Goles v Wassif [2001] NSWSC 801

New South Wales Supreme Court

CITATION : Goles v Wassif [2001] NSWSC 801 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20339 of 2001 HEARING DATE(S) : 10 September 2001 JUDGMENT DATE : 12 September 2001

Vesna Goles (Plaintiff) PARTIES : v Dr Salvia Wassif (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr Jay Anderson (Plaintiff) Mr I McGillicuddy (Defendant) SOLICITORS : D Stanefska & Associates (Plaintiff) Tress Cocks & Maddox (Defendant) CATCHWORDS : Extension of limitation period - viable cause of action - explanation for delay. LEGISLATION CITED : Limitation Act, 1969, s 60C, s 60E, s 60E (1) (a). CASES CITED : N/A DECISION : See Paragraph 24.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 12 SEPTEMBER 2001

20339 of 2001 VESNA GOLES v DR SALVIA WASSIF JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 19 April 2001. The defendant is a medical practitioner. On 3 June 1997, the plaintiff consulted the defendant for advice and treatment. She suffered an aneurysm. The plaintiff alleges professional medical negligence and claims damages. 2 Prior to the commencement of the proceedings, the relevant limitation period had expired. On 19 April 2001 she filed also a Notice of Motion seeking an extension of time pursuant to s 60C of the Limitation Act , 1969 (the Act). 3 The Notice of Motion came on for hearing on 10 September 2001. The plaintiff relied on her own affidavit (sworn on 2 April 2001). It annexed inter alia a copy report from Dr Pell and a copy report from Dr Kremer. She was cross-examined. The defendant relied on an affidavit sworn by Mr Munro (the solicitor for the defendant). It annexed inter alia notes of the defendant. She tendered documentation (hospital notes). 4 The plaintiff suffers from inter alia aphasia. It is relevant to her capacity to give evidence. She has memory deficits and difficulties in communication. This was apparent during her cross-examination. She was lacking in recollection on a number of matters. Her recollection in respect of a number of matters differed from what appeared in both the defendant's notes and the hospital notes. 5 On Monday 2 June 1997, when shopping, it appears that she experienced the sensation of headaches associated with pain travelling up her body from her legs. She left the shop and vomited outside. The headaches persisted. On Tuesday 3 June 1997, she was at work for part of the day and then consulted the defendant. There is conflict between the plaintiff's recollection of the consultation and what is recorded in the defendant's notes. The headaches continued to persist. The defendant's notes record that she was telephoned by the plaintiff about 1.30 pm on 4 June 1997. The notes record that the plaintiff was asked to come and see the defendant "now". The plaintiff did not do so and she is lacking in recollection concerning this matter. It was not until about 11.30 on Thursday 5 June 1997, that the plaintiff sought further medical help. She went to Concord Hospital and was admitted. She was observed to have some mild neck stiffness but no other focal neurological deficit. She underwent a CT scan and angiography. The latter established that she had suffered an aneurysm. There is material (the report from Dr Pell) which identifies the time at which the aneurysm occurred ("she was five days post bleed"). She was reviewed on 6 June 1997 and it is noted that she was in good neurological condition. On 7 June 1997, she underwent surgery (which was performed by Dr Pell). The risks of this surgery included hemiparesis and aphasia. These were two main problems that she was left with following the surgery. 6 The plaintiff's affidavit states that she consulted her solicitors first on 9 December 1999 (at the suggestion of a family friend). At that time, she regarded her problems as being due to bad treatment from the defendant and she wanted to sue the defendant. Thereafter, the solicitor made some telephone inquiries concerning a grant of legal aid. 7 She next conferred with the solicitor on 17 March 2000. Instructions were then given to investigate her prospects of success. During April 2000, the solicitor wrote to inter alia Concord and Balmain Hospitals and also to Dr Pell. A cheque in payment of the report obtained from Dr Pell was forwarded on 6 June 2000. She had a conference with counsel (Mr Anderson) on 21 August 2000. He advised that it would be necessary to obtain a report from a medical expert. An arrangement was made to see a medical expert (Dr Kremer). She was examined on 25 August 2000. He prepared a report which is dated 4 September 2000. The solicitor did not receive that report until 11 January 2001 (no explanation is offered for that delay). The hospital notes were received on 6 October 2000. The defendant and her insurer were put on notice of the claim by letter dated 6 February 2001. She had a further conference with Mr Anderson and her solicitor on 7 March 2001. It was then that she gave instructions for the preparation of this application to the extend the limitation period. 8 The Statement of Claim is dated 29 March 2001. It was not in fact filed until 19 April 2001. As was the case with other instances of delay, no attempt was made to explain this delay. 9 Section 60C of the Act 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. 10 The defendant resists the application on two grounds. Firstly, it is said that it would be futile to grant relief because there is no viable cause of action. Secondly, it is said that there has been a failure to explain away the delay. 11 There is no evidence of actual prejudice. Indeed, counsel for the defendant did not refer to any matter of prejudice during his submissions. 12 There is abundant authority for the proposition that the viability of the plaintiff's cause of action may be a relevant circumstance in deciding whether or not it is just and reasonable to make an order. 13 The plaintiff relies on the report from Dr Kremer. The defendant points out that the report is based at least partly on an erroneous history. It was prepared without the benefit of the notes and other material which was before the court. He proceeded on the assumption that she had seen the defendant prior to the aneurysm rupturing. 14 The evidence throws up causation problems for the plaintiff. On the material before the court, the aneurysm occurred prior to the plaintiff consulting the defendant. The major problems of which she now complains were risks of the surgery. 15 In addition to these causation problems, there are other problems. Counsel for the defendant has undertaken an analysis of the allegations of breach of duty appearing in paragraph 4 of the Statement of Claim. He has looked to the evidence to demonstrate that even if certain of them were established they would not assist the plaintiff in this case. There are a few which turn on the dispute between the plaintiff's oral evidence and what appears in the notes. These interlocutory proceedings are not the appropriate forum in which the court should determine disputed matters of fact. 16 However, in this case, it is unnecessary to dwell on these problems. It seems from the material that even if the plaintiff was ultimately successful in any of these disputed areas she may have at best but a small claim only against the defendant. 17 I now turn to the question of explanation for the delay. The "reasons for the delay" are referred to in (a) of s 60E (1) of the Act. It seems to me that the criticism levelled by the defendant at the little that has been offered to explain delay is well founded. 18 The plaintiff did not consult her solicitor until December 1999. The explanation for the delay prior to that time is inadequate. There is what is said generally in paragraph 12 of her affidavit. However, the period of time during which these problems affected her is left vague and unspecified. 19 At the time that she consulted her solicitor, the relevant limitation period was still extant. It did not expire until 3 June 2000. 20 In these cases, it is usual to have an affidavit from the solicitor. In this case, the solicitor has remained silent and there is no affidavit from her. 21 The plaintiff's affidavit does little more than inform as to dates upon which certain things happened. The dates themselves do not suggest any sense of urgency. The conduct of the matter is littered with periods of delay or inaction. Largely, little is put forward to explain it. 22 The plaintiff's material is silent as to the matter of the relevant limitation period and the knowledge (if any) had of it. Consequently, the material leaves unexplained how it came to pass that it was allowed to expire without the prior commencement of proceedings. The conduct of the matter seems to have lacked the sense of urgency that knowledge of the limitation period (which was soon to expire) could be expected to excite. 23 In the circumstances of this case, I am not satisfied that the plaintiff has discharged the relevant onus. Accordingly, I do not decide that it would be just and reasonable to make an order extending the limitation period. 24 The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. The Exhibit may be returned. **********