sworn by Mr Poulden tersely states:- "I failed to record the expiration of the limitation period in my diary." 10 The applications are brought pursuant to s 60C of the Limitation Act 1969 (the Act). The section enables the court to extend the limitation period, if it decides that it is just and reasonable to do so. In exercising the powers conferred on it by s 60C, a court is to have regard to all the circumstances of the case (inter alia to the extent that they are relevant to the circumstances of the case, the circumstances enumerated in s 60E). The applicant bears the onus of satisfying the court of an entitlement to relief. 11 The state of knowledge and credibility of each plaintiff became the subject of considerable cross-examination. During the giving of evidence, I closely observed the demeanour of all witnesses. In assessing reliability and credibility, I have had regard both to demeanour and evidence. 12 Megan Simms was an unimpressive witness. I formed the impression that she would say whatever she thought would best advance her case. She was troubled by lack of recollection. Her evidence exhibited a lack of candour. Her affidavit contains material that is false. It also contains material that was misleading. The affidavit conveys the impression of a document being drafted to give false or misleading impressions as to her knowledge of inter alia the limitation period. 13 She deals with this matter of awareness of the limitation period in paragraphs 5, 12 and 22 of the affidavit. Paragraph 5 involves a presentation that she was now aware that the limitation period had expired. Paragraph 12 conveys the impression that she became aware of the expiry of the limitation period following receipt of a letter from Mr Poulden dated 16 October 2000 (a letter which was not placed before the Court). Paragraph 22 unequivocally states that she was not aware that there was a three year limitation period until she became aware that it had expired. 14 Paragraph 22 is false. During cross-examination, she reluctantly conceded that she had become aware of the limitation period prior to its expiry. She gave oral evidence of being told of it by Mr Poulden. There was also oral evidence that she was told of it during the conference had on 3 October 2000. 15 In addition to these matters , there was the matter of a letter dated 3 September 1997. A part of it is in evidence. It advised her of the limitation period. This was a lengthy letter of advice which the court was asked to inspect. It appears also that when Miss Jones saw the plaintiffs at hospital, she may have then given oral advice as to the limitation period. 16 Megan Simms has deposed in an affidavit as to not recalling having received that letter and that after a thorough search of her documents and correspondence she was unable to find a copy of it. During her cross-examination she gave the impression of changing her position and moving towards the point of denying having received it. Her counsel conceded that in the normal course of events the letter should have reached the plaintiffs. I do not accept her evidence on the matter of the receipt of this letter. 17 Gordon Simms was also an unimpressive witness. His affidavit evidence was similar in many respects to that of Megan Simms. Largely, during his cross-examination, he professed to have a lack of recollection. One of his few purported recollections produced untrue evidence as to when he first became aware of the expiry of the limitation period (some short time before having sworn his affidavit). Apart from other sources of knowledge, he had been present at inter alia the 3 October 2000 conference. I am not satisfied that he was unaware of the limitation period prior to its expiry. 18 The evidence from Mr Poulden was also largely unedifying. His affidavit did not deal inter alia with the matter of the plaintiffs' knowledge of the limitation period. I gained the impression that he was intent on telling the court as little as possible. Like the plaintiffs, he had problems with recollection. To the extent that he had made diary notes, these were not of assistance in relevant matters. His affidavit conveyed the impression of being a product of careful draftsmanship. 19 Broadly speaking, his position seems to be that he was at all times aware of the limitation period and that it had only a short time to run. He seems to have come into the matter in either September or November 1999. His affidavit may be said to have provided miserly detail in respect of relevant matters during the period of his retainer. What he does say falls well short of adequately explaining inter alia the delay that took place during that period. 20 There had been considerable delay prior to his retainer. The material offered to explain that delay also has its inadequacies. 21 There is no evidence of actual prejudice and I am not satisfied that actual prejudice has been demonstrated. The possibility of what has been described as presumptive or general prejudice cannot be discounted. 22 The defendant also contended that the evidence did not reveal a viable cause of action being available to either plaintiff. Whilst I do not accept that submission, it can be observed that the claim sought to be brought on behalf of Gordon Simms appears to be a modest one having slender prospects of success (see inter alia Gifford v Strang Patrick Stevedoring Pty Ltd [2001] NSWCA 175). 23 It is a case where it would seem that the plaintiffs may have a good cause of action against Mr Poulden. The authorities establish that whilst this may be a relevant matter to take into account it is considered to be a matter which does not attract great weight. 24 However, in the circumstances of this case, it seems to me that the knowledge had by the plaintiffs and their solicitors (including the early awareness as to matters of injury, liability and the limitation period) together with the delay and the inadequate explanation given for it are matters which should be given weight. It is not said that knowledge of any relevant issue did not come to either plaintiff until after the limitation period had expired. 25 As was said in McLean v Sydney Water Corporation [2001] NSWCA 122, it does not follow that in the absence of prejudice (other than general prejudice) and unlikelihood of a fair trial, it will be just and reasonable to grant an extension of time. The extent of awareness of relevant issues is material (see inter alia, (c), (d) and (e) of s 60E (1). 26 In the circumstances of this case, I am not satisfied that the onus borne by each plaintiff has been discharged. Accordingly, I am not satisfied that it is just and reasonable to make an order. Both Notices of Motion are dismissed. In each application, the plaintiff is to pay the costs of the application. **********