New South Wales Supreme Court CITATION : Gail Theresa Taylor & Anor v Central Coast Area Health Service & Ors [2005] NSWSC 724 HEARING DATE(S) : 19 July 2005 JUDGMENT DATE : 22 July 2005 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Malpass at 1 DECISION : The limitation period for the cause of action pleaded in the statement of claim is extended up to and including 18 November 2003; the plaintiffs are to pay the costs of the notice of motion; the exhibits may be returned. CATCHWORDS : Unsuccessful sterilisation procedure - child born with cerebral palsy - delay - explanation for delay and prejudice. LEGISLATION CITED : Limitation Act 1969, ss60C, 60G CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122 Gail Theresa Taylor (First Plaintiff) Michael Garlick (Second Plaintiff) PARTIES : Central Coast Area Health Service (First Defendant) Dr T Fermanis (Second Defendant) Dr John Palmer (Third Defendant) FILE NUMBER(S) : SC 20322 of 2003 Mr L King SC, Mr A Cheshire & Mr K Oliver (Plaintiffs) COUNSEL : Mr S Woods (First & Third Defendants) Gray & Perkins (Plaintiffs) SOLICITORS : Frances Allpress (First & Third Defendants) LOWER COURT JURISDICTION : - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass 22 July 2005 20322 of 2003 Gail Theresa Taylor & Anor v Central Coast Area Health Service & Ors JUDGMENT 1 His Honour: The plaintiffs have been in a de facto relationship for about 25 years. They have been in poor financial circumstances. There are four children of the relationship. The third of them was born on 10 February 1995. 2 The first plaintiff became aware that she was pregnant in early 1996. The plaintiffs agreed to a termination of the pregnancy and the first plaintiff underwent a termination in March 1996. 3 In early 1997, the first plaintiff saw her general practitioner (Dr Fermanis). It had been decided that they did not want to have any more children. Dr Fermanis gave her a referral by letter to a clinic at Wyong Hospital. 4 On 1 April 1997, the first plaintiff attended Wyong Hospital. She saw a clerk and a doctor. An arrangement was made for the performance of a sterilisation procedure on 6 May 1997. 5 She underwent the procedure on 6 May 1997. It was performed by the third defendant. She left the hospital on the same day. About a week later she saw Dr Fermanis, who removed a stitch from her navel. 6 Arrangements may have been made for a follow-up appointment which the first plaintiff may not have kept. The nature of the appointment was not the subject of evidence. At best, it can be said that what happened in relation to any such matter presently remains unclear. 7 The first plaintiff continued to experience some bleeding from her vagina. On 11 September 1997, she gave birth to their fourth child (David). She gave the following evidence:- On the evening of Thursday 11th September 1997, however, I gave birth to David at home while going to the toilet. This was an extremely shocking and distressing experience. I went to the toilet and sat down. I had passed a very small amount of urine when I looked down and saw a miniature baby's head. I stood up and quite simply caught my son in my hands. I screamed for my mother-in-law, who came in and panicked. She screamed for her husband to call and ambulance, which was then done. When I sat down again on the toilet, I ruptured the placenta and this caused a massive amount of blood loss. It went all over the bathroom and caused a very gruesome scene indeed. [Affidavit Gail Theresa Taylor sworn 25 October 2004, paragraph 11] 8 The second plaintiff has said that he was shocked and very angry when he became aware of the birth. He had an awareness that a mistake may have been made. 9 David proved to be a difficult child. His care has been an exhausting and time consuming process. In about November 1998, David was diagnosed as having cerebral palsy. 10 The first plaintiff decided to have a hysterectomy. She was referred to Dr Docker. She saw him in April 1999. Subsequently, she underwent the hysterectomy. 11 It was after seeing Dr Docker that she became aware that she was pregnant at the time of the tubal ligation procedure. She became aware that a mistake may have been made in relation to that procedure and she concedes that she was possibly aware that she could seek legal advice. However, she maintains that she didn't know who to see and that she and her partner didn't have the money to pursue legal action. She said in evidence that a decision was made at that time not to pursue a legal claim. The second plaintiff was not of the view that any such decision had been made. 12 Following contact with relations or acquaintances in late 2001, the first plaintiff came to speak to Vanessa Tate, who suggested that the plaintiffs should contact Peter Hodges of Gray & Perkins. Mr Hodges was contacted. He was seen and was given instructions to pursue a claim on behalf of both plaintiffs and David. 13 What has happened thereafter is deposed to in an affidavit sworn by Timothy Crumpton on 16 November 2004 (inter alia, it annexes a chronology). 14 Proceedings were commenced by statement of claim filed on 18 November 2003. Originally there were three defendants. The claim against the second defendant (Dr Fermanis) has been disposed of. The proceedings allege negligence and claim on behalf of both plaintiffs, inter alia, damages for nervous shock and the costs of rearing David. 15 As the relevant limitation period had expired prior to the commencement of proceedings, a notice of motion was filed on 31 August 2004. It sought an extension of that period pursuant to either s60C or s60G of the Limitation Act 1969 (the Act). A contested hearing of that application took place on 19 July 2005. 16 Each of the plaintiffs has sworn an affidavit. The solicitor having the conduct of their matter (Mr Crumpton) has also sworn an affidavit. The plaintiffs have put into evidence certain medical reports (including reports from Drs Lyneham and Gertler and Mr Clements). Both plaintiffs were cross-examined. 17 The proceedings are defended by the first and third defendants. The first defendant is the body responsible for the Wyong Hospital. The third defendant is the doctor who carried out the sterilisation procedure. 18 These defendants rely on an affidavit sworn by Robyn Maree Simpson on 27 June 2005. It annexes, inter alia, certain medical reports (including reports from Dr Lee). It also contains the following:- I am informed by Dr Roger Hooper, Acting Director of Medical Services, Northern Sydney and Central Coast Area Health Service and believe that the Pathology Department of the Wyong Hospital has no records of any blood results for Gail Taylor on 1 April 1997 nor any time up to the procedure on 6 May 1997. [Paragraph 5] 19 For the purposes of the determining of this application, it suffices to look at the provisions of s60C of the Act. Pursuant to that provision, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action propounded by the plaintiffs be extended for a period not exceeding five years. Section 60E of the Act provides that, in exercising the powers conferred on it by s60C, the court is to have regard to all the relevant circumstances of the case (including, to the extent that they are relevant, the circumstances enumerated therein). The onus of demonstrating an entitlement to relief is borne by the plaintiff. 20 It is not said by the defendants that the plaintiffs do not have an arguable cause of action. There is credible material that gives support to the cause of action. 21 The claims for nervous shock may not be large ones. The claim for the costs of rearing David may be. 22 The thrust of the opposition lies in the areas of delay, explanation for delay and prejudice. It is said that a fair trial cannot now take place. 23 The delay is significant. Whilst the plaintiffs could have pressed their claims with greater urgency, they have put forward material which does explain the delay. The explanations were not subjected to serious challenge during cross-examination. 24 The defendants argue that there is both presumptive and actual prejudice. It is not in dispute that there may be presumptive prejudice. The area of contest is whether or not there has been any real actual prejudice. 25 The parties have provided submissions in writing. These submissions have been supplemented by oral argument. 26 In its submissions, the defendants have identified what they argue as being four distinct areas of actual prejudice. These are said to be the areas of breach of duty, contributory negligence, the potential claim for contribution against the second defendant and the quantification of the nervous shock claim. Further, it is said that particular actual prejudice arises in at least eight specific areas. 27 It is unnecessary to identify and specifically address each of those areas. I will expressly mention some of them. 28 Certain of them concern the second defendant (inter alia, the letter of referral the second defendant gave to the Wyong Hospital cannot be found and his unsatisfactory record keeping has left documentation which is, in many respects, inconsistent and inaccurate). 29 The statement of claim alleges that on 1 April 1997, a staff member obtained a blood sample from the first plaintiff. It appears that the results of any blood test in relation to that sample are no longer available. 30 There is the difficulty had by one of the experts qualified by the defendants (Dr Lee) in providing an opinion as to the psychiatric state of both plaintiffs. 31 The evidence does not support a view that any loss of the letter of referral may be of significance. 32 The records of the second defendant remain available. Inadequacies in the records may cause problems for all parties. If they do, they will largely arise from causes other than delay. 33 Whilst any blood sample taken may be no longer available, it is not a matter that the plaintiffs propose to rely on in the proceedings. 34 The plaintiffs did not see a psychiatrist prior to 11 October 2004. In that month, both of them saw Dr Gertler. He was given a history and was able to give a diagnosis in respect of both plaintiffs. Dr Lee came to see both plaintiffs in October 2004. Again, he was able to give a diagnosis of both based on the history given to him. 35 In subsequent reports, Dr Lee did place a caveat on his earlier views. In expressing that caveat, he said he was hampered by the lack of contemporaneous material and observed that individual's memory of events can change over time. 36 It would not be disputed that it would be a more difficult task to provide an opinion after the delay that has taken place. Despite that difficulty, both psychiatrists have been able to provide an opinion. Dr Lee puts it no higher than being "hampered". 37 An additional matter raised by the defendants is that they may not be able to properly test the case advanced against them by way of cross-examination. I am not satisfied that this is the case. 38 It is said that aspects of the case may be based almost entirely and exclusively upon the uncorroborated evidence of the first plaintiff and that she suffers from a lack of recollection in certain areas (an example was said to be in the area of post-operative instructions). 39 It seems to me that the giving of competing or inconsistent evidence by the first plaintiff, or her lack of recollection, has the potential to create more problems for the presentation of the case for the plaintiffs, rather than prejudice the defendants. 40 There is now abundant authority to the effect that in deciding whether or not it is just and reasonable to make an order the court should look to the question of whether a fair trial can still be had. The authorities emphasise that fairness is a matter of degree and that the concept of a fair trial is a relative one. It does not mean a perfect trial (see inter alia McLean v Sydney Water Corporation [2001] NSWCA 122). In the circumstances of this case I am not of the view that a fair trial is now unlikely. 41 In the circumstances of this case, I am satisfied that the plaintiff has discharged the requisite onus of proof. Accordingly, I have reached the decision that it is just and reasonable to make the order sought and that such an order should be made in this case. 42 I extend the limitation period for the cause of action pleaded in the statement of claim up to and including 18 November 2003. The plaintiffs are to pay the costs of the notice of motion. The exhibits may be returned. ********** 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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