In the recent matter of Black v Hillier [2025] NSWSC 851, the plaintiff (Wilma Daphne Black) commenced a medical negligence compensation claim against the defendant, Dr Terrence Hillier (orthopaedic surgeon).

These proceedings commenced with the filing of a statement of claim on 30 July 2021. The plaintiff is claiming damages arising from treatment, including spinal surgery, she says was negligently performed by the defendant in 1999 and 2000. The defendant was an orthopaedic surgeon.

The plaintiff was an adult when the surgery was performed. She is now 77 years of age. The proceedings are out of time. To this end, the plaintiff filed a notice of motion on 3 December 2024, seeking an extension of the limitation period pursuant to section 60G of the Limitation Act 1969 (NSW) to 11 May 2022. This is the date when an amended statement of claim was filed. The application for an extension of time is opposed by the defendant.

The plaintiff has lived in Holbrook since 1952. When she was about 15, she injured her back when performing a pike dive at the local swimming pool. It later transpired that she had fractured three of her vertebrae. She wore a back brace for about 12 months. She thereafter continued to feel pain in her lower back, her left hip and down her left leg into her left foot. Nevertheless, she remained very active and able to manage the pain, until about 1996 when she began to rely on painkillers. The plaintiff’s general practitioner referred her to the defendant. The first consultation was on 17 February 1999. Two days later the plaintiff underwent facet injections which gave her some short-term pain relief. The plaintiff next saw the defendant on 23 February 1999 and then again on 12 April 2000. On 20 April 2000, she had an MRI scan and also a bone scan. On 2 May 2000, the plaintiff returned to see the defendant who sent her for a needle biopsy. The biopsy was performed at Albury Base Hospital on 6 June 2000. The plaintiff next saw the defendant on 21 June 2000. She does not recall any discussion about the results of the biopsy. The defendant did prescribe sodium fluoride tablets and perhaps some painkillers. On 17 July 2000, the plaintiff saw the defendant and told him that the tablets and the painkillers had not helped her back pain. On 28 August 2000, at another consultation with the defendant, he recommended a laminectomy and biopsy. The plaintiff says that the defendant gave her no warnings about the surgery, in particular, that it “might not help my pain or that it could make my pain worse.” On 26 September 2000, the plaintiff saw the defendant. She went on to a waiting list for surgery as a public patient at the Albury Base Hospital. On 29 November 2000, the plaintiff was admitted to Albury Base Hospital where the defendant performed the laminectomy and also a biopsy.

There was a follow-up consultation with the defendant on 18 December 2000. The plaintiff was advised to “take it easy” which she did. The biopsy was not discussed. The plaintiff did feel much better for a short period but by the end of 2000 her pain had returned, and in particular, she began to fall. The plaintiff had not done so before the surgery. The falls were connected to weakness in her left leg. The pain in her back continued as well as in her left hip and buttock and it continues to radiate down her left leg.

The plaintiff saw the defendant on 29 January 2001. Also, in 2001 the plaintiff’s general practitioner referred her to a Dr White, an endocrinologist, practising at Concord Hospital in Sydney. The plaintiff was diagnosed with Paget’s disease. Paget’s disease is a condition in which the replacement of old bone tissue with new tissue is disrupted. It can be productive of pain. According to the plaintiff, Dr White told her that “We do not think your Paget’s is what is causing your back pain.”

The plaintiff says that after the surgery, in November 2001, she began to experience anxiety. The plaintiff attributes this to her not being relieved of her pain as the defendant had suggested. She was also worried by the loss of power in her left leg. The plaintiff has not however had any psychological treatment. The plaintiff continues to have lower back pain as well as the extended pain. She still falls over. The plaintiff is limited in her domestic abilities, and she uses a scooter to travel locally. The plaintiff lives in a cottage alongside her daughter’s house, and she receives a good deal of assistance from her daughter and the latter’s family.

The plaintiff said that she had no familiarity with legal issues and had never consulted a solicitor before seeing her current solicitors in 2019. There was some unusual evidence about a letter that the plaintiff is asserted to have sent to the defendant in 2007, which provided as follows:

Dear Dr Hillier

I was a patient 9f (sic) yours about 4 year s ago –

I am seeking an explanation from you before seeing my Solicitor on my operation.

In November 2000 I had a Laminectomy done by you at the Albury Base Hospital. Several weeks later on my visit you asked me if my operation was a success and I told you that it wasn’t and your abrupt reply was” Well it should of been.

Later on I had more x rays and tests done and still you didn’t tell me why it wasn’t a success. A black spot showed up and I had a Biopsy done and still you didn’t tell me or get the proper results from that. As my Husband suffers from Pagets Disease I went to his Professor in Sydney .

…didn’t know and he asked me if it worked and I told him no. His reply was.” I am not surprised as the operation was done in the wrong spot.”

Later another Specialist came in and had a look at my scan and asked me the exact same questions. My answer was the same and so was his. Since then I have asked two other Medical Professionals and got the same reply.

I am now waiting for an explanation from you.

Yours Sincerely.

Wilma Black

The plaintiff denied sending the letter but accepted that she received a reply to it.

At [57] the court held:

I simply cannot see any explanation for the plaintiff’s letter other than that she wrote it. There is no evidence of a forgery and there is no evidence that would suggest some other person wrote the letter. It is inconceivable that the defendant would have manufactured it in order to give him the opportunity to write in reply. There is also no evidence from any family member who might, perhaps, have written the letter, or been in a position to say that the plaintiff was incapable of having written the letter.

It was common ground that if the plaintiff satisfied the court of the ‘awareness’ matters set out in section 60I, the next step would be to consider whether, as required by s 60G, it was just and reasonable to extend the limitation period. The court provided as follows at [67]:

The plaintiff, in case I found that the letter was evidence of a connection between the personal injury and the defendant’s conduct, submitted that the defendant’s letter in reply “essentially extinguishes any connection”. This was because the defendant’s letter assured the plaintiff that he had treated her appropriately and, as she states in her affidavit, she accepted the response.

The court rejected the proposition that a connection, once established, can be ‘undone’ so as to postpone the three-year period referred to in section 60I(1)(b).

As the court was unable to make an order under s 60G the plaintiff’s application failed. The application would also have failed for want of being ‘just and reasonable’, given the paucity of the plaintiff’s evidence and because of actual & presumptive prejudice.

Ultimately, on 1 August 2025, the Supreme Court of New South Wales ordered as follows:

  1. The notice of motion to extend time filed by the plaintiff on 3 December 2024 is dismissed.
  2. The plaintiff is to pay the defendant’s costs of the motion.
  3. The parties have leave to request any further orders in respect of the proceedings, including the costs of the proceedings.

The court should be informed of any request for further orders within 21 days of these orders.

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