Tori v Greater Murray Health Service [2002] NSWSC 186

Reported Decision : (2002) Aust Torts Reports 81-651

New South Wales Supreme Court

CITATION : Tori v Greater Murray Health Service [2002] NSWSC 186 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20156/2001; 20154/2001 HEARING DATE(S) : 12 March 2002 JUDGMENT DATE : 18 March 2002

20156/2001 Tanya Tori (Plaintiff) Greater Murray Health Service (Defendant) PARTIES : 20154/2001 Michael Tori (Plaintiff) Greater Murray Health Service (Defendant) JUDGMENT OF : Master Harrison

Mr R Ingram (Plaintiffs) COUNSEL : Mr G Rundle (Defendant) Commins Hendriks (Plaintiffs) SOLICITORS : Lyn Boyd (Defendant) CATCHWORDS : Extension of time - ss 60C & E Limitation Act - parents claims for nervous shock - birth of a child LEGISLATION CITED : Limitation Act 1969 (NSW) - ss 60C & E The Council of City of Sydney v Zegarac (1998) 43 NSWLR 195 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Holt v Wynter [2000] 49 NSWLR 148 McLean v Sydney Water Corporation [2001] NSWCA 122 Szerdahelyi v Bailey; Ortado v Bailey and Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485 CASES CITED : Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995) Mansfield v Heather [2000] NSWCA 36 Jaensch v Coffey (1984) 155 CLR 555 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Campbelltown City Council v Mackay (1989) 15 NSWLR 501 Chiaverini v Hockey (1993) Aust Tort Reports 81-223 Morgan v Tame (2000) 49 NSWLR 21 Page v Smith [1994] 4 All ER 522 DECISION : (1) The plaintiffs are granted extensions of time within which to commence proceedings in this court for damages in respect of nervous shock arising from the birth of their son Jack on 20 June 1995 up to and including 2 July 2001; (2) The plaintiffs are to pay the defendant's costs as agreed or assessed.

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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 18 MARCH 2002

20156/2001 - TANYA TORI v GREATER MURRAY HEALTH SERVICE 20154/2001 - MICHAEL TORI v GREATER MURRAY HEALTH SERVICE

JUDGMENT (Extension of time – ss 60C & E Limitation Act – parents claims for nervous shock – birth of a child) 1 MASTER: By notice of motion in matter No 20156/2001 filed 5 July 2001 the plaintiff seeks an order granting leave within which to commence proceedings pursuant to ss 60C & E of the Limitation Act 1969 (NSW). The plaintiff relied on her affidavits sworn 20 June 2001 and 7 December 2001, and the affidavit of Geoffrey John Potter sworn 18 January 2002. By notice of motion in matter No 20154/2001 filed 2 July 2001 the plaintiff seeks an order granting leave within which to commence proceedings pursuant to ss 60C & E of the Limitation Act 1969 (NSW) and relied on his affidavits sworn 20 June 2001 and 7 December 2001. The plaintiffs are husband and wife and the parents of Jack Tori the plaintiff in matter No 20157/2001. The defendant did not rely upon any affidavit evidence. The defendant opposes the order sought. 2 By statements of claim filed 2 January 2001 the plaintiffs plead that the defendant at all times was a statutory authority and had the care, control and management of a public hospital known as Wagga Wagga Base hospital and as such held itself out as offering and providing medical, surgical, specialist, obstetric, nursing and other treatment. They allege that as a result of negligence, their child Jack who was born on 20 June 1995 suffered injuries and disabilities. Upon birth Jack was resuscitated and was diagnosed with hypoxic-ischaemic encephalopathy, necrotising enterocolitis (which required a colostomy) and hypocalcaemia. The plaintiffs claim that after Jack's birth they suffered nervous shock.

The Law 3 The plaintiff relies on ss 60C and E of the Act in relation to the actions pleaded against the defendant. Section 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides: "Ordinary action (including surviving action) 60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 4 Section 60E provides: "Matters to be considered by the court

60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff's injury or loss." 5 In relation to ss 60C and 60E of the Act, Mason P in The Council of City of Sydney v Zegarac (1998) 43 NSWLR 195 referred to propositions which were uncontroversial. They are:

(1) Section 60C confers a judicial discretion.

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

(3) In exercising the discretion, the court is required "to have regard to all the circumstances of the case" (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) "to the extent that they are relevant to the circumstances of the case".

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's second reading speech that are set out in the order judgments, and which McHugh J discusses in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles. 6 Justice Powell in Zegarac stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA's further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do; and secondly, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant. 7 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at p 147 para 119 where their Honours stated that the effect of the High Court decision in Taylor's case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal – see McLean v Sydney Water Corporation [2001] NSWCA 122. 8 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 9 The cause of action accrued on 20 September 1995. The limitation period expired on 20 September 1998. The statement of claim was filed on 2 January 2001. On 17 May 2001 the defendant filed a defence pleading that the cause of action was statute barred. The application seeking the extension of time was filed on 2 July 2001. The application is 2 years and 10 months out of time. 10 The main reason for delay is that the plaintiffs set about providing for the needs and demands of their son Jack and could not cope with the additional stress of taking legal action. 11 In 1995 after the birth of her son Mrs Tori was very distressed and physically exhausted. She had considerable difficulty in coping with the complication which had arisen following Jack's birth. She was also very upset and confused about his immediate and future needs. I have briefly summarised the duties that the plaintiffs were required to carry out in the first few years of Jack's life in order to appreciate how consuming it was both physically and emotionally. Jack was an irritable baby with poor sleeping habits. He constantly screamed. Three months after he was born he was taken off anticonvulsant medication as he had ceased having seizures. The fits reoccurred at 2 years of age and by October 2000, he was again taken off all anticonvulsant medication in the hope he would remain seizure free. Jack had serious side effects from the medication such as a slowing of his development, poor balance and drowsiness. Additionally, Jack developed eczema on his chin (from constantly drooling) and in the creases of his elbows and knees. Jack's care has been extensive and demanding. Since birth Jack has been incontinent of bowel and bladder. He wears nappies and is totally unaware if they need changing. He cannot walk but can crawl. He gags when eating lumpy food and drools excessively. He has required constant care and attention, "at need" 24 hours, 7 days a week. Jack is totally dependent upon others for every aspect of daily living. 12 On 13 January 1998 the plaintiffs attended the offices of Commins Hendriks solicitors and made general enquiries regarding the manner in which Mrs Tori has been treated during labour. As a consequence of that conference they instructed Geoffrey John Potter to obtain the clinical notes from the hospital relating to the birth of their son. On 4 February 1998 their solicitor received the clinical notes from Wagga Wagga Base hospital. On 22 July 1998 their solicitor received the clinical notes from Princes of Wales hospital. 13 On about 4 August 1998 the plaintiffs discussed the ongoing condition and management of Jack with their solicitor. At that time they were having substantial difficulty in coping with Jack's medical problems and the demands that he placed on them. Following that discussion they agreed that they would not pursue any legal action and that all their efforts should be directed towards Jack's continuing care. On 30 September 1998 Mr Tori telephoned Mr Potter regarding the matter and Mr Tori instructed his solicitor not to proceed further at that time due to the additional stress it would cause his family. 14 On 28 March 2000 the plaintiffs had a further discussion regarding the possibility of legal action. At that time they were coping better with Jack's disabilities and they were most concerned regarding the requirements he would have in the future and whether they would be able to cope with looking after him. Mr Tori had changed employment and had more flexible working hours. At this time they again contacted Commins Hendriks and requested that further investigation take place regarding the possibility of proceeding with a claim on Jack's behalf. 15 On 5 June 2000 their solicitor received a report from Professor Mackay dated 13 May 2000. It was not until they had read the report of Professor Mackay that they decided that the plaintiffs were then in a position to deal with what would be required in pursuing the matter legally. It was at this conference with their solicitor that the plaintiffs felt they for the first time had been able to openly discuss the effect of Jack's birth and the psychological impact it had had on them. 16 On 13 September 2000 Dr Gertler in his report stated that as a result of the circumstances of Jack's birth Mrs Tori sustained a nervous shock. Mrs Tori witnessed the attempts made to resuscitate her son at Wagga Wagga Base hospital and his subsequent treatment at the Princes of Wales Children's hospital. As a result of the nervous shock Mrs Tori had development symptoms of a post traumatic stress disorder. After reading Dr Gertler's report it became clear to Mrs Tori that she was suffering from nervous shock and would require future treatment and management. The plaintiffs then instructed their solicitor to proceed with a claim for nervous shock.

Extent to which delay caused prejudice - s 60E(b) 17 There is no evidence that had the plaintiffs commenced the proceedings within the limitation period that any evidence that would then have been available has been lost.

The time at which the injury became known to plaintiff - s 60E(c) 18 Shortly after Jack's birth, his parents were aware that Jack suffered from the disabilities that have been outlined earlier in this judgment.

Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(d), (e) and (h) 19 Even though the parents knew of Jack's injuries shortly after Jack's birth, it was only after the effluxion of a few years that they became aware of the extent of his injuries and disabilities. In particular the realisation of the financial burden of Jack's future medical care crystallised in March 2000. 20 At the latest, the plaintiffs would have been aware of the connection between the defendant's act or omissions when they received the reports of Drs Gertler and Mackay in the second half of 2000.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f) 21 There is no conduct by the defendant which induced the plaintiff to delay brining action.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 22 Aside from the understandable initial delay while the parents adjusted to living with Jack, it was not until March 2001 they felt that they could cope with taking legal action. At the time, the realisation of the financial burden of future treatment had become apparent to them. After they made that decision to take legal action they acted expeditiously in obtaining medical reports, namely, those of Professor Mackay and Dr Gertle, and commencing legal action. In addition, reports of Dr Barrowclough dated 19 September 2000 and Dr Colditz dated 20 June 2000 have been obtained. 23 The defendant submitted that the plaintiffs do not have a real case to advance. For the purposes of this application only, the defendant does not seek to argue that the plaintiffs do not have a real case to advance on liability. In any event, there is medical opinion that the defendant had negligently managed Jack's delivery. 24 The applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (NSWSC unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485; Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995); and Mansfield v Heather [2000] NSWCA36. 25 The defendant submitted that there is no evidence that the plaintiffs have suffered nervous shock and damage. Liability for nervous shock depends upon the sudden sensory perception of a phenomenon which confronts or insults the plaintiff's mind and causes recognisable psychiatric illness – see Jaensch v Coffey (1984) 155 CLR 555 at 566-567 per Brennan J; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 410 per Ackner L; Campbelltown City Council v Mackay (1989) 15 NSWLR 501; Chiaverini v Hockey (1993) Aust Tort Reports 81-223; and Morgan v Tame (2000) 49 NSWLR 21. 26 Mrs Tori recounted the circumstances of Jack's birth to Dr Gertler, namely, that she was unaware of any problems in her labour until she saw Jack who was "blue". She was in total shock. Jack was taken from her and attempts were made to resuscitate him. An alarm went off and people came "flooding into the room". Mrs Tori became extremely agitated as she saw Jack being resuscitated and fitting. She was apparently told by a doctor that he would "probably die". 27 Mr Tori recounted the circumstances of Jack's birth to Dr Gertler as follows; "Mr Tori was unaware that there were major difficulties with the labour or birth until just before Jack was born. He then became aware that the two midwives who performed the delivery were anxious, and that there were problems such as an absent heartbeat. Finally one of the midwives "pulled him out", immediately took Jack to another table in the labour ward, and "hit the button". Other staff came into the room and attempted to resuscitate Jack, who was blue and fitting. Mr Tori observed this and can recall "shaking". He was "pretty upset" at Jack's condition and also with Tanya's emotional state; she was screaming "what's wrong" and "where's my baby" and Mr Tori attempted to settle her down. More people came into the room and became increasingly anxious. He was also told by the paediatrician in attendance that Jack's condition was poor…" 28 In respect of Mrs Tori, Dr Gertler has diagnosed that as a result of the nervous shock which she sustained at the time, she developed symptoms of post traumatic stress disorder. This has become chronic in duration, persisting despite counselling several years ago. The symptoms of her post traumatic stress disorder include disturbance with nightmares related to her son's birth, flashbacks to that time and rumination about what occurred, social and emotional withdrawal, feelings of depression, and feelings of guilt. Mrs Tori's personal life has been severely affected by her post traumatic stress disorder. 29 In respect of Mr Tori, Dr Gertler diagnosed that as a result of the circumstances of his son Jack's birth on 20 September, Mr Tori appears to have sustained a nervous shock. This has led to the development of a chronic depression which is part of an adjustment disorder. 30 In my view it is arguable that it was foreseeable that the parents would suffer nervous shock. There is nothing to suggest that the plaintiffs were other than of normal fortitude - (see the propositions in Page v Smith [1994] 4 All ER 522, Hofmann LJ (at 549-50). These propositions were approved by the Chief Justice in Morgan at paras 11 and 12). It is my view that the plaintiffs have a real case to advance. 31 The defendant has submitted that Mrs Tori has not discharged her onus of proof as she failed to mention that she had received some counselling in her affidavit. Mrs Tori provided that information to Dr Gertler and it was taken into account by him in reaching his diagnosis of nervous shock. 32 I accept that with the passing of six years, there will be presumptive prejudice. The hospital notes of Wagga Wagga Base hospital and Prince of Wales hospital are available (Ex A). These provide contemporaneous evidence of the events leading to and subsequent of Jack's birth. While the contents of these notes may not extend to detail the plaintiffs' psychiatric state, there were numerous medical practitioners involved in Jack's immediate care who would be able to give evidence of the parents' reaction. It is my view that the defendant will be able to investigate the claim and prepare its defence. 34 It is my view that the defendant will not suffer significant prejudice. It will be able to obtain a fair trial. I have taken the matters referred to in s 60E(a) to (h) into account. The plaintiffs have discharged their onus and I am satisfied that it is just and reasonable to extend the limitation period under s 60C and E against the defendant. 35 Costs are discretionary. In Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The defendant's opposition was not wholly unreasonable. The plaintiffs should pay the defendant's costs. 36 The orders I make are:

(1) The plaintiffs are granted extensions of time within which to commence proceedings in this court for damages in respect of nervous shock arising from the birth of their son Jack on 20 June 1995 up to and including 2 July 2001.

(2) The plaintiffs are to pay the defendant's costs as agreed or assessed. **********

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