Kylee Sharee Willis v Dr. Ganesha Thambipillay & Greater Murray Area Health ServiceJason Edward George Willis v Dr. Ganesha Thambipillay & Greater Murray Area Health Service [2003] NSWSC 553

New South Wales Supreme Court

CITATION : Kylee Sharee Willis v Dr. Ganesha Thambipillay & Greater Murray Area Health ServiceJason Edward George Willis v Dr. Ganesha Thambipillay & Greater Murray Area Health Service [2003] NSWSC 553 HEARING DATE(S) : 19 June 2002 JUDGMENT DATE : 24 June 2003

JUDGMENT OF : Sully J at 1 DECISION : Application granted; Limitation period extended to and including 27 September 2002; Costs in the cause; Liberty to all parties to apply on 24 hours' notice

LEGISLATION CITED : Limitation Act 1969 (NSW) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED : Holt v Wynter (2000) 49 NSWLR 128 Hampton Court Limited v Crooks (1957) 97 CLR 367 at 371, 372 Kylie Sharee Willis PARTIES : Dr. Ganesha Thambipillay Greater Murray Area Health Service Jason Edward George Willis FILE NUMBER(S) : SC 20420/02; 20421/02 A. Casselden - Plaintiffs COUNSEL : J. Downing - First defendant J. Lonergan - Second defendant Commins Hendriks - Plaintiffs SOLICITORS : Tress Cocks & Maddox - First defendant Frances Allpress - Second defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

24 June 2003

20420/02 – KYLIE SHAREE WILLIS v DR. GANESHA THAMBIPILLAY & GREATER MURRAY AREA HEALTH SERVICE

20421/02 – JASON EDWARD GEORGE WILLIS v DR. GANESHA THAMBIPILLAY & GREATER MURRARY AREA HEALTH SERVICE

JUDGMENT

1 HIS HONOUR: Before the Court are two separate, but identical, applications by Mr. Jason Willis and his wife, Mrs. Kylie Willis. Each application seeks an extension of the limitation period fixed by the Limitation Act 1969 (NSW), ("the Act") for the bringing of an action, both in tort and in contract, for damages. 2 Mr. and Mrs. Willis have commenced in this Court proceedings instituted by Statement of Claim. Each Statement of Claim was filed on 17 September 2002. In each case there are two defendants, Dr. Ganesha Thambipillay, ("the first defendant"), and the Greater Murray Area Health Service, ("the second defendant"). In each case there are two causes of action, namely, negligence and breach of contract; and the damages claimed are damages for nervous shock in connection with the diagnosis and treatment of the medical condition of Grace Elizabeth Willis, who was born to Mr. and Mrs. Willis on 19 February 1997. 3 In August 1997 Grace Willis, then aged 6 months, was admitted to Wagga Wagga Base Hospital under the care of the first defendant. The hospital was a public hospital conducted by the second defendant. 4 The initial hospitalisation was on 27 August 1997 at about 8.30 a.m. Throughout that day and into the night the baby's condition was monitored. The baby was suffering in fact from meningococcal septicaemia, but no diagnosis of that condition was made. At about 10.50 p.m. the baby's condition had deteriorated to a point at which it was decided to transfer her to Sydney for further treatment. That further treatment entailed a correct diagnosis, followed by the amputation of both of the baby's arms and legs. 5 It is claimed by both Mr. and Mrs. Willis that these traumatic events caused them nervous shock. It is not disputed that the available evidence shows, at least, a prima facie case that each of them has indeed suffered such injury. 6 On 6 February 1998 Mr. and Mrs.Willis lodged a formal complaint with the second defendant. The complaint queried the adequacy of the diagnosis and treatment of the baby, and of the facilities provided in those respects. The lodging of the complaint was acknowledged by letter on the same day, and it was indicated that the second defendant had commenced an investigation into the substance of the complaint. 7 On 17 February 1998, and at the suggestion of an officer of the second defendant, Mr. and Mrs. Willis lodged a formal written complaint with the Health Care Complaints Commission. That complaint was investigated by the Commission; but the progress of the investigation was slow, and it was not completed until April 2001. 8 On 12 April 2001 Mr. and Mrs. Willis received the Commission's report. The report found that the complaints against both the first defendant and the second defendant had been substantiated. 9 Thereafter, and on 2 April 2002, Mr. and Mrs. Willis consulted a solicitor. They were advised, among other things, that the relevant limitation period had expired; and that it would be, therefore, necessary to apply for an extension of time within which to bring suit. It is not disputed that from 2 April 2002 until 17 September 2002, when the Statements of Claim were lodged, Mr. and Mrs. Willis and their legal advisers moved with reasonable despatch. 10 The present applications were lodged on 5 December 2002. At the hearing of the applications, it was accepted that the causes of action accrued on 27 August 1997, so that the statutory limitation period of 3 years expired on 27 August 2000. 11 The questions now to be decided are set by the provisions of sections 60C and 60E of the Act. Those sections provide: " 60C Ordinary action (including surviving action) (1) ……………………………… (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. 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. …………………………………………………………." 12 It is convenient to take up first the specific matters which section 60E requires to be taken into account. · (a) The length of and reasons for the delay 13 The length of the delay in the present cases is some 5 years 1 month, that is, from 27 August 1997 to 17 September 2002. 14 The reasons for that delay are: