Newman v State of Queensland[2009] QSC 125

SUPREME COURT OF QUEENSLAND

[1] P LYONS J: In 2005, Mr Newman was injured when he was assaulted at a hotel in Moree, New South Wales.  He was initially treated at the Moree District Hospital.  He was subsequently treated at the Princess Alexander Hospital (PA Hospital) in March and April 2005.  He now wishes to extend the time for commencing proceedings against the PA Hospital, under s 31 of the Limitations of Actions Act 1974 (Qld) (Limitation Act).  The questions for consideration are whether the conditions, which must be satisfied before relief is available under that section, are satisfied, and if they are, whether or not the discretion should be exercised in Mr Newman’s favour.

History

[2] The assault on Mr Newman occurred on 20 February 2005 at the Royal Hotel, Moree.  After the assault, he was taken by ambulance to the Moree Hospital.  He remained there as an in-patient until 3 March 2005. 

[3] He was readmitted to the Moree Hospital on 7 March 2005 for treatment of post-surgical wound infection.  He was discharged on 25 March 2005, and was then taken by a relative to the PA Hospital for further treatment of his wound infection, being admitted on 26 March 2005.  While there, he was under the care of the Plastics Department, his treatment being supervised by Dr Bayley, a plastics and reconstructive surgeon.

[4] On 2 April 2005, a gracilis flap procedure was carried out on Mr Newman by Dr Belt, also a plastic and reconstructive surgeon in the Plastics Department in the PA Hospital.  He was discharged on 26 April 2005, and conveyed by ambulance to the Moree Hospital for further treatment.  Further surgery was performed at the Moree Hospital on 5 May 2005. 

[5] Mr Newman received further treatment at the PA Hospital and the Moree Hospital in 2005 and 2006.

[6] On about 9 August 2006, after a suggestion from his mother, Mr Newman consulted solicitors in New South Wales regarding a potential claim for Victims Compensation as a result of the assault.  He informed the solicitors that a specialist in Brisbane had suggested that the Moree Hospital may not have handled the infection to his wound properly.

[7] On 20 March 2007, Mr Newman instructed those solicitors to continue with the claim for Victims Compensation, and to investigate and advise upon potential claims against the Royal Hotel and the Moree Hospital.  He subsequently received advice, as a result of which he instructed his solicitors not to proceed with the claim against the Royal Hotel.

[8] On 11 March 2008, Mr Newman instructed his New South Wales solicitors to commence proceedings against the Moree Hospital.

[9] Between March 2007 and March 2008, the New South Wales solicitors took a number of steps relating to Mr Newman’s potential claims.[1]  They included seeking advice from Counsel in March 2008 about a potential claim against the Moree Hospital.

[10] On 12 March 2008, Mr Newman confirmed with his solicitors that proceedings would be commenced against the Moree Hospital; and that expert opinion would be obtained on the treatment of Mr Newman at both the Moree Hospital and the PA Hospital.  The New South Wales solicitor then acting for Mr Newman, swears that the opinion was sought in relation to the PA Hospital, to exclude its having any role in Mr Newman’s condition, and to confirm that his condition was solely as a result of inappropriate treatment at the Moree Hospital.  The solicitor was not cross-examined in these proceedings.

[11] On 20 March 2008, a Statement of Claim was filed in the New South Wales Supreme Court against the Hunter New England Area Health Service, in relation to Mr Newman’s treatment by the Moree Hospital.  Arrangements were then made for a report to be obtained from Dr Lindstrom, a physician specialising in infectious diseases.  Material was forwarded to Dr Lindstrom in early May 2008. 

[12] Following advice given by Counsel on 15 May 2008, on 16 May 2008 the New South Wales solicitors wrote to the PA Hospital stating that until 15 May 2008, they had been of the opinion that Mr Newman’s claim was primarily against the Moree Hospital; but that further investigations had revealed that his treatment at the PA Hospital was deficient; and that it was intended to pursue a claim against the PA Hospital for medical negligence.  On the same day, the New South Wales solicitors wrote to Dr Lindstrom setting out a series of questions relating to the treatment of Mr Newman at both hospitals.

[13] On 19 May 2008, Dr Lindstrom provided a report which was critical of the treatment of Mr Newman at both hospitals.  In particular, with respect to the PA Hospital, he considered that a review of Mr Newman should have been carried out by an orthopaedic surgeon prior to the surgery on 2 April 2005.  He also considered that an infectious diseases physician should have been involved at the time of Mr Newman’s admission to the PA Hospital on 26 March 2005, whereas that did not occur until 18 days after the surgery.  There was delay in giving appropriate antibiotic therapy, and an infection which formed under the flap should have been addressed by consulting an orthopaedic surgeon.  He also referred to later delay in carrying out surgery in relation to the infection, but otherwise he was not critical of subsequent treatment of Mr Newman at the PA Hospital.

[14] On about 13 June 2008, the New South Wales solicitors informed Mr Newman of Dr Lindstrom’s views about his treatment at the PA Hospital.  Mr Newman has sworn that prior to then, he was not aware that there was any potential claim in negligence against that hospital, nor did he think that the treatment he received at that hospital was “anything other then reasonable”.  He also swore that, until he learnt of Dr Lindstrom’s opinion, he assumed that his condition was solely as a result of the treatment received at the Moree Hospital.  As soon as he learnt of Dr Lindstrom’s opinion, he instructed his New South Wales solicitor to take proceedings against the PA Hospital.

[15] In June 2008, the New South Wales solicitors consulted Queensland solicitors about making a claim against the PA Hospital.  On 19 June 2008, Mr Newman’s Notice of Claim, Initial Notice and Dr Lindstrom’s report were served on Crown Law.  On 18 June 2008 and again on 7 October 2008 the New South Wales solicitors were advised by the solicitors for the PA Hospital that it would be necessary to make an application under s 31 of the Limitation Act, if the claim were to proceed.  Mr Newman’s Originating Application was filed on 15 April 2009.

Availability of Relief

[16] Under s 31 of the Limitation Act, the court may order that the period of limitation for an action be extended so as to expire at the end of one year after the date on which a material fact of a decisive character relating to the right of action came to be within the means of knowledge of the potential claimant. However, before the court may extend the limitation period, it must be satisfied of the following:

(a) The material fact of a decisive character relating to the right of action was not within the means of knowledge of the potential claimant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) There is evidence to establish the right of action apart from a defence found on the expiry of the relevant period of limitation.

[17] Dr Lindstrom’s report suggests that Mr Newman’s claim against the PA Hospital arises from the fact that the gracilis flap procedure was carried out without appropriate orthopaedic surgeon review.  The cause of action arose on about the beginning of April 2005, and the limitation period expired about the beginning of April 2008.

[18] Section 30 of the Limitation Act identifies material facts relating to a right of action as including the fact of the occurrence of negligence on which the right of action is founded; and the fact that the negligence caused personal injury.

[19] The section further provides that a material fact relating to a right of action is of a decisive character if, but only if, a reasonable person knowing that fact and having taken the appropriate advice on that fact, would regard that fact as showing that an action would have reasonable prospects of success, and of resulting in an award of damages sufficient to justify the bringing of the action; and that the person, in that person’s own interests and taking into account that person’s circumstances, ought to bring the action.

[20] Section 30(1)(c) is as follows: 

“a fact is not within the means of knowledge of a person at a particular time if, but only if-

(i) the person does not know the fact at that time; and

(ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.”

[21] It is common ground that the opinion of Dr Lindstrom is a material fact for the purposes of s 30 (1) of the Limitation Act.[2]  It is not suggested that this fact is not of a decisive character.  Nor is there any contest that, as a result of Dr Lindstrom’s report, there is evidence to establish Mr Newman’s right of action against the PA Hospital, apart from a defence founded on the expiry of the limitation period.

[22] The real issue relating to the availability of relief is whether the opinion of Dr Lindstrom (or a similar opinion) was within the means of knowledge of Mr Newman before the date which is 12 months prior to the commencement of the limitation period.

[23] The submissions for the respondent seek to suggest that the New South Wales solicitors obtained medical advice relating to Mr Newman’s condition and treatment prior to the filing of the Statement of Claim on 20 March 2008.  Ms McCabe provides a detailed account of the steps taken on behalf of Mr Newman in 2007 and the first half of 2008.  She was not cross-examined for the purpose of suggesting that her account was incomplete.  The circumstances in which Dr Lindstrom’s report were obtained make it unlikely that a medical report had been obtained previously in relation to the causes of Mr Newman’s condition.  The respondent relies upon the requirements of the New South Wales Uniform Civil Procedure Rules 2005 to provide an expert’s report with a Statement of Claim alleging negligence by a professional; and on the fact that the allegations in the Statement of Claim would otherwise have been made without a proper basis.  However, the Statement of Claim was issued in New South Wales at time when there was concern about the limitation period applicable to the claim against Moree Hospital.

[24] I do not accept that a medical report had been obtained on behalf of Mr Newman prior to the May 2008 report of Dr Lindstrom, which suggested any negligence on the part of the PA Hospital.

[25] It is also submitted that if Dr Lindstrom had been approached earlier, then in all probability the case against the PA Hospital would have emerged by the end of September 2007; and almost certainly prior to the filing of the Statement of Claim in the New South Wales Supreme Court in March 2008; and that accordingly the material fact was within Mr Newman’s knowledge at some earlier point in time. 

[26] This submission does not correctly address the issues raised by s 31(2)(a).  It proceeds on the basis of some obligation on the part of Mr Newman to have investigated at an earlier point in time the claim which he believed he might have against the Moree Hospital.

[27] However, the test stated in s 30(1)(c) of the Limitation Act is whether a material fact of a decisive character relating to the right of action for which the extension is granted was within the claimant’s means of knowledge at some earlier time. 

[28] It is clear that the “fact” was not known by Mr Newman early in April 2007, or indeed, prior to 13 June 2008.  By the test in s 30(1)(c)(i), the “fact” was not within his means of knowledge. 

[29] Under s 30(1)(c)(ii), however, a fact is not within a claimant’s means of knowledge, so far as the fact is able to be found out by the claimant, if the claimant has taken all reasonable steps to find out that fact.  This makes it necessary to focus attention on the relevant “fact”, and to consider whether the claimant should reasonably have taken steps at an earlier time to find out that fact. 

[30] As previously noted, it is not in issue that Dr Lindstrom’s opinion is a material fact of a decisive character relating to Mr Newman’s right of action against the PA Hospital.

[31] Mr Newman had reason to think that his condition was the consequence of negligence at the Moree Hospital.  He had no reason to think, prior to 13 June 2008 that his condition was the result of any negligence relating to his treatment at the PA Hospital. There was no reason for him to inquire whether his condition was the result of such negligence, prior to then.

[32] I note that in Macleod v Flight West Airlines Pty Ltd,[3] McPherson JA (with whom the other members of the Court agreed) cited with apparent approval the following statement from the learned primary Judge whose judgment was under appeal:

“It is clear that there is no requirement to take appropriate advice or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a plaintiff to have done so”.

[33] I also note that in Pikrt v Hagemeyer Brands Australia Pty Ltd,[4] the conduct of the applicant was judged by reference to what could be expected from the hypothetical reasonable person (no doubt taking into account the circumstances of the particular applicant).

[34] It is necessary to say something about Mr Newman’s background.  At the time of the assault, he was 35 years of age and had been working as a barman.  He left school a few weeks into Year Nine, having had a poor academic record.  Subsequently, he attended Tafe in Sydney where he studied Performing Arts.  He then worked on a farm for six months, and then as a trainee motor mechanic.  He started but did not complete a carpentry traineeship, due to family financial pressures.  Most of his working life has been as a bar attendant.  He lived (and still lives) in Moree.

[35] He had been having dealings with his Sydney solicitors since August 2006, contact having been initiated at his mother’s suggestion.  Until they received Dr Lindstrom’s opinion, the solicitors did not think that there was any basis for a claim against the PA Hospital.

[36] By reference to the tests referred to previously, and looking at the matter objectively with regard to Mr Newman’s background and circumstances,[5] it seems to me that there is no basis for saying that, prior to the receipt of Dr Lindstrom’s opinion, Mr Newman should have reasonably made inquiries about whether the PA Hospital was negligent in its treatment of him; or whether any negligence on its part contributed to his condition.

[37] Accordingly, in my view, a material fact of a decisive character relating to the right of action was not within Mr Newman’s means of knowledge prior to the receipt of Dr Lindstrom’s opinion.

[38] There is no suggestion that Mr Newman knew the relevant facts prior to 13 June 2008. 

[39] Mr Fitzpatrick of Counsel who appeared for the respondent has helpfully referred me to two appellate decisions in Queensland on whether the knowledge of a person’s solicitor is to be attributed to the person, when applying s 30(1)(d)(ii).  The first of those is Nielson v Peters Ship Repair Pty Ltd.[6]  In that case, the plaintiff’s solicitors were informed on 30 July 1980 of the potential liability of a previously unknown third party.  They were unable to contact the plaintiff to inform him of that fact until December 1980.  It was held that knowledge of the solicitors was not to be imputed to the plaintiff.[7]  That decision was applied in Randel v Brisbane City Council.[8]

[40] In my view, consistent with those decisions, knowledge of a material fact for the purposes of s 30(1)(c) is not to be imputed to Mr Newman on the day on which the fact became known to his solicitors.  The focus of paragraph (i) is on actual knowledge.  That is confirmed by paragraph (ii), which refers to the person finding out the material fact by taking all reasonable steps to find out that fact.  Typically, the test is applied by reference to inquiries which the person could, and should, have made, whether of the person’s solicitors or otherwise. 

[41] On 12 March 2008, Mr Newman had given instructions to obtain expert opinion on the treatment he had received at the Moree Hospital and the PA Hospital.  However, it is obvious that at that time he had reason to believe that negligent treatment at the Moree Hospital was the only potential basis for his claim: on 11 March 2008, having spoken to his solicitor, he gave instructions to commence proceedings against that hospital.  As previously noted, it was not until 13 June that he had any reason to think that there was a potential claim against the PA Hospital. 

[42] Ms McCabe deposes that shortly after receipt of Dr Lindstrom’s report of 19 May 2008, an unsuccessful attempt was made to contact Mr Newman.  There is, however, no suggestion in the evidence that anything occurred which would have meant that Mr Newman should reasonably have contacted his solicitors prior to 13 June 2008, in relation to the report sought from Dr Lindstrom.  Nor was any attempt made to cross-examine Mr Newman, with a view to suggesting that, acting reasonably, he should have made contact with his solicitors between 19 May 2008 and 13 June 2008.

[43] I therefore conclude that the material facts which emerged from Dr Lindstrom’s report did not come within the means of knowledge of Mr Newman, as identified in s 30(1)(c) of the Limitation Act, until 13 June 2008.

Discretion

[44] The respondent complains about the absence of a draft Statement of Claim, or a document setting out particulars of negligence, as well as details of the quantum of damages which Mr Newman might claim.  It seems to be suggested that both of these matters give rise to some prejudice which weighs against granting Mr Newman’s application.

[45] In the circumstances of this case, I do not see any real basis for alleging that the respondent is prejudiced by the absence of a pleading or particulars of negligence.  Since May 2008, the PA Hospital has been in possession of Dr Lindstrom’s report.  It enables the defendant to understand very well the likely nature of the claim proposed by Mr Newman.  That it does so is demonstrated by the evidence (to be referred to shortly) which it has adduced in opposition to the current application.  A pleading, or particulars of negligence, may assist in the legal characterisation of some aspects of the claim; but it seems to me that the respondent is better informed about the nature of the claim from Dr Lindstrom’s report than it would be from a pleading, or from particulars of negligence.  I therefore do not consider that the failure to provide a Statement of Claim or Particulars is of any significance in determining whether to grant Mr Newman’s application.

[46] The respondent has been provided with a copy of the Statement of Claim filed in the Supreme Court of New South Wales.  That document sets out in considerable detail particulars of Mr Newman’s injuries and disabilities, and particulars of other losses claimed by him.  In addition, on 19 June 2008, an Initial Notice was given to Crown Law under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), which included a description of Mr Newman’s injuries, a description of the nature, type and severity of the symptoms, and an extensive list of disabilities that he says results from his treatment. The PA Hospital also has its records for the occasions on which Mr Newman was treated by it.

[47] In my opinion, the respondent is well informed about matters relevant to Mr Newman’s claim for quantum.  I do not accept that there is any relevant prejudice in this regard, or that it is a matter of any significance for the exercise of the discretion.

[48] Reliance was also placed on a passage in Ward v Wilshire Australia Pty Ltd,[9] where reference was made to the prospect that the claim might increase with the passage of time.  However, it should be noted that, in that case, there was a prospect that the condition of the party seeking the extension had deteriorated, due to additional supervening factors.[10]  There is no basis for thinking that that is a relevant consideration in the present case.

[49] It is also submitted on behalf of the respondent that it may be necessary to disentangle the extent to which Mr Newman’s condition is the result of treatment by the Moree Hospital, and treatment by the PA Hospital.  Although the respondent has relied upon affidavit evidence from two plastic and reconstructive surgeons involved in the treatment of Mr Newman, neither has suggested that the passage of time would make it more difficult to identify the extent to which Mr Newman’s condition was the result of treatment at the PA Hospital, as distinct from treatment at the Moree Hospital.  There is also extensive documentation of Mr Newman’s treatment at the PA Hospital, and of his condition at various times when being treated.

[50] Against that background, I am not satisfied that the respondent has suffered significant prejudice in relation to the issue of the extent to which its conduct might be responsible for Mr Newman’s condition. 

[51] The respondent also submits that the application should be refused because of delay on the part of Mr Newman (independent of any consideration of prejudice).  While this matter has been primarily raised on the question whether material facts were within the means of knowledge of Mr Newman, it seems to me to be potentially relevant to the exercise of the discretion conferred by s 31. 

[52] It is said that, if Dr Lindstrom had been approached earlier, then the case against the PA Hospital would have emerged earlier.  There is also a suggestion that at times it was difficult for Mr Newman’s solicitor to contact him. 

[53] In this case, affidavits were provided both by Mr Newman, and his solicitor.  Neither was cross-examined.  I have already mentioned some aspects of the contact between them.  The solicitor’s affidavit, which was the principal basis for the submission that Mr Newman was difficult to contact, seems directed to recording steps taken by the solicitor from the time instructions were first given.  It refers to attempts being made to contact Mr Newman on a number of occasions.  It does not identify whether the attempts were successful; or for those attempts which were unsuccessful, what the cause for that might have been; and whether in such cases that had any significant effect on the progress of Mr Newman’s claim.

[54] It is useful to consider some examples.  On 2 April 2007, further instructions and details were sought from Mr Newman; and on 3 April 2007, further instructions were sought from Mr Newman.  The description of these events in the solicitor’s affidavit rather suggests that some information was obtained on 2 April 2007, but that is by no means clear.  These events were then followed by attempts to obtain medical information from a number of sources, as well as a police report.  The actions which follow the events described as seeking instructions from Mr Newman suggest that the instructions were obtained. 

[55] The solicitor deposed that on 10 May 2007, an attempt was made to contact Mr Newman.  She then deposed that on 18 May 2007, further instructions were sought from Mr Newman.  It is unclear whether contact was made with Mr Newman on 18 May 2007; and whether that was a consequence of the attempt to contact him on 10 May 2007.

[56] There were then attempts to contact Mr Newman on 21 May 2007, 28 May 2007, and 26 June 2007.  The solicitor then deposes that on 27 June 2007, further instructions were obtained from Mr Newman; and on 5 July 2007 Mr Newman provided further information in relation to his claim.  Then on 11 July 2007, he provided funds to obtain a police report.  It is not clear whether any of the attempts were successful; or whether the contact on 5 July was to provide a further response to a matter previously raised by the solicitor, or was simply initiated by Mr Newman.

[57] The solicitor deposes to other occasions when an attempt was made to contact Mr Newman; and when further instructions were sought from him.  Again, what actually happened is rather unclear.  There were a number of occasions in November and early December 2007 when attempts were made to contact Mr Newman.  That may have been related to the fact that he had changed his telephone number, though again the evidence is unclear.  The solicitor also refers in a general way to difficulty, at times, in contacting Mr Newman, with reference to the fact that he lives in Moree and the solicitor is based in Sydney.  With evidence of this nature, it seems to me to be a matter of some importance that there was no attempt to cross-examine the witnesses to establish the extent to which any delay on the part of the plaintiff was unreasonable, and productive of significant delay in the pursuit of Mr Newman’s claim.  The result is that neither the solicitor, nor Mr Newman, has had the opportunity to comment on the matters relied upon in submission by the respondent.

[58] Beyond that, in the present case, the significance of any delay by Mr Newman is doubtful in the context of the application under s 31 of the Limitations Act.  The question is whether Mr Newman had taken reasonable steps to ascertain a material fact of a decisive character in relation to his claim against the PA Hospital.  Since he had no reason to think that he might have such a claim prior to being informed of Dr Lindstrom’s report on 13 June 2008, it can hardly be said that he has failed to take all reasonable steps to ascertain facts relating to that claim prior to that time.  If he has not failed to take reasonable steps in relation to his claim against the PA Hospital, it seems difficult to refuse relief under s 31 on the basis of delay in pursuing some different claim.

[59] In any event, the material clearly shows that there was contact between Mr Newman and his solicitors in March, June, July, August, September and December 2007; and in March and June 2008.

[60] In summary, I do not consider that there has been substantial delay by Mr Newman in investigating or prosecuting his rights.

[61] However, there is affidavit evidence relied upon by the respondent with a view to establishing that it has suffered actual prejudice by reason of the delay in commencing proceedings. Dr Bayley states that he has some independent recollection of Mr Newman’s case, though it is vague.  His affidavit suggests that he has some recollection of some details which have not been recorded.[11]

[62] Dr Bayley seeks to suggest the likelihood that Mr Newman’s admission would have been dealt with by both the Plastic Department and the Orthopaedic Department.  Dr Bayley goes on to suggest that it would have been likely that after admission, further liaison would have occurred between the two departments.[12]  Dr Bayley also expresses the opinion that it is inconceivable that Mr Newman underwent surgery on 2 April 2005 without orthopaedic clearance, as that would not have accorded with contemporary practice.[13] He explains the absence of any reference to communications with the Orthopaedics Department by the fact that Orthopaedics was a high-volume, high-intensity area of practice at the PA Hospital, and it was not uncommon for some communications with that department not to be recorded.

[63] Dr Bayley also gives evidence that the registrars who worked with the PA Hospital Plastics Department in 2005 are now scattered; some being overseas and others interstate; and says that it is now impossible for the hospital to attempt to verify whether the Orthopaedics Department was involved in Mr Newman’s case prior to the surgery on 2 April 2005, by contacting former registrars of the Plastics Department.[14]  He also says that it was common for registrars to take photographs of wounds which would be stored in their laptop, but because the registrars are scattered, any such photographs are unavailable to the hospital.

[64] Dr Belt performed the surgery.  He says that he has only a vague recollection of Mr Newman’s case but has refreshed his memory through reading hospital records.  He too deposes that in accordance with hospital practice in 2005, Mr Newman would not have been accepted for the surgery without prior clearance from the Orthopaedics Department; and that orthopaedic involvement was not always recorded.[15] He swears that it is now impossible for that hospital to determine whether there was orthopaedic involvement prior to the surgery carried out on Mr Newman.

[65] In my view, this evidence demonstrates some prejudice to the respondent, resulting from the passage of time since the surgery in April 2005.  The recollections of both doctors are vague, and likely to be significantly more vague then they would have been immediately following the surgery.  They also suggest that the registrars who were attached to the Plastics Department around the beginning of April 2005 have gone elsewhere. However, their evidence does not indicate that any attempt has been made to identify the registrars who were involved in Mr Newman’s treatment (the names of some appear in the hospital records); or to see whether any of them still works at the PA Hospital, or is otherwise easily able to be contacted.  Nor is there any suggestion of inquiries with the Orthopaedics Department to see whether any records are available from that source.  On the other hand, these doctors were not cross-examined with a view to establishing that such or other inquires could have been carried out, and that they might well have assisted the hospital in establishing the true position.

[66] It should also be noted that both Dr Belt and Dr Bayley indicate they have some limited recollection of Mr Newman’s treatment; and each is able to depose with some confidence to the practice of the Plastics Department in 2005, in relation to the referring of patients such as Mr Newman to the Orthopaedics Department.

[67] As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor,[16] the ultimate question is whether the justice of the case requires the exercise of the discretion conferred by s 31 of the Limitation Act in Mr Newman’s favour. 

[68] His Honour also pointed out that in dealing with that question, it is appropriate to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the Limitation Act.[17]

[69] His Honour noted that delay in hearing the case is generally prejudicial, stating:[18]

“The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”

[70] On that basis, in every case in which the limitation period is extended, the defendant will suffer some prejudice.  Yet it is inherent in the legislation that extensions of limitation periods will be granted when there has been substantial delay in commencing proceedings.

[71] His Honour noted that the rationales for the enactment of limitation periods were matters relevant for consideration when exercising the discretion under s 31.  He identified them as being that, with the passage of time, relevant evidence is likely to be lost; it is oppressive, and potentially “cruel”, to a defendant to bring an action long after the circumstances which gave rise to it have passed; people should be able to arrange their affairs on the basis that, once the limitation period has passed, claims can no longer be made against them; and it is in the public interest that disputes be settled as quickly as possible.[19]

[72] His Honour also noted the importance of considering whether the defendant can obtain a fair trial, in determining whether to extend the limitation period after it has expired.[20]

[73] In Taylor’s case, the applicant for relief under s 31 had undergone a hysterectomy in 1979.  She had experienced pain ever since.[21]  In 1994, she began to investigate whether there may have been negligence on the part of the doctor who treated her.[22]  Hospital records contained a note, apparently in the writing of the treating doctor, which was at odds with the applicant’s evidence about the advice she had received prior to the procedure.[23]  The evidence of the doctor was likely to be critical.  While it was believed that he resided in Hong Kong, it had not been possible to locate him.  Accordingly, the case involved a consideration, on the one hand, of the detriment to the potential plaintiff which would result from the fact that she could not bring her claim; and on the other, the prejudice which had accrued to the defendant because the treating doctor had not been located, and some 16 years had passed since the relevant events.

[74] Against that background, McHugh J noted that it may often be a lesser evil to subject a defendant once again to a potential liability that had expired, than to deprive the plaintiff of the right to reinstate the cause of action; but that the justice of the plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable fairly to defend itself, or is otherwise prejudiced in fact (and who is not guilty of fraud, deception or concealment in respect of the existence of the action).[24]

[75] I have previously sought to identify the extent to which the potential defendant in the present case will be prejudiced.  However, while I consider that the risk that the hospital will not receive a fair trial has increased, I am not satisfied that it will not receive a fair trial. While the recollections of Dr Belt and Dr Bayley may have dimmed, they have not expired.  They recollect clearly the practice of the PA Hospital at the time Mr Newman was treated there, and each has some recollection of the treatment of Mr Newman.  Moreover, there are extensive hospital records for Mr Newman’s treatment.  I also note that the material suggests that inquiries to locate registrars from the Plastics Department at the time Mr Newman was treated there have not necessarily been completed. 

[76] Moreover, there are some other significant features of this case.  The first is that the PA Hospital was notified in May 2008 of Mr Newman’s potential claim against it.  That is a little over a month after the expiry of the limitation period.  There is no suggestion that in that time, the PA Hospital took any action to arrange its affairs or utilise its resources on the basis that a claim could no longer be made against it (the third of the rationales for limitation periods identified by McHugh J). 

[77] Nor is this a case where the action will be brought long after the circumstances which gave rise to it have passed.  While it is in the public interest that the dispute be settled as quickly as possible, with notice given so shortly after the expiry of the limitation period, it is difficult to see that this is a case where the dispute is likely to be resolved at a time significantly outside that which is envisaged by the Limitation Act.

[78] Another significant factor is that this is not a case where a person with a potential claim has stood by for a number of years before taking any steps to establish his rights.  Mr Newman first consulted solicitors about his injuries in August 2006.  This was before treatment of his condition by the PA Hospital had been completed.  Subsequently, in March 2007, he gave instructions to his solicitors to make a claim for Victims Compensation in relation to the assault; and to investigate and advise upon other possible claims, namely against the Royal Hotel, and the Moree Hospital.  As soon as he learnt in June 2008 that he might have a claim against the PA Hospital, he instructed his solicitors to bring a claim against the PA Hospital as well.  He has been reasonably diligent in identifying and protecting his rights.

[79] Indeed, Mr Newman had positive reasons not to think that he had a claim against the PA Hospital.  Prior to August 2006, he had been told by a medical specialist in Brisbane that the Moree Hospital may not have handed the infection properly.[25]  He was then told by an employee of his solicitors that he might have a possible negligence claim against the Moree Hospital.  There was no suggestion that he was told on either occasion that he may also have a possible claim against the PA Hospital.  Moreover, when he was admitted to the PA Hospital, nursing staff expressed surprise that his leg was in such a bad state after treatment at the Moree Hospital.  His own observations were that the PA Hospital was newer, larger, and had more staff and had more resources than the Moree Hospital; that the doctors and staff seemed to know more about his condition and how to treat it than those at the Moree Hospital; and that they seemed to pay a lot more attention to his condition, and to be more active in its treatment, than had the doctors and staff at the Moree Hospital.

[80] It is necessary to consider the significance of the potential loss of Mr Newman’s claim against the PA Hospital, along with his efforts over a number of years to pursue the other claims of which he was aware.  It is also necessary to consider the prejudice to the PA Hospital if the extension is granted, but also to consider the information available to it.  For some of the rationales for the introduction of a limitation period, the relatively brief time after the expiry of the limitations period before the PA Hospital first received of Mr Newman’s claim is relevant.  I am also conscious that there has been some delay in the investigation and prosecution of Mr Newman’s claims, but do not attribute great weight to it.  In all the circumstances, it seems to me that the justice of the case makes it appropriate to grant Mr Newman’s application.  Accordingly, I propose to extend the limitation period for Mr Newman’s claim against the PA Hospital until 13 June 2009.

Relief Under s 43 of PIPA

[81] Mr Newman also seeks leave under PIPA to start proceedings against the PA Hospital.  If leave is granted, the proceeding will be stayed until the provisions of Chapter 2 Part 1 of PIPA are complied with. 

[82] The function s 43 of PIPA has been explained as being to prevent litigants being deprived of the right to submit real and genuine controversies to determination in a court by the due procedure appropriate for that purpose.[26]

[83] While it would be a curious result that an extension of the limitation period might be granted, but leave refused under s 43 of PIPA, I do not think that the grant of leave under the latter section is inevitable.

[84] However, once the limitation period is extended, it follows that Mr Newman has the right to submit his claim for determination by the court.  To obtain leave under s 43 of PIPA, it is not necessary for him to establish that he has a reasonably arguable case.[27]  However, in the present case, Mr Newman has demonstrated the existence of evidence which, if accepted, would seem likely to establish the liability of the PA Hospital, at least to some extent, for Mr Newman’s condition.

[85] The respondent relies upon delay since June 2008.  However, I note that Mr Newman’s Notice of Claim, Initial Notice and Dr Lindstrom’s report were served on Crown Law in June 2008.  The respondent has not had any reason since June 2008 to think that the claim had been abandoned.

[86] The respondent also relies on the fact that PIPA seeks to promote speedy claim resolution and early settlements, and the promptness of actions to advance a claim.  While the general objectives of the legislation are undoubtedly of general importance, their significance when weighed against the significance of denying Mr Newman the right to commence his claim does not lead me to think that the application for leave should be refused.

[87] It was not submitted on behalf of the respondent that there is not an urgent need to start the proceeding.  Indeed, the tenor of its submissions is that the proceedings should have been started earlier.  Given that the extension of the limitation period which I propose to grant is for a brief period only, I am satisfied that there is an urgent need for Mr Newman to commence his proceeding against the respondent.

[88] Accordingly, I propose to grant Mr Newman leave under s 43 of PIPA.

Conclusion

[89] For the reasons set out above, I propose to extend the limitation period for making the claim against the PA hospital until 13 June 2009; and to grant leave under s 43 PIPA to institute proceedings against the PA Hospital notwithstanding that the provisions in Chapter 2 Part 1 PIPA have not been complied with.

[90] I propose to invite further submissions from the parties as to the form of the orders and costs.