LIMITATION OF ACTIONS — application for extension under s 62A of the Limitation Act 1969 (NSW) — medical negligence — where 4 of the 6 relevant surgeries occurred more than 12 years before proceedings were commenced — whether plaintiff ought to have known that the injuries she now claims to have suffered were caused by the fault of the defendant in a sense contemplated by s 50D(1)(b) of the Limitation Act 1969 (NSW)
Quick Take
1A patient who undergoes multiple unsuccessful surgeries by the same surgeon does not necessarily 'ought to know' that their injuries were caused by the surgeon's fault for the purposes of s 50D(1)(b) of the Limitation Act 1969 (NSW), where the patient maintained reasonable trust in the treating surgeon, was focused on related workers compensation disputes, and no treating practitioner raised concerns about the surgeon's treatment until a later consultation.
2Where the 12-year long-stop limitation period has expired and key contemporaneous records — including the defendant's own records, referral letters, and allied health records — have been lost or destroyed, the resulting presumptive and actual prejudice to the defendant may be sufficient to render it not 'just and reasonable' to extend the long-stop period under s 62A, notwithstanding the significance of the plaintiff's claimed injuries.
3The discoverability date under s 50D is fixed by an objective assessment of what the plaintiff ought to have known, not by the plaintiff's subjective choice of when to seek advice; however, the totality of the plaintiff's circumstances — including the nature of the doctor-patient relationship and the plaintiff's focus on related litigation — is relevant to that objective assessment.
