The Supreme Court of NSW dismissed a medical negligence claim commenced by the plaintiff, in which she sought damages arising from spinal fusion surgery performed on her more than two decades earlier.
The Court concluded that an extension of time was not 'just and reasonable', given the prejudice caused to the defendant by the lengthy delay, and that, in any event, neither breach of duty nor causation were established.
In issue
This case raised two central questions for the Court to consider:
- In the event that the Court determined the plaintiff’s causes of action were time barred, was it just and reasonable for the limitation period to be extended pursuant to section 60G of the Limitation Act 1969 (NSW) (Limitation Act)?
- If an extension was granted, could the plaintiff establish that the defendant surgeon was negligent in recommending and performing a spinal fusion procedure, and that his alleged negligence was causative of her current disabilities? This question necessarily engaged the provisions of the Civil Liability Act 2002 (NSW) (CLA), including section 5O’s Standard of Care for Professionals.
The background
The plaintiff, Ms Erin Briggs, began experiencing significant lower back pain as a teenager. In early 1999 she was referred to the defendant, Dr Terence Hillier, orthopaedic surgeon, who recommended a posterolateral fusion at her lumbosacral joint. The defendant performed the surgery in March 1999 when the plaintiff was 14 years old. While she initially recovered well, returning to sport and resuming normal activities, she later developed recurrent back symptoms that persisted into adulthood. Two decades later, in early 2019, the plaintiff returned to the defendant with lower back and left leg symptoms.
The claim
The plaintiff alleged that the surgery performed by the defendant in 1999 had been unnecessary, the risks involved were inadequately explained and the surgery was improperly performed. In December 2020, she commenced proceedings alleging negligence of the defendant in advice, treatment and performance of the surgery.
In response, the defendant submitted that the plaintiff’s claim was statute barred. In doing so, the defendant relied on section 18A(2) of the Limitation Act under which, for causes of action arising prior to 6 December 2002, the applicable limitations period is three years which in this case commenced running from the plaintiff’s 18th birthday.
To address the limitations issue, the plaintiff submitted that she first became aware that the surgery 'was likely to give rise to a cause of action' when she responded to an advertisement from the plaintiff’s solicitor on 3 September 2019, and she did not become aware that a cause of action arising out of the surgery 'existed' until receiving an expert report from Dr Alan Hopcroft, orthopaedic surgeon, which was obtained on 27 April 2020. Alternatively, in the event the Court found that the plaintiff’s claim was statute barred, the plaintiff claimed to be entitled to an extension of time pursuant to section 60G of the Limitation Act (applicable to personal injury cases involving causes of action accruing prior to 2002).
As to the merits of the substantive claim, the defendant denied that he had breached his duty of care to the plaintiff, submitting that the treatment provided was widely accepted in Australia by peer professional opinion as competent professional practice as per section 5O of the CLA. Although the treatment pre-dated the introduction of the CLA in 2002, relevant provisions have retrospective application.
The decision at trial
Justice Weinstein found in favour of the defendant and ordered the plaintiff to pay the defendant’s costs on an ordinary basis.
In relation to the limitations issue, his Honour determined that the plaintiff’s claim had expired and the only way that her claim could be maintained was if the Court exercised its discretion and extended the limitation period. Section 60G of the Limitation Act allows the Court to extend the limitation period for a cause of action where it is 'just and reasonable' to do so. His Honour accepted that both presumptive prejudice and actual prejudice had been suffered by the defendant, evident in both the unreliability of witnesses’ recollections given the passage of time and the lack of contemporaneous records. While his Honour accepted that the plaintiff was not a dishonest witness, her evidence was entirely unreliable due to an inability to recall events which occurred many years previously and amounted to reconstruction with a bias against the defendant. For these reasons, Weinstein J found that it would not be just or reasonable to order the limitation period to be extended.
Although his Honour’s decision was sufficient to dispose of the case, Weinstein J made findings on the substantive negligence action. His Honour concluded that the defendant was not negligent in his treatment and management of the plaintiff. The defendant’s decision to recommend the surgery as a treatment option and perform the surgery following a period of expectant management was within the range of peer professional practice. Ultimately, it was accepted that the defendant acted in a manner that, as at February and March 1999, was widely accepted in Australia by peer professional opinion as competent professional practice. Interestingly, his Honour found that despite the distinct specialties between the defendant and the defendant’s expert, neurosurgeon Professor Noel Dan, Professor Dan would be considered a ‘peer’ for the purposes of section 5O of the CLA – particularly given that both Professor Dan and the defendant performed spinal surgeries on similar patients in the 1990s.
As to causation, his Honour did not accept the plaintiff’s evidence that she had intervening episodes of lower back pain between the original 1999 surgery and 29 April 2018, given the absence of reports of symptoms in the contemporaneous records in the several years following the 1999 surgery which indicated damage to the left facet joints. Further, her return to competitive hockey after surgery indicated a degree of recovery which was inconsistent with her claim. Ultimately, he found the plaintiff’s symptomatology reflected the natural course of her condition that she had in 1999.
His Honour also found that section 5I of the CLA, which excludes liability for inherent risks, was not applicable on the basis that the experts all agreed that none of the relevant inherent risks of surgery, including haemorrhage, infection, death, neural damage and cerebrospinal fluid leak, had materialised in the plaintiff’s situation.
Implications for you
The case related to events which pre-dated and were not subject to the 'date of discoverability' limitations regime introduced into the Limitation Act in 2002. Under the discoverability regime it has been difficult for defendants to successfully defend personal injury actions on statute of limitations grounds. The statute of limitations aspect of the case may well have been decided differently had the post 2002 provisions been applicable. That said, this case highlights that, despite the general difficulty with limitations defences in personal injury actions, courts may be prepared to refuse to extend the limitation period where there is clear evidence that the passage of time has undermined the prospect of a fair hearing. This is particularly where there is incomplete documentary evidence and the court would have to rely upon the limited independent recollection of witnesses who have reconstructed events with the benefit of hindsight.
The case also serves as a reminder to medical practitioners as to the importance of making comprehensive contemporaneous medical records, which become crucial when claims arise years later, and memories have faded.
Furthermore, the judgment demonstrates that for the purposes of section 5O of the CLA, the court may regard an expert from a different specialty as a relevant ‘peer’ in assessing whether a practitioner’s conduct is in accordance with competent professional practice at the relevant time.
