‘Discovering’ who caused the injury 11 years on and whether it is sufficiently serious to justify the bringing of an action

The Court granted the plaintiff an extension of time to bring legal proceedings against the defendants after she was advised by an expert medical practitioner of the ‘fault’ that caused the injury 11 years after the cause of action occurred.

In Issue

• Whether, having regard to section 27F of the Limitation of Actions Act 1958 (VIC), the plaintiffs’ claims against the defendants were ‘discovered’ within the 3- year limitation period before proceedings were commenced, notwithstanding the cause of action occurred 11 years earlier. If not, whether an extension of the limitation period should be granted in the circumstances.

The background

The first and second plaintiffs are the mother and father of a son, Corey, born at Wodonga Hospital on 26 September 2007. The defendants were various medical practitioners, radiologists and genetic screening service clinics who had provided antenatal care to the first plaintiff during her pregnancy.

A 12-week ultrasound revealed a 'nuchal translucency (NT) measurement of 11 millimetres'¹. There was evidence at the trial that a measurement of 11 millimetres is a ‘significantly increased and abnormal’ finding. However, a later report prepared on the results of the ultrasound incorrectly noted that the NT measurement was 1.1 millimetres, which is not considered abnormal, instead of 11 millimetres, as found by the ultrasound.

A 20-week obstetric ultrasound was conducted where the radiologist reported that there were no obvious structural abnormalities identified with the unborn baby.

When Corey was born, he had significant cardiac and other abnormalities. The nature of these were revealed over time and he was later diagnosed with cardiac and neurodevelopment disabilities.

Only after seeking appropriate legal advice and obtaining an expert opinion in September 2018 which identified the early abnormal NT measurement, the first plaintiff (mother) commenced proceedings against a number of medical practitioners, including the radiologists, the geriatric services clinic and their general practitioner, alleging that the failure to identify an abnormal NT measurement, did not allow the plaintiffs to terminate the pregnancy. Later in March 2020, the second plaintiff (father) was joined to the proceeding.

The defendants raised certain limitation defences noting that the plaintiffs brought proceedings 11 years after the alleged cause of action occurred.

The plaintiffs filed an application seeking a declaration by the Court as to when their cause of action was ‘discoverable’, having regard to section 27F of the Limitation of Actions Act 1958 (VIC) (Act), which provides that a cause of action is ‘discoverable’ on the date the plaintiffs knew or ought to have known the personal injury was:

• caused by the fault of the defendants; and
• sufficiently serious to justify the bringing of an action.²

In the alternative, the plaintiffs sought an extension of the relevant limitation period.

All parties argued the plaintiffs’ cause of action was discoverable on different dates. The onus of discoverability rested upon the defendants.

The decision at trial

The Court found that, based on the available evidence, the facts comprising ‘discoverability’ of ‘fault’ of the defendants, and whether the injury was ‘sufficiently serious to justify bringing an action on the cause of action’, were not known by the first plaintiff until after late August 2018 when she had obtained appropriate legal advice and an opinion from an expert medical practitioner which revealed the defendants’ failure to identify the early abnormal NT measurement.

The Court concluded that the first plaintiff’s claims against the defendants were all brought within time, noting that the first plaintiff had a reasonable explanation for the delay of proceedings due to the complexity of Corey’s circumstances relating to his unfolding medical conditions; and also, it was just and reasonable to grant extensions of time for the first plaintiff to pursue the claims against the defendants.

However, the Court found that the issue of discoverability did not arise against the second plaintiff directly. The second plaintiff did not swear any affidavit in support of his application for an extension of time. The Court held the second plaintiff had no direct explanation for the reason for delaying his proceeding and dismissed his application for an extension of time.

Implications for you

This case emphasises that notwithstanding a lengthy delay between alleged negligent conduct and the commencement of proceedings, a court may, in appropriate circumstances, find that the connection between the alleged negligence and the injury suffered was not known or discoverable in the required sense, such that the limitation period did not commence to run, and proceedings are in fact brought within time despite a lengthy passage of time.

Moore v Escott & Ors [2022] VSC 353