Civil Procedure – Case Law – Vonhoff v Hillier [2024] NSWSC 1285

In the recent matter of Vonhoff v Hillier [2024] NSWSC 1285, the plaintiff, Mr Peter Walter Vonhoff, commenced proceedings against the defendant, Dr Terrence Hillier (an orthopaedic surgeon), alleging negligent treatment in relation to two operations on the plaintiff’s back.  

This is a medical negligence claim arising out of the treatment afforded to the plaintiff by the defendant as an orthopaedic surgeon in 2006 and 2010. 

By way of a notice of motion filed 5 June 2024, the plaintiff seeks orders extending the limitation period in respect of the causes of action in accordance with ss 62A and 62B of the Limitation Act 1969 (NSW) (“the Act”). The plaintiff also sought a declaration that he was a person under a disability and further that the limitation period should be suspended pursuant to s 50F of the Act. He no longer seeks those orders. 

The plaintiff claims damages from the defendant arising out of alleged negligence in the advice and performance of operative treatment on two occasions, being on 2 March 2006 and then on 14 May 2010. The plaintiff alleges that on both occasions he was advised by the defendant to undergo surgery on his back. He complains both about the information and advice given to him by the defendant leading up to and after the operations as well as the fact of the operations. 

The defendant has filed a defence denying the essential allegations raised by the plaintiff. In addition, the defendant says that the proceedings are statute barred having regard to s 50C of the Act. That is, the defendant asserts that the proceedings were commenced after the expiry of the relevant limitation period. 

In response to the pleading of the limitation period, the plaintiff filed a reply asserting that: 

1. his claims are not statute barred; 
2. his claims were not commenced outside the three year limitation period having regard to s 50D(1); and 
3. his claims were not commenced outside the expiry of any long-stop limitation period contained in the Act. 

In its consideration, the Court provided as follows:  

        Indeed, I note the following. 

1. The defendant is still alive and able to give instructions, as is apparent from the letters and instructions to the defendant’s experts. 
2. The original scans and imaging reports remain available. The experts on both sides have commented on these scans and reports. 
3. The defendant has not adduced evidence by way of his own statement so as to demonstrate what he now knows and remembers and what he might not know or remember. Evidence from a defendant that, because of the passage of time, he is unable to answer some of the allegations raised by the plaintiff might carry significant weight, but the defendant chose not to serve any statement setting out the evidence he might give prior to this application. 
4. Of course, he was not required to serve his evidence in the principal proceedings but he was afforded an opportunity to serve any evidence on which he might rely in response to the plaintiff’s application. 
5. Both parties have obtained expert opinions on breach and causation. Neither party points to any expert being unable to offer an opinion because of the passage of time. 
6. The defendant did not raise any particular damages issues, such as an inability to investigate the plaintiff’s claim for economic loss [at 109].  

Much thus depends on the significance of the absence of the defendant’s handwritten notes and the hospital records. Ordinarily the absence of such notes and records may be critical because it would be difficult to accept that any specialist could remember what happened at a consultation such a long while ago [at 110].  

However, the circumstances of this case are not the norm. Both parties have access to letters from the defendant sent to various GPs and the workers compensation insurer during the period 2006 to 2010. Each letter provides details of the symptoms described by the plaintiff at the particular consultation, treatment, recommendations, diagnosis and prognosis. The letters are not short on detail [at 111].  

Further, the reports of each operation are available, as are reports from the physiotherapist [at 112].  

There may be presumptive prejudice as the defendant may be unable to say what his notes might have revealed but it is difficult to accept that they would reveal much more than the detailed correspondence from the defendant throughout the period of the plaintiff’s treatment [at 113].  

Absent evidence from the defendant that his handwritten notes are likely to be much more extensive than the letters he sent immediately following the consultations, I would not infer that there is likely to be important evidence contained in the notes not referred to elsewhere [at 114].  

There is a form of presumptive prejudice but leaving aside what is not known about those documents which are no longer available, there appears to be no other prejudice to the defendant. He is in as good a position to defend the matter as he would have been many years ago (not that doing a comparison is the test) [at 115].  

Having regard to all of the factors set out in s 62B, I am satisfied that it is just and reasonable to extend the operation of the long-stop limitation period [at 116].  

I am satisfied that it would be just and reasonable to extend the long-stop limitation period to the date on which the proceedings were commenced, being 20 October 2020 [at 117].  

Ultimately, on 21 October 2024, the New South Wales Supreme Court ordered as follows:  

1. The long-stop limitation period for the commencement of the proceedings is extended to 20 October 2020. 
2. Those paragraphs of the amended statement of claim that purport to plead a cause of action in respect of the 2010 surgery are struck out. 
3. The plaintiff is to serve an amended statement of claim on the defendant reflecting these orders within 14 days. 
4. The matter is listed for further case management before me on 9 December 2024 at 9:30am.  
5. Costs will be the defendant’s costs in the cause. Should the parties seek any different order, that can be raised on 9 December 2024. 

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