New South Wales Supreme Court CITATION : Sinclair v Craddock & Ors [2004] NSWSC 623 HEARING DATE(S) : 28 April & 9 July 2004 JUDGMENT DATE : 16 July 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : The plaintiff's notice of motion is dismissed. The plaintiff is to pay the costs of the notice of motion. CATCHWORDS : Extension of limitation period - validity of cause of action - delay and prejudice LEGISLATION CITED : Limitation Act 1969, s60C CASES CITED : Itek Graphics Pty Limited v Elliot (2002) 54 NSWLR 207 Christine Anne Sinclair (plaintiff) Dr Paul Craddock (first defendant) PARTIES : Dr John Dyce (second defendant) Mid Western Area Health Service (third defendant) Ian R McCallum, Dennis J McGrode & Paul R Hargreaves practicing as Palmers Solicitors (fourth defendant) FILE NUMBER(S) : SC 20124/03 Mr R O'Keefe (plaintiff) COUNSEL : Mr G Evans (first defendant) Mr S Davis (second defendant) N/a (fourth defendant) Savage Lawyers (plaintiff) SOLICITORS : David Ian Brown (first defendant) Frances Allpress (second and third defendants) N/a (fourth defendant) - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass 16 July 2004 20124/03 Christine Anne Sinclair v Dr Paul Craddock & Ors JUDGMENT 1 Master: The plaintiff was a patient of the first defendant. He delivered the plaintiff's first child (Tammilee) at Forbes District Hospital (the Hospital) on 16 January 1996. It was a painful delivery. It was long. It resulted in a forceps delivery. The plaintiff said that after the birth she was told by the first defendant words to the following effect:- "If you have another baby we won't put you through that again." 2 By April 1997, she was pregnant again. During the first part of this second pregnancy, she consulted the second defendant. She informed him, that the first defendant had said that she should have her next baby by caesarean. She says that he replied to the effect that he did not see any reason to treat this other than a normal pregnancy. 3 She said that she returned to the first defendant because she wanted a caesarean. She contends that he reassured her that the delivery would be by caesarean section. 4 The second defendant resumed the management of her care on 12 November 1997. This took place because the first defendant was going on holidays and may have been absent at the time of the anticipated birth. 5 During November 1997 and prior to the birth, she had a consultation with the second defendant. Nothing was said by her during that consultation concerning whether the birth would be natural or by caesarean section. Her evidence was that she didn't see a need to do so. 6 She was admitted to the Hospital (the third defendant) and labour was induced. The second defendant delivered her son (Hayden). The delivery was not by caesarean section. Hayden was a very large child (microsomic weighing 4.7kg) and suffered a Brachial Plexus injury resulting in shoulder dystocia. The plaintiff describes the birth as being very traumatic and extremely painful. 7 She has a work history. It is set forth in one of her affidavits. It covers the period from 1995 up to the present time. 8 In 1998, she made an appointment to see a solicitor (Mr Hargreaves). She wrote him a letter dated 1 September 1998 (a copy of that letter is an annexure to one of her affidavits). She saw Mr Hargreaves on 4 September 1998. She was then seeking advice about suing the first defendant. She had a second consultation with Mr Hargreaves at some time during 1999. The limitation period expired on 25 November 2000. She had a further consultation with Mr Hargreaves on 22 December 2000. She presents as having become dissatisfied with Mr Hargreaves. She consulted her present solicitor (Mr Savage) on 19 November 2001. 9 Her evidence is that she saw Mr Hargreaves in respect of a claim by Hayden only. This material stands in conflict with the claim she makes against the fourth defendant and other evidence. She says that she did not receive any advice concerning her claim and any limitation period relating to it. 10 In August 2003, proceedings were brought on behalf of Hayden against the three defendants. In October 2003, she commenced proceedings on her own behalf against four defendants. The fourth defendant comprises the partners of the firm of which Mr Hargreaves was a member. 11 On 5 November 2003, she filed a notice of motion seeking an extension of time under the Limitation Act 1969 (the Act). Relief is sought pursuant to s60C of the Act. Under the section, the court, may, if it decides that it is just and reasonable to do so, order that the limitation period be extended. Section 60E of the Act provides that in exercising the powers conferred on it by s60C, the court is to have regard to all of the circumstances of the case (including the matters set forth in s60E itself). The plaintiff bears the onus of demonstrating an entitlement to relief under s60C. 12 The application was heard on 28 April 2004. Relief is sought only against the first three defendants. Each of these defendants has opposed the application. 13 In support of the application the plaintiff has sworn two affidavits. She has been cross-examined at considerable length. She also relies on affidavit material sworn by Mr Savage. The defendants have not relied on any affidavits. 14 Her credibility has been put in issue. In the present application (although, it may be significant at any trial), this issue can be put aside. It suffices to say that on her own versions of conversations, she has difficulties of recall. 15 Prior to seeing Mr Hargreaves, she was aware that she could go and see a lawyer about legal liability and financial recompense in relation to both herself and her son. A the time of seeing him she had connected both her physical and psychological complaints with the birthing process. There is evidence from the plaintiff that prior to seeing Mr Hargreaves she had put off suing the doctors because it was her view that the second defendant had saved Hayden's life. Upon seeing Mr Hargreaves, she received advice that the second defendant may be liable. At the time of the first consultation, she was unwilling to bring proceedings against the second defendant. She says that at first she was confused and then after thinking about the matter came to the view that she should sue the second defendant. She says that this was communicated to Mr Hargreaves during the second consultation. 16 The defendants look to a variety of matters in their opposition to the application. A principal matter is the viability of the causes of action alleged by her. The causes of action are founded on negligence (the particulars of breach of duty are set forth in paragraphs 16, 17 and 18 of her ordinary statement of claim. The injuries are said to be both physical and psychological. 17 The principal complaints made have been summarised as being a failure by the first defendant to record and communicate material (including that relating to a caesarean section) and a failure by the second defendant to have tests done (including an obstetric ultrasound within the last week or two of the pregnancy). 18 The physical injuries are not presented as being of significance (the plaintiff relies inter alia on a report from Dr Vaughan). At least largely, they had resolved within months. 19 The psychological problems are said to be the major injury. Even so, it is not said that they were productive of large damages. 20 If the plaintiff did suffer physical injury as alleged, there are real issues as to causation. The medical evidence gives little support for these claims. 21 The evidence relied on as supporting the claim of psychiatric disorder is largely to be found in a report from a psychologist. She is lacking in medical qualification. She said no more than that the plaintiff has suffered from many of the symptoms in the DSM – IV for post traumatic stress disorder. 22 Apart from this report, there is inter alia evidence of what she was told by a general practitioner in 2003 and some comment contained in a report from Dr Vaughan (a gynaecologist). 23 Save for this material, evidence demonstrating a causal relationship is parsimonious. She did obtain a report from a psychiatrist but it has not been served. There is evidence of suffering post natal depression. She appeared to get better after the taking of medication. If she does continue to have psychological problems, it may be that they flow from other causes (such as difficulties with her daughter, the death of her grandmother and other unrelated procedures). 24 The evidence relied on in support of alleged liability is to be found mainly in a report from Dr Lyneham. A close reading of this report and the other material throws up little evidence to support the allegations of liability. 25 In considering her claims against the first defendant it needs to be appreciated that it is the plaintiff's case that she had passed on to the second defendant what the first defendant had allegedly said to her about a caesarean section and that she gave the second defendant a detailed history of her first labour. 26 Dr Lyneham was of the view that there were no real difficulties in delivering the first baby and that there were no clinical indications that the second baby was very big. He did not believe that there were any indications to perform a caesarean section once labour was established. In general, he thought that the management of the second labour was consistent with proper professional standards. 27 On the question of an ultrasound, he said no more than that it would have been reasonable and consistent with proper professional standards to have one in the last week or two of the pregnancy. Further, he said no more than that it would have shown an infant weighing over 4,000g and that this may have influenced any decision concerning the method of delivery. 28 The defendants say that her claims are hopeless. There is force in that submission. However, for present purposes, it suffices to say that on the material placed before the court in this application, at best there are very slender prospects of success against any of the three defendants. 29 If regard were to be merely had to the circumstances already mentioned, it seems to me that it would not be just and reasonable to put the defendants to the risk of a long and expensive trial. 30 There are other matters which mitigate against an extension of the limitation period. These include the matters of delay, explanation for that delay and prejudice. 31 The plaintiff advances various matters as explaining delay (inter alia they concern her advisers, her decisions, her health and her focus on getting proper treatment for her son). 32 The delay is significant. The narrative contains periods of inactivity. What is offered in explanation for delay is less than adequate. Although there is no evidence of actual prejudice, there has to be presumptive prejudice. A fair trial of some aspects of her claim may now be difficult. 33 Submissions have been made as to the effect of what has been said in Itek Graphics Pty Limited v Elliott (2002) 54 NSWLR 207 on decisions made by the plaintiff prior to the bringing of this application. In the light of what has been earlier said, it is unnecessary to pursue these matters. 34 The plaintiff bears the onus of demonstrating an entitlement to relief under the Act. In my view, she has failed to discharge that onus. I am not satisfied that it would be just and reasonable to order that the limitation period be extended. 35 The plaintiff's notice of motion is dismissed. The plaintiff is to pay the costs of the notice of motion. Last Modified: 07/26/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.