'Discoverability’ under s27K of the Limitation of Actions Act 1958 (Vic): when you know, you know

The Victorian Court of Appeal has dismissed an appeal by Dr Mark Waldron, who sought to overturn a decision by the County Court extending the limitation period under s27K of the Limitation of Actions Act 1958 (‘the Act’) in relation to a claim for damages for personal injuries arising from allegedly negligent medical treatment and management.

The decision[1] reinforces the position that knowledge of fault, when determining the date of ‘discoverability’ under the Act, must be actual knowledge of the claimant and something more than a ‘suspicion’ or ‘belief’ of some wrongdoing on the part of a defendant.

In medical negligence cases, particularly those for which the question of fault may not be readily apparent to a patient at first instance, actual knowledge may turn on receipt of relevant medico-legal expert evidence even where the relevant treatment or procedure may have occurred many years prior.

Limitation periods in Victoria

In Victoria, the ‘standard’ limitation period is 3 years from the date on which the cause of action is discoverable by the plaintiff.[2]

The Act provides that a cause of action will be discoverable on the first date a person knows:

• the fact of the occurrence of the injury/death has occurred;
• the fact the injury/death was caused by the fault of the prospective defendant;
• with regard to injury, the fact the injury is sufficiently serious to justify the bringing of an action or the cause of action.

The Act also prescribes that a person will be taken to have ought to know of a fact at a particular date if such a fact would have been ascertained by them had they taken all reasonable steps by that date to ascertain the fact with regard to their conduct and statements.

Time can be extended where it is just and reasonable to do so, and consideration is given to a range of matters including prejudice to the defendant by granting an extension of time.

Background

The primary claim was brought by Claire O’Callaghan, a patient (and incidentally ex-wife) of Dr Waldron. Ms O’Callaghan suffered a stroke in August 2012 which she claimed was caused by Dr Waldron’s allegedly negligent treatment and management between March 2005 and August 2012.[3]

Dr Waldron denied negligence and raised a limitation defence under s27D of the Act. Ms O’Callaghan applied to strike out the limitation defence and alternatively extend the limitation period under s27K in respect of the parts of her claim that would otherwise have been statute-barred.

In determining the primary application, the issue before the Judge at first instance was the date of discoverability – in short, when Ms O’Callaghan knew, or ought to have known, that her stroke was caused by the fault of Dr Waldron. The primary Judge accepted this was when Ms O’Callaghan had been relayed the contents of a medico-legal opinion by her solicitors some time in 2020.

In May 2022 Judge Tsikaris struck out the limitation defence and extended the limitation period for Ms O’Callaghan’s cause of action to 21 December 2020.

Appeal

On appeal, there was no dispute over the requisite elements of ‘discoverability’ under s27F(1) of the Act.

The issue to be determined was whether Judge Tsikaris had erred in respect of Ms O’Callaghan’s knowledge of Dr Waldron’s alleged fault.

Relevant to the question of knowledge were enquiries Ms O’Callaghan had made with a previous firm of solicitors in 2016, and whether that was sufficient to establish knowledge of fault for the purpose of the Act. Ancillary to that, was the question of whether Ms O’Callaghan ought to have known of the alleged fault if she had taken reasonable steps to ascertain fault at the relevant time.

Dr Waldron further challenged Judge Tsikaris’ decision on the basis that it was not reasonable or ‘just’ to extend the limitation period.

Decision

The Court dismissed the appeal.

As to grounds concerning the question of the date of discoverability, the Court found that:

• Judge Tsikaris was correct to find that the date of discoverability occurred within three years of the proceeding being issued, having regard to the meaning of ‘fault’ adopted in the NSW decisions of Baker-Morrison[4] and State of NSW v Gillett[5](and applied by O’Meara J in Moore v Escott[6]). In this instance, Judge Tsikaris was right to determine that knowledge arose when Ms O’Callaghan had been informed that she had an actionable claim against Dr Waldron, which was when she had been told about the contents of a medico-legal expert doctor’s opinion (as in Gillett).
• Knowledge of fault will turn on the facts and specific circumstances of each case and relevant party. In some cases, fault will be obvious, in others it may depend upon the receipt of expert opinion and advice.
• A suspicion or belief of fault is not the same as actual knowledge of the key factors necessary to establish that a matter is legally actionable.
• The Court had regard to Ms O’Callaghan’s state of mind and well-being when considering the question of whether she ought to have known of the alleged fault if she had taken reasonable steps to ascertain it at the relevant time. The Court found that her circumstances were such that she was not in a position to take steps that might have otherwise led to knowledge.

On the question of whether Judge Tsikaris had erred in determining whether it was reasonable and just to grant the extension under s27K of the Act, the Court upheld the first instance determination that there had not been a conscious decision by Ms O’Callaghan to let the limitation period expire.

The Court also observed that general prejudice to Dr Waldron did not weigh against the granting of an extension in circumstances where records and witnesses remained available, as they did in the present case.

Implications

The Court of Appeal’s decision reinforces that discoverability, particularly in cases where the question of fault involves matters of medical or technical evidence, will be a lower threshold for plaintiffs to meet. That may mean that actual knowledge of the factors necessary to establish that a cause of action exists and/or that circumstances are legally actionable may only crystallise upon receipt of expert evidence, and not at some earlier point in which it is established only a suspicion or grievance is held by a plaintiff.

The case of Baker [7] (an alleged birth injury claim) illustrates that, in some cases, the court is prepared to extend a limitation period by up to 25 years where further legal advice was received after expert evidence had been obtained. [8]

This may be particularly pertinent to medical negligence claims where the cause of an injury or condition involves a constellation of factors over time, as opposed to say a one-off procedure, although with the principle of open disclosure in health law, it may be a more nuanced consideration.

Ultimately, the question of fault involves a consideration of causation and parties will need to consider those factors early in circumstances where a limitation defence is raised.