In Doughty v Hillier [2024] NSWSC 1220 the Supreme Court of New South Wales has dismissed the plaintiff's application to extend the limitation period for her to bring a medical negligence claim against her treating orthopaedic surgeon.
Background
The medical negligence proceedings initiated by Ms. Doughty (the plaintiff) were based on six surgeries performed by Dr. Hillier between 2 May 2002 and 11 June 2009. The plaintiff alleged that Dr. Hillier's treatment was negligent and contributed to her injuries. She commenced her claim in the NSW Supreme Court on 8 February 2022.
In his defence, Dr. Hillier argued that the claim was statute time barred under the Limitations Act 1969 (NSW) (the Act). Specifically, he contended that the plaintiff had filed her claim well outside the statutory limitation periods, which are designed to encourage the timely resolution of disputes and protect defendants from facing claims where evidence may no longer be available.
The plaintiff's response included an application for an extension or suspension of these limitation periods, arguing that she was under a legal disability.
Acknowledging that a cause of action existed for each operation, the plaintiff argued that certain periods should be extended or suspended. The court was required navigate two limitation regimes due to amendments introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (CLA), which created a new limitation regime effective from 6 December 2002. Accordingly, the court needed to apply both the pre and post CLA regimes depending on the date of each surgery.
Issues for consideration
The primary issue before the court was whether the plaintiff knew or, through reasonable diligence, ought to have known that her injuries were due to negligence on the part of her treating surgeon, Dr. Hillier.
This knowledge would determine whether she could successfully extend the limitation period under the Act. The court was required to interpret the statutory requirements for the discoverability of the cause of action and determine if the plaintiff had a valid basis for an extension.
The case engages the principle of the "discoverability test," which requires the court to examine the point in time at which a reasonable person, in similar circumstances, would have been aware of the connection between their injury and the defendant's actions.
Additionally, the case illustrates the limitations imposed by the 12-year "long-stop" rule and the balance courts must maintain between a plaintiff's right to pursue a claim and the need to protect defendants from defending stale claims.
Trial decision
The court examined Sections 50C and 62A of the Act in determining whether an extension of time could be granted. Section 50C(1) of the Act stipulates that a personal injury claim must be commenced within the earlier of:
- the 3-year post-discoverability limitation period, which begins when the plaintiff becomes aware of the cause of action; or
- the 12-year "long-stop" limitation period, which begins from the time of the alleged negligent act or omission.
Both these time limits had expired in the plaintiff's case. She also conceded that she had not proven her claim of legal disability to the court's satisfaction and subsequently abandoned that part of her application. The remaining issue was whether the court could extend the limitation period under Section 62A of the Act.
Under Section 62A, an extension to the 12-year long-stop limitation period is only permitted if it is sought within three years of the date when the cause of action became discoverable. Given that the plaintiff filed her claim on 8 February 2022, she was required to demonstrate that her cause of action was only discoverable as of 8 February 2019 or later.
Discoverability test
Section 50D of the Act defines the discoverability of a cause of action. A cause of action is considered discoverable when the plaintiff knows or, through reasonable diligence, ought to know:
- that the injury or death has occurred;
- that the injury or death was caused by the fault of the defendant; and
- that the injury is sufficiently serious to justify a legal claim.
In applying this test, the court determined that the plaintiff did not have actual knowledge of these factors before 8 February 2019. However, the court concluded that, had she taken reasonable steps to investigate her condition, she would have been aware of Dr. Hillier's possible fault by 2014. This finding was based on medical advice she had received from another surgeon, which linked her injuries to Dr. Hillier's earlier treatment. Therefore, the court ruled that her cause of action was discoverable by 2014, meaning she was outside the window to apply for an extension under the Act.
The court's interpretation of the discoverability provisions underscores the importance of plaintiffs acting diligently in investigating potential claims. By 2014, the plaintiff had reason to suspect a link between her injuries and her treatment, yet she did not commence proceedings until eight years later. The court's decision reflects the judiciary's reluctance to extend limitation periods for plaintiffs who fail to act within a reasonable time once there is a basis to pursue a claim.
Implications
This decision has significant implications for medical negligence and personal injury claimants in NSW. It reaffirms that courts are unlikely to grant extensions to limitation periods when plaintiffs do not diligently investigate and act on their suspicions of negligence. The ruling emphasises that the discoverability test considers not only a plaintiff's actual knowledge but also what they reasonably "ought" to have known had they made proper inquiries. For legal practitioners, this case serves as a reminder of the importance of advising clients on the statutory timeframes associated with medical negligence claims and the need for prompt action when there is any indication that a cause of action may exist.
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