The Court of Appeal reminded plaintiffs on Friday* that the bar to be cleared for an extension of time beyond a limitation period is high and that in each attempt, they bear an additional degree of difficulty by being required to carry the defendant’s baggage – whatever it contains – with them.
In this case – one of 30 or so brought against a Cairns plastic surgeon – Ms Adams alleged a failure to warn and the giving of assurances of low-risk associated with a breast augmentation procedure conducted in June 2003. The district court had allowed it to proceed after having been commenced three years and nine months outside the permitted period.
The previously unknown material fact was that the medical treatment received from the defendant was substandard and this was only discovered as a result of a recently commissioned medical report. Dr Hertess appealed the trial judge’s erroneous assessment of the prejudice she would sustain by the claim being allowed to proceed. The material fact issue was not in dispute on appeal.
The doctor had led evidence that her former nurse who had been responsible for discussing the surgical risks with the patient, had left her to employ and had indicated that she would not assist in the defence. Secondly, she would have to rely on evidence of “usual practice” rather than a personal recollection of events.
The trial judge accepted that both issues presented inherent difficulties for the surgeon’s defence but – on the basis that the situation would have been no different prior to the expiration of the limitation period – there was no resulting prejudice militating against the exercise of discretion to grant the limitation extension that the plaintiff was seeking.
Dr Hertess contended however that such prejudice should be assessed by reference to the circumstances existing at the time of application and not by comparison of that position to that which prevailed during the limitation period.
Her argument was that although she may well have had the same difficulties had the claim been timely commenced, once the limitation period expired those same inherent difficulties were escalated to features of prejudice upon which she could rely to prevent discretion being exercised in respect of a claim that was already time-barred.
On this argument she was entirely successful: the primary judge had “failed to give due weight to the prejudice suffered by the applicant both presumptive and actual and to the fact that an extension of time would operate to deprive the applicant of the protection of the Act”.
The actual prejudice Dr Hertess would sustain was from the lack of cooperation from her nurse and detrimental features of “usual practice” evidence being less “apt to refute an allegation… of specific things being said and done” as compared to a failure to say or do something.
The Court of Appeal quoted with approval McHugh J in Brisbane South Regional Health Authority v Taylor**in relation to a plaintiff’s onus of convincing the court to exercise its discretion in its favour:
That the applicant had a good cause of action and was unaware of a material fact of a decisive character… does not alter the burden on the applicant to show that the justice of the case favours the grant an extension of time. Those factors enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour… To qualify is not to succeed.
In addition to actual prejudice, there is also a presumptive prejudice that the plaintiff must overcome. Reminiscent of the “unknown unknowns” debate surrounding the absence of weapons of mass destruction following the invasion of Iraq, McHugh J’s views were espoused again:
“Sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that of the existence. What has been forgotten can rarely be shown. So it must often happen that important, perhaps this is of evidence has disappeared without anybody knowing that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. 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 because of action arose”.
Thus the plaintiff must demonstrate that the justice of their case is superior to the presumed prejudice – which occurs because of the presumed degradation of evidence and one’s entitlement to consider oneself beyond litigation after the expiration of the period – that necessarily flows from allowing an out of time action to proceed.
It may be arguable that such evidentiary unknowns should be less relevant in presumptive prejudice disputes for personal injury cases because the limitation period for them is only half the time allowed for other causes of action.
It must also be remembered that this was strictly an actual prejudice case. The considerable discussion of presumptive prejudice in the judgment is therefore obiter.