New South Wales Supreme Court CITATION : Golsby-Smith v Greater Murray Area Health Service & Ors [2004] NSWSC 387 revised - 10/05/2004 HEARING DATE(S) : 18 June 2003 JUDGMENT DATE : 7 May 2004 JUDGMENT OF : Dowd J at 1 DECISION : Period of limitation under the Act extended for the Plaintiff as against the Third and Fourth Defendants to 18 January 2002 and as against the Fifth Defendant to 2 July 2002; Costs reserved; Liberty to apply to restore the matter as to arguments as to costs and clarification of the formal orders. CATCHWORDS : Limitation on action - extension application LEGISLATION CITED : Limitation Act 1969 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED : Holt v Wynter (2000) 49 NSWLR 128 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Barry Golsby-Smith Greater Murray Area Health Service PARTIES : Wodonga Regional Health Service Dr Brett Todhunter Dr Janet Gilchrist Dr Vincent Ferraro FILE NUMBER(S) : SC 20227/01 (Plaintiff/Applicant) Mr D K Jordan COUNSEL : (First Defendant/Respondent) Mr B Hull (Fifth Defendant/Respondent) Ms J Lonergan (Plaintiff/Applicant) Ms K Stott - McLaughlin & Riordan Solicitors SOLICITORS : (First Defendant/Respondent) Mr R Leitch - Leitch Hasson Dent Solicitors (Fifth Defendant/Respondent) Ms Frances Allpress, Solcitor 10th Floor St James Centre - 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DOWD J Friday 7 May 2004 20227/01 BARRY GOLSBY-SMITH v GREATER MURRAY AREA HEALTH SERVICE & ORS JUDGMENT 1 HIS HONOUR: In these proceedings, the Plaintiff had by Further Amended Statement of Claim brought proceedings against the First Defendant, the Greater Murray Area Health Service, which operated the Griffith Base Hospital; the Wodonga Regional Health Service which operated Wodonga District Hospital as Second Defendant; and against the Third Defendant, a medical practitioner practising as a visiting medical officer at Wodonga Hospital. 2 The action was also brought against the Fourth Defendant, Janet Gilchrist, who operated as a medical practitioner at Coleambally, and the Fifth Defendant, who was a qualified medical practitioner carrying on practice as a general surgeon at Griffith. The cause of action was for various acts of medical negligence. 3 The Plaintiff had consulted the Fourth Defendant on 11 January 1993 as to chest pains, breathlessness and blood pressure. This condition worsened. On 8 January 1996 the Plaintiff consulted the Fourth Defendant for pain in the thoracic spine radiating into the chest and was referred to the Third Defendant in Wodonga. On 5 January 1999 the Plaintiff had a final consultation with the Fourth Defendant. 4 On 16 January 1999 the Plaintiff was admitted to the Griffith Base Hospital and was discharged the following day to the Wodonga District Hospital, from which he was discharged on 18 January 1999. 5 Whilst at the Griffith Base Hospital the Plaintiff was treated by the Fifth Defendant, who diagnosed a C5/6 disc prolapse as the cause of the pain. 6 On 21 January 1999 the Plaintiff travelled to Melbourne, and on 23 January 1999 suffered a myocardial infarction. The plaintiff was treated by home visit and was transported to the Box Hill District Hospital and thence on 30 January 1999 to the Alfred Hospital at Prahran in Victoria, where the Plaintiff discovered the full extent of the heart damage. At the Alfred Hospital the Plaintiff underwent a triple bypass on 30 January 1999. 7 The Plaintiff's case was that the neck pain was a wrong diagnosis, because in fact the Plaintiff was suffering from heart disease. The transfer to the Wodonga Hospital was for treatment of his neck pain as that was considered to be the primary problem. 8 The Plaintiff's case is that it was only after recovery from the operation on 31 January 1999 that he became aware of the damage done. 9 On 24 March 1999 the Plaintiff was sufficiently recovered to complain to the Fifth Defendant about the care that he received. 10 Proceedings were commenced on 29 March 2001 after the receipt of a medical report from a Dr John Vanen being the basis upon which the original Statement of Claim was filed. 11 The claim was that the Plaintiff suffered from myocardial ischemia from 1993, with an unstable angina pectoris from 1993 and from 15 January 1999 to 18 January 1999, and that if properly diagnosed on or prior to 18 January 1999 the Plaintiff would not have suffered the acute myocardial infarction and subsequent disease. 12 After the commencement of the proceedings, an error in the naming of the Second Defendant resulted in an Amended Statement of Claim being filed. At the first conference hearing under the Professional Negligence List, orders were made for the conduct of the proceedings, which included Interrogatories which formed the basis of the costs application against the First Defendant that I will refer to later. 13 In accordance with the timetable, the Interrogatories were served on the required date, namely 10 August 2001. The answers to these Interrogatories were required by 21 September 2001 but were not received until 25 January 2002. The Plaintiff had received further medical reports resulting in the addition of the Third and Fourth Defendants. The Amended Statement of Claim was filed on 18 January 2002. 14 The Plaintiff's case is that the heart attack happened on 23 January 1999 but the damage was not known until 30 January 1999 or within two or three days later, and thus those proceedings were brought within time as to the Third and Fourth Defendants. 15 There was exhibited before the Court a letter from the solicitors for the Third Defendant which neither opposes nor consents to the fourth Order sought in the amended Notice of Motion before me, which is the order which seeks leave to amend the Notice of Motion as to the grant of leave to continue proceedings against the Third, Fourth and Fifth Defendants pursuant to s60C or alternatively ss60F, 60G and 60I of the Limitation Act 1969 ("the Act"). 16 On 25 January 2002 the Plaintiff's solicitors received answers to the Interrogatories referred to earlier and became aware of the fact for the first time that Dr Ferraro was not in the employ of the First Defendant. On 12 March 2002, a copy of the proposed Further Amended Statement of Claim, which joins the Fifth Defendant, was sent to the solicitors for the First, Second, Third and Fourth Defendants seeking consent. On 7 June 2002 Studdert J granted leave to the Plaintiff to file a Further Amended Statement of Claim, reserving to the Fifth Defendant the right to plead a defence under the Act. The Further Amended Statement of Claim was filed on 13 June 2002. On 2 July 2002 the Defences of the Third and Fourth Defendants were filed. 17 The Fifth Defendant filed Grounds of Defence which pleaded the limitation period. It is not sought to proceed against the Fifth Defendant in terms of latency of injury. This Motion is brought pursuant to ss60C and 60E of the Limitation Act 1969. 18 The Plaintiff relies on Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197 per Mason P. That case reaffirms that s60C of the Act confers a judicial discretion which is a discretion to grant, not to refuse, an extension of the limitation period, and it is required that the Court must be satisfied that it is just and reasonable to make the order for extension. In addition, the Court must have regard to all the circumstances of the case, but in particular to the factors set out in s60E(1). The Court must also have regard to the rationale for the existence of limitation periods as identified in the Attorney-General's Second Reading Speech introducing the relevant sections. Those were examined at some length by Mason P. 19 In Zegarac (supra), Powell JA added the propositions that it must be just and reasonable to make the order for extension, in examining the matters set out in s60E(1) of the Act, and that even though there is an evidentiary onus on the defendant, the onus remains on the applicant. 20 The case of Holt v Wynter (2000) 49 NSWLR 128 applied Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and said that an application should be refused if the granting of an extension would result in significant prejudice to the potential defendant. 21 It is submitted by the Plaintiff that the cause of action accrued on either 23 January 1999 or 30 January 1999 and the relevant limitation period expired on 30 January 2002. In the light of the pleadings having been filed on 2 July 2002, the application seeks an extension of approximately four and a half months. 22 The Plaintiff contends that his explanation for delay is that it was not until his solicitors received the late Answers to Interrogatories that he was aware that the Fifth Defendant was not an employee of the First Defendant. This contention, it is suggested by the counsel for the Fifth Defendant, is disingenuous as the Plaintiff should have made enquiries before the expiry of the period. It is suggested that the Plaintiff's reliance on this is opportunistic and that the status of the Fifth Defendant was a matter that was reasonably discoverable beforehand. 23 It is further submitted by the Plaintiff that there is no evidence as to any prejudice and in fact clearly all hospital records are available, and the Court notes that Dr Ferraro was in reality put on notice by the fact of the complaint in 1999. It is further put by the Plaintiff that it is not contended that there is any conduct by the Defendant which caused delay in the bringing of the action, and also that the steps taken by the Plaintiff in obtaining medical, legal and expert advice does not reflect adversely on the Plaintiff. 24 It is put by the Fifth Defendant that it was not until July 2002 that the Plaintiff sought to sue Dr Ferraro; that this application is not supported by any evidence of inquiry or investigations to determine the status of Dr Ferraro; and that no explanation has been given as to why no such enquiries were made. It is further submitted, cogently, that plaintiffs are not entitled to sit back and wait for answers that may or may not arrive in time and that the statute of limitation was something which the Plaintiff ought to have taken into account in waiting that long period for reply of the Interrogatories. The framing of the Interrogatories show that it is clear that the Plaintiff was aware that Dr Ferraro might have had an independent status. 25 It is put on behalf of the Fifth Defendant, relying on Zegarac (supra), that it is not permissible for a Court to do a weighing up of prejudice against the Plaintiff as against the prejudice suffered by the Fifth Defendant. It is further submitted on behalf of the Fifth Defendant that an examination of the provisions of s60E of the Act does not entitle the Plaintiff to an extension, as all other relevant facts were known to the Plaintiff who was legally represented and simply failed to sue within time. 26 This Court must, in examining the exercise of power in s60C of the Act, have regard to the matters set out in s60E(1) of the Act to the extent that they are relevant. It seems to me, in taking into account each of the matters set out, that the delay in the circumstances is not extensive, and that for the Fifth Defendant, by virtue of the notice given to him in terms of the complaint made against him, it is unlikely that there is any loss of recollection or records. It seems to me that notice of the proceedings and the likely awareness of the action brought against the other Defendants means that the presumption of prejudice is unlikely to have a significant effect. 27 It is clear that the Plaintiff knew, from the fact set out above, the extent of the injury of which he had suffered and when he had suffered. There is no suggestion that the Fifth Defendant contributed in any way to the delay. 28 The matter of concern is the failure to take steps to determine the legal relationship between the Fifth Defendant and the hospital at which he operated, and the failure to explain that. There must, as a matter of common knowledge, always be a risk as to the status of a doctor working within the public hospital system. 29 It is difficult to take into account the Plaintiff's injury or loss, which is extensive, but the question arises as to whether there is any independent damage suffered against the other Defendants. 30 In my view, in examining the particular facts of this case, it seems to me that notwithstanding the failure to make further enquiries and failure to explain that, the extent of prejudice is negligible. It seems to me that the intention of the Legislature in creating limitation periods, primarily on an examination of the Attorney-General's Second Reading Speech, was primarily concerned about the position of the defendant, although there is reference to the desirability of defendants being able to limit their liabilities by calculating on the Limitation Act 1969 when assessing liabilities. 31 In the circumstances of the case and in the light of the relatively short period involved, it does not seem to me that this is the type of case contemplated by the Legislature as being one that should be barred, notwithstanding the failure to make appropriate enquiries and the failure to monitor the Answers to Interrogatories with consciousness of the approaching expiry date of the limitation period. 32 It seems to me that it is just and reasonable to make an order for extension until 2 July 2002. I wish to note however that the actual formal orders sought were not made clear at the termination of the proceedings and therefore I will reserve that issue for clarification. 33 Notwithstanding that certain submissions were made during the course of the hearing, I have been asked not to make a determination as to costs pending the result of this Notice of Motion. 34 The orders therefore that I propose are that: i. The Plaintiff have the period of the limitation under the Act extended as against the Third and Fourth Defendants to 18 January 2002 and as against the Fifth Defendant to 2 July 2002; ii. Costs be reserved; iii. The parties have liberty to apply to restore the matter as to arguments as to costs and clarification of the formal orders by arrangement with my Associate. ********** Last Modified: 05/10/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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