In the recent matter of Doughty v Hillier [2024] NSWSC 1220, the plaintiff (Ms Vicki Maree Doughty) commenced proceedings against the defendant, Dr Terrence Hillier, and orthopaedic surgeon, in the NSW Supreme Court on 8 February 2022 alleging negligent treatment in relation to six operations performed by Dr Hillier between 2 May 2002 and 11 June 2009.
In his Defence, Dr Hillier pleaded that the plaintiff was time barred pursuant to the Limitations Act 1969 (NSW) (the Act). In response, Ms Doughty made an application seeking an extension of the limitation periods and/or suspension of the limitation periods on the basis that she was under a legal disability.
Ms Doughty accepted that a cause of action existed for each operation. Three of Ms Doughty’s operations were performed before the commencement of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (CLA) which introduced a new limitation regime on 6 December 2002. As such, the court was required to consider the application of the limitation regime that existed both before and after the introduction of the CLA on 6 December 2002.
Section 50C(1) of the Act provides the following limitation period for personal injury actions:
- An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:
- the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
- the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
There was no dispute that both periods had expired. The plaintiff also conceded that she had not proved that she was under a disability for a sufficient time, and she abandoned that part of her application. The remaining issue for determination was therefore whether the court should extend the limitation period.
The plaintiff relied on Section 62A of the Act to apply for an extension of the 12 year long-stop limitation period. The court stated that the wording of Section 62A provides that an extension cannot be made beyond the period of 3 years after the date on which the cause of action is discoverable. Given the plaintiff commenced her proceedings on 8 February 2022, the date for discovery was 8 February 2019. In short, if the plaintiff’s cause of action was discoverable before 8 February 2019, she would not be entitled to apply for an extension of the 12 year long-stop limitation period.
Section 50D of the Act provides that a cause of action is discoverable on the first date that a person knows or ought to know of each of the following facts:
- the fact that the injury or death concerned has occurred,
- the fact that the injury or death was caused by the fault of the defendant,
- in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
The court concluded that, whilst the plaintiff did not know of the facts contained in Section 50D prior to 8 February 2019, had she taken all reasonable steps, she ought to have known by 2014 at the latest that her alleged personal injury was caused by Dr Hillier’s fault. In coming to this conclusion, the court found that the plaintiff had received medical advice from another surgeon to that effect in 2014.
Ultimately, on 30 September 2024, the New South Wales Supreme Court ordered at [159] and [160] as follows:
The plaintiff’s Further Amended Notice of Motion is to be dismissed with costs.
It may be that an order ought also be made that the proceedings be dismissed. That is a matter about which the parties ought confer. Therefore I direct the parties to submit to my chambers within 14 days agreed short minutes of order to give effect to these reasons or, if not agreed, competing short minutes together with written submissions limited to two pages as to why orders in accordance with that party’s short minutes are to be made.
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