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: (1) From 27 August 1997 to 12 April 2001 Mr. and Mrs. Willis were preoccupied with three interlocking concerns: first , to have the Health Care Complaints Commission conduct a thorough investigation into how their daughter's diagnosis and treatment had gone so terribly wrong; secondly , to give their disabled daughter their full attention so that her ongoing needs would be correctly identified and properly met; and thirdly , to deal with the fact that, as Mrs. Willis put it in her oral evidence, and I accept, "we were barely holding ourselves together" . (2) From 12 April 2001 until 2 April 2002, the second and third of the foregoing concerns continued. The report having come to hand, Mr. and Mrs. Willis, according to the oral evidence of Mrs. Willis, which I accept, took some time to settle down to a thorough consideration of its terms; and to consider further the question where they could, or should, or would, go from there. I am satisfied that until 2 April 2002, when Mr. and Mrs. Willis first sought legal advice, they had not given any serious consideration to their respective entitlements to recover in an action at law damages for nervous shock; they had not received any proper professional advice in that regard; and they did not have, otherwise, any real grasp of what possibilities might be available to them in that behalf. (3) After 2 April 2002 it would seem that everything was done with reasonable despatch. There is, in my opinion, no evidence to the contrary. It was submitted for the defendants that there had been a failure adequately to explain delay. I do not agree. Mr. and Mrs. Willis were, in August 1997, young people in their 20's. The baby was their first child. The realisation on 27 August 1997 that the baby's condition was so serious as to justify immediate transfer to Sydney, and the growing realisation thereafter about just how serious that condition was; about the catastrophic procedure necessary to save the baby's life; and then, day after day, year in and year out, about how gross and permanent were their baby's deficits, must have been, as both Mr. and Mrs. Willis described, an utterly shattering experience, coping with which was in effect an all-consuming pre-occupation. 15 Having what seems to me to be a sensible, practical and humane regard to the entirety of that situation, I am satisfied that relevant delay has been adequately explained. · (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 16 No evidence was led orally by either defendant. The second defendant read no affidavit. The first defendant read an affidavit by a solicitor, the affidavit doing no more than identify annexed hospital notes from the Wagga Wagga Base Hospital. 17 The annexed hospital notes are a copy of the original notes. They are not easy to decipher, or to interpret. I am not able to deduce from them anything demonstrating the abovementioned and narrowly particularised kind of prejudice. · (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. 18 It is not possible, in the circumstances of the present applications, to deal with these matters in any cut-and-dried temporal terms. 19 Each of the present applications is supported by an affidavit of Dr. Gertler, Psychiatrist. Those reports, strictly speaking, would fix 27 August 1997 as the date of the suffering, by each of the plaintiffs, of nervous shock. I proceed accordingly, but with reservations that cannot be resolved in precise temporal terms upon the basis of the available evidence. 20 I infer from that evidence that it was obvious to Mr. and Mrs. Willis on 27 August 1997 that they were faced with a situation of great stress. I should think that it is a fair inference that each of them had, there and then, a stark sense of fear about what was unfolding. That fear, and its resulting anxieties and stresses, must have grown day by day as the awful truth, and its appalling consequences, became ever clearer and ever more inescapable. As to (c), this date can be fixed on the probabilities at 12 April 2001, the date upon which both Mr. and Mrs. Willis received the Health Care Complaints Commission's report. It is to be noted that by that date the three year limitation period had in any event expired. · (f) Any conduct of the defendant which induced the plaintif 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 21 There is nothing that I can add usefully to what I have earlier written. · (h) The extent of the plaintiff's injury or loss. 22 Dr. Gertler's conclusions respecting Mrs. Willis are: "In my opinion, Mrs. Willis suffered nervous shock on 27 August 1997 whilst observing the gradual deterioration and near death of her daughter Grace from undiagnosed meningococcal septicaemia. Her description of her feelings at the time are consistent with an acute dissociative reaction. Since that time Mrs. Willis has had to try and cope with the reality of a severely disabled child. Although she has been able to manage for the most part with support from others, she nevertheless remains primarily responsible for Grace's day to day activities and well-being. At times Mrs. Willis finds that she cannot cope on an emotional level and becomes depressed. Counselling has been of assistance to her in the past, and continues to be of benefit as required. Mrs. Willis does in my opinion suffer from an adjustment disorder with depressed mood. Her level of depression is mild to moderate. She will require ongoing psychological counselling at times of increased stress when she finds herself decompensating emotionally. She is likely to require up to ten sessions a year at a cost of approximately $150 each, for the next 3 – 5 years. The prognosis for Mrs. Willis' adjustment disorder with depressed mood remains uncertain. Whilst superficially she appears to be coping with her daughter's situation, she does react adversely to certain situations which remind her of Grace's disability and the circumstances which led to it, and I would expect that to continue for the foreseeable future, albeit on a gradually decreasing basis." 23 Dr. Gertler's conclusions respecting Mr. Willis are: "In my opinion Mr. Willis suffered nervous shock at the time his daughter Grace developed meningococcal septicaemia, which was initially not diagnosed and which subsequently led to her near death and residual major disability. His description of his feelings at the time that her condition was finally diagnosed and resuscitative measures commenced, is consistent with a significantly shocked state. Although Mr. Willis attempted to cope emotionally after the events of August and September 1997, he appears eventually to have decompensated emotionally. He required several sessions of counselling at the time some two years after Grace's critical illness. At times he still decompensates emotionally and becomes "upset", however is able to deal with the feelings through discussion with his wife. Mr. Willis does not in my opinion suffer from a clinical psychiatric illness at the present time. There are occasions such as those mentioned above when he does require the opportunity to express his feelings, and it is conceivable that over the next several years he may need to see a psychologist again on occasion. I would expect him to require counselling undertaken by a psychologist 2 – 3 times a year on average for the next five years. The cost of such counselling would be of the order of $150 per session." 24 The particular factors (a) – (h) inclusive above are, by section 60E inclusive, and not exclusive, mandatory considerations. There is, by virtue of section 60E, a mandatory requirement to have regard, otherwise, to "all the circumstances of the case". It will be necessary to consider, presently, some aspects, both of law and of fact, of the factor of potential prejudice to the defendants should the present applications be granted. That topic apart, there is nothing that I can add usefully to what I have previously written, in description of "the circumstances of the case". 25 There remains the basal question, as posed by section 60C: "is it just and reasonable" to grant the applications? 26 The defendants submitted that an extension would not be "just and reasonable". They relied upon the proposition that, notwithstanding the absence of any evidence of actual prejudice, they were to be presumed to have been prejudiced; and that such presumptive prejudice sufficed to make it unjust and unreasonable to grant the present applications. 27 This proposition was said to be supported by the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Particular reliance was placed upon passages in the judgment of McHugh J. Four such passages are immediately relevant. 28 First, and in connection with the legislative rationales that underpin limitation legislation such as the Act, his Honour says: "Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. ………………………….. . Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible." [at 552, 553] 29 Secondly, and in connection with the burden, generally, of proof, His Honour says: "A limitation provision is the general rule; an extension provision is the exception to it. …………………….. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." [at 553, 554] 30 Thirdly, in connection with actual prejudice, his Honour says: "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action." [at 555] 31 Fourthly, in connection with presumed prejudice, his Honour says: "The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. ………………………… So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose." [at 551] 32 The Brisbane South decision was considered by a specially convened Bench of five Judges of the Court of Appeal of this Court in Holt v Wynter (2000) 49 NSWLR 128. Four of those Judges agreed with the following proposition, as articulated by Sheller JA; "In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant." [at 147 (119) ] 33 The foregoing authorities are binding on me; and if the present defendants had demonstrated actual prejudice were the applications to be granted, then I would have felt bound to refuse the applications. 34 The present applications are not, however, as simple as that. For, as I have earlier explained, the defendants did not claim to be able to demonstrate actual prejudice. Their point is, rather, that they are to be presumed to have suffered prejudice; and that it should be found that such presumed prejudice would make the granting of the present applications unjust and unreasonable. 35 The difficulty that I have with that approach is that I cannot see a rational link between the suggested premise and the suggested conclusion. 36 Let it be supposed that I am required to accept the suggested premise. What follows? 37 It cannot be correct to say, simply, that the mere fact of presumed prejudice, wholly unparticularised beyond the bare articulation of the bare presumption, must entail as a matter of course injustice and unreasonableness if a particular application to extend a limitation period be granted. For one thing, McHugh J, for all the forcefulness of his Honour's analysis of presumed prejudice, does not go, as I read his Honour's judgment, so far. For another thing, such a simplistic equating of presumed, but unparticularised, prejudice with injustice and unreasonableness seems to me to entail a process of reasoning that is, in substance, contrary to the relevant provisions of the Act itself. 38 It must be, surely, necessary to ask in a precise way why the premise of presumed prejudice leads in the particular case to the conclusion that it would be unjust and unreasonable to extend the relevant limitation period. 39 That question, if asked seriously, cannot be answered seriously except by reference to the evidence in hand. That makes relevant a principle stated as follows by Dixon CJ in Hampton Court Limited v Crooks (1957) 97 CLR 367 at 371, 372. That particular case did not concern an application to extend a limitation period. The case was concerned, rather, with an action at law claiming damages for personal injury resulting from alleged actionable negligence on the part of the particular defendant. In that context, Dixon CJ said: "…………….. (T)he case is one where the facts can hardly be within the knowledge of the plaintiff and, at all events so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant: …………………… but a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it , in accordance with the often repeated observation of Lord Mansfield in Blatch v Archer :………………… ." [emphasis added] 40 If one applies that principle to the evidence now before this Court, relating that evidence to each of McHugh J's four "rationales for the enactment of limitation periods", then it seems to me that there is not a scintilla of evidence touching upon any of the first three of the four rationales; and that there is nothing to show injustice or unreasonableness detrimental to the broad public interest, the protection of which is at the heart of the fourth rationale. 41 I acknowledge and accept at once the importance of ensuring that such an approach does not bring about an erroneous reversal of the onus of proof on the ultimate issue. To that end I pose the ultimate issue in the terms used by McHugh J: "The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." 42 As the evidence stands, I am comfortably satisfied that, in each application, it has been affirmatively established by the applicant that "the justice of the case requires" that the extension sought should be granted. 43 Each application seeks orders in these terms: "1. That the limitation period for the bringing of the cause of action be extended. 2. Any such other or other orders as the Court deems fit. 3. Costs." 44 I do not think that so open-ended an order as is sought in paragraph 1 is appropriate. An extension of time to and including 27 September 2002, i.e. an extension of 2 years and 1 month, is in my opinion appropriate. That date is the anniversary date closest in time to 17 September 2002, the actual filing date of the Statements of Claim. I shall reserve to all parties liberty to apply on 24 hours' notice in writing, either by letter or by facsimile transmission. I note for more abundant caution that the proposed order is intended to give the minimum extension necessary to validate the proceedings that have in fact been commenced. 45 There remains the matter of costs. 46 I take in that connection initial guidance from the approach of Sheller JA in Holt v Wynter. His Honour says at 147(121): "In relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. Although ………….. (the relevant primary Judge) ……….. was satisfied that the evidence explained and excused the applicant from any responsibility for the delay, the fact remains that one or more of the solicitors she retained were responsible for the delay. The respondent was not. In the circumstances, particularly having in mind the question raised about the availability of medical records, I do not regard the respondent's decision to resist the application as unreasonable." 47 I have quoted the foregoing passage in full in order to point out some considerations, particular to that individual matter, which led Sheller JA, (three other members of the Bench concurring), to conclude that there should be an order that the successful applicant pay the costs of the application; such order not to be enforced without prior leave of the trial Court, prior to final judgment in the action. 48 Priestley JA, by contrast, concluded that the appropriate costs order was that the costs of the application be costs in the cause. His Honour refers to two other cases in which that course was taken at first instance and not disturbed on appeal. 49 It seems to me that the facts of the present applications are not on all fours with the facts of Holt v Wynter. In those circumstances it seems to me that the justice of the two present cases is better met by an order that in each case the costs of the application be costs in the cause. 50 In each application I make, accordingly, the following orders: [1] The application is granted. [2] Order that the limitation period be extended to and including 27 September 2002. [3] Order that the costs of the application be costs in the cause. [4] Grant liberty to all parties to apply on 24 hours' notice in writing, either by letter or by facsimile transmission. ********** Last Modified: 06/24/2003 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. 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