A suspicion is not knowledge
In Victoria, under the Limitation of Actions Act 1958 (Vic) (Act), a person injured through negligence has 12 years from the date of the negligence to bring an action unless the cause of action was discoverable before the expiration of the 12-year period. In that case, the limitation period is three years from the ‘date of discoverability’.
Section 27F(1) of the Act defines discoverability as when the Patient knew, or ought to have known that:
- she was injured;
- the injury was caused by the fault of the Doctor; and
- her injury was sufficiently serious to justify issuing the proceeding.
Under section 27K, the Court has the power to extend the limitation period if just and reasonable to do so. Section 27L lists a number of matters that the Court will consider when determining an application for an extension, including the extent to which there is or is likely to be prejudice to the defendant.
The Doctor contended that the date of discoverability was before 21 December 2017 (three years before the proceeding was commenced), as in 2016 the Patient enquired with solicitors Maurice Blackburn about bringing a claim. The Patient contended that the date of discoverability was not until some time in 2020 when her current solicitors, Slater & Gordon, obtained medico-legal opinions on her behalf. The Doctor also contended that it was not just and reasonable for the judge to extend the limitation period.
The judge accepted the Patient’s evidence that until receipt of the medico-legal opinions, she did not know the Doctor’s treatment (or failure to advise) had played a role in her stroke. Before this, she ‘may have had a belief or suspicion’, but this was ‘more a grievance than knowledge of the fact’. Her Honour held that part of the proceeding had been issued within the relevant limitation period, and granted an extension of time for those aspects of the claim that would have been statute barred. The Doctor sought leave to appeal.
The Court of Appeal granted the Doctor leave to appeal, but dismissed the appeal upholding the decision at first instance.
Date of discoverability
The Court of Appeal confirmed that it was when the Patient was informed of the medico-legal opinion she was first aware she had an actionable claim against the Doctor.
The Doctor submitted that, if knowledge of fault could only be met by a plaintiff upon receipt of cogent and relevant medico-legal advice, that the Court should expressly say so. However, the Court indicated that:
Some cases may turn on the provision of such [medico-legal] opinions, others may not. Sometimes the fault of the defendant will be obvious and straightforward. In other cases, the plaintiff will have sufficient knowledge to enable them to know the fault of the defendant without the need to make any enquiries. There is no one-size-fits-all answer. The date upon which the plaintiff has knowledge of the three facts required under s 27F of the Act will depend on the facts and circumstances of the particular case.
The Court found at the time of the Patient’s consultation with Maurice Blackburn, she had a suspicion but, nothing more. In addition, the Patient was not cross-examined about whether her training or education as a nurse gave her requisite knowledge of the key factors necessary to establish fault. In any event, while knowledge obtained from nursing qualifications may give rise to a suspicion, that is not the same as knowledge of fault.
Whether the Patient ‘ought’ to have known
The Doctor had the onus of establishing that the patient would have ascertained knowledge of fault had she taken all relevant steps before 21 December 2017. This involves an enquiry into the steps actually taken and then a determination as to whether such steps were reasonable in the circumstances. While this is an objective assessment, it must be made having regard to the patient’s personal circumstances.
Although the Patient sought advice from Maurice Blackburn, she did not instruct them to investigate the merits of her claim. Due to her poor health, multiple hospital attendances and some memory problems, the judge correctly found the Patient was not in a position to take reasonable steps to establish fault from late 2016 to February 2019.
Just and reasonable
The Doctor contended that with the passage of time, he would be denied a fair trial if the limitation period was extended. In particular, he referred to the Patient’s ‘fragile memory’ and his inability to be able to cross-examine her on various issues. The trial judge correctly acknowledged that there would be general prejudice caused by the delay, and that the Patient’s memory had faded. However, the Court is not required to determine whether the Doctor would have a ‘perfect trial’, but is concerned with ensuring a fair trial is possible. The Court of Appeal noted that there were plenty of records and witnesses available. In addition, the two main issues in the proceeding (breach and causation) would be the subject of expert evidence. Such evidence would be based on contemporaneous clinical records that were available.
Although each case will be judged on its merits, in medico-legal cases where medical records are intact, witnesses are still available and liability and causation will be the subject of expert evidence, the Court may consider an extension of time to be just and reasonable and it will be unlikely to find that prejudice exists if an extension of time is granted.
A claimant’s state of mind is also a key consideration in the decision as to discoverability, and the Court of Appeal made it clear that a claimant’s personal circumstances would be taken into account in such a determination.
It was also interesting to note that the Court of Appeal did not consider the consultation with Maurice Blackburn to constitute legal advice in this instance. Parties to litigation should note that a plaintiff’s consultation with a law firm will not always be conclusive on the subject of discoverability.
