NSW Supreme Court examines statute of limitations based on 'date of discoverability' and extends the 12 year long-stop limitation period with respect to allegedly negligent surgery performed 14 years before proceedings commenced.
In issue
- The Supreme Court considered whether, in circumstances where the plaintiff sued the defendant in 2020 for medical negligence alleged to have occurred in 2006 and 2010, the claim was commenced within the 3 year post-discoverability limitation period and if it was just and reasonable to extend the 12 year long-stop limitation period.
The background
In 2020 the plaintiff commenced proceedings against the defendant medical practitioner alleging negligence in the advice and performance of two orthopaedic operations.
The first operation, a lumbar disc replacement, was recommended by the defendant after the plaintiff suffered an injury to his back while working as an airport baggage handler. The plaintiff underwent the first surgery in March 2006 when he was 22 years of age. In May 2010, the plaintiff underwent the second surgery, a spinal fusion, after he further injured his back on a water slide and was informed that his disc replacement had failed. The plaintiff alleged that he continued to suffer spinal problems, including pain.
In 2018 the plaintiff consulted with another orthopaedic surgeon, Dr Bryant, who informed him that 'disc replacements usually fail'.
In August 2019, the plaintiff responded to a Facebook advertisement from a law firm stating that they wished to interview any person who had suffered an adverse event from back surgery carried out in the local area between 2000 and 2019.
Proceedings were commenced by the plaintiff in 2020 regarding his 2006 surgery.
In New South Wales, the Limitation Act 1969 (NSW) (the Act) provides that a cause of action in personal injury is not maintainable if brought after a period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff (3 year post discoverability limitation period) or 12 years running from the time of the act or omission alleged to have resulted in the injury (12 year long-stop limitation period).
In June 2024, the plaintiff filed a notice of motion seeking orders to extend the 12 year long-stop limitation period in accordance with sections 62A and 62B of the Act. Section 62 provides that the court may order an extension if it is just and reasonable to do so, but is precluded from extending beyond the period of 3 years after the date of discoverability.
On 21 and 22 August 2024, an interlocutory hearing was held before Cavanagh J.
The decision at trial
Discoverability
The court’s decision concentrated on the plaintiff’s 2006 surgery.
The plaintiff submitted that the date of discoverability for the 2006 surgery was 1 June 2020, being the date on which he became aware of the contents of his expert liability report. This report included the opinion that the plaintiff’s injury had occurred, that the injury was caused by the fault of the defendant, and the injury was sufficiently serious to justify the bringing of an action (the three facts).
In response, the defendant submitted that the plaintiff ought to have made reasonable enquiries after he failed to obtain the expected relief following his 2006 surgery and if he had done so, he would have found out that his ongoing back pain was caused by the fault of the defendant (although without accepting liability in that respect).
The court did not accept the defendant’s approach. In Cavanagh J’s view, it was not reasonable to expect that the plaintiff ought to have obtained a second medical opinion or legal advice about the 2006 surgery within 6 to 12 months of it occurring. He was not satisfied that the plaintiff ought to have known that his ongoing back symptoms were caused by the fault of the defendant at that time.
His Honour accepted that the plaintiff did not know his injuries were caused by the fault of the defendant until 2020. However, he considered that, acting reasonably, the plaintiff ought to have become aware of possible fault on the part of the defendant following his conversation with Dr Bryant in 2018. Allowing a further 6 months to obtain the necessary advice/knowledge meant that the date of discoverability was 14 May 2019.
Therefore, the plaintiff commenced proceedings in respect of the 2006 surgery in 2020 within 3 years of the date of discoverability, but after the expiry of the long-stop limitation period.
12 year long-stop
The defendant submitted that he would suffer substantial prejudice if an extension was granted because he no longer had his handwritten notes and therefore was unable to refer to those notes when responding to the plaintiff’s assertions as to what advice might have been given and what might have been said. However, the court observed that the defendant still had access to his reporting letters, operation reports and original imaging. Further, the defendant was still alive and able to give instructions.
Ultimately, Cavanagh J was satisfised that the defendant was in a good position to defend the matter on the material available and determined that it would be just and reasonable to extend the 12 year long-stop limitation period to the date on which the plaintiff commenced the proceedings.
However, the court held that the cause of action relating to the plaintiff’s 2010 surgery was statute barred on the basis that it was only pleaded by way of amendment in 2023 and therefore fell outside of the expiry of the May 2022 date of discoverability.
Implications for you
The operation of the post-discovery limitation period depends not just on a subjective assessment of what the plaintiff knew, but also requires an objective assessment of what he or she ought to have known if he or she had acted reasonably, having regard to the plaintiff’s own circumstances. However, it will not be sufficient to assert that just because a plaintiff has an unsuccessful medical outcome, they ought to have known (or made enquiries to discover) that it was due to the fault of the treating medical practitioner.
The fact that a defendant no longer has access to original records may not be sufficient to establish prejudice when the court considers extending the long-stop period. The court will consider other sources of information and the availability of the defendant practitioner to give instructions.
More generally, the case again highlights the difficulty of defendants establishing limitations defences under the NSW date of discoverability regime. The regime was introduced as part of the tort reforms of 2002. Ironically, however, the regime has generally been of assistance to plaintiffs in allowing them to bring cases which would, at least on their face, have been long since time-barred under the previous limitations provisions.
