One might conclude from the decision, that the Plaintiff, Mr Holcombe, presented as an honest, stoic and credible 42-year-old man, who had tolerated many years of pain and discomfort. However, as the Court concluded, the decision to extend a limitation period must be reasonable, as well as just. Synthesising all the relevant factors, the Court could not find that an extension of time was reasonable, and despite the unfortunate circumstances of Mr Holcombe, the decision as to justice could not only be assessed from Mr Holcombe’s point of view, but must also consider what is just for Dr Hunt and the Hospital.

Mr Holcombe had attempted to issue a medical negligence claim 16 years after his varicose vein ligation surgery, and 13 years after the expiration of the statutory limitation period. He had been diagnosed with Klippel Trénaunay Syndrome as a child and as a result he developed painful bilateral varicose veins in his legs.  In 2001, Dr Hunt, a general surgeon operated on him. However, the procedure was complicated by issues with bleeding and thus surgery was confined to the right leg. Post-surgery, Mr Holcombe developed severe pain, bleeding, inflammation and difficulty walking, which required ongoing treatment and management.

In May 2001, Mr Holcombe consulted a plastic surgeon who considered the surgery had been inappropriate for him. At this time, Mr Holcombe spoke with his parents about obtaining legal advice, which his parents advised against. In 2006, he attended upon the same plastic surgeon, who told him once again that the surgery should not have occurred. He also recommended Mr Holcombe change career to a more sedentary job and referred him to a lymphedema clinic. Mr Holcombe again spoke with his parents about obtaining legal advice, who were opposed to the idea.

In August 2015, Mr Holcombe developed his first episode of cellulitis. At this point, he spoke with his parents about obtaining legal advice, they again advised him against it. Mr Holcombe eventually obtained a legal opinion in February 2016. By this point, Mr Holcombe was requiring frequent hospital admissions for cellulitis. It was at this time that Mr Holcombe was informed of the limitation period relevant to any claim.

Whilst there are some differences between the Limitation of Actions Act 1958 (Vic) and the Limitations Act 2005 (WA), in relation to extensions of time to commence proceedings both require that consideration must be given to whether the delay in proceedings would unacceptably diminish the prospects of a fair trial or significantly prejudice the defendant. In this case, it was accepted that there would be presumptive prejudices because of the long delay, but no specific prejudice was asserted.

The Court considered that it was not reasonable that Mr Holcombe had delayed so long in obtaining legal advice. Whilst the Court took into consideration Mr Holcombe’s ignorance of the limitation period, it also considered the factors around Mr Holcombe’s deliberate decision not to commence proceedings. Given his pain, the advice of the plastic surgeon and the fact that he was so proactive with obtaining medical advice, he should have make his own independent enquires as to legal advice instead of relying on his parents.  

To read the full decision in Holcombe v Hunt and Numurkah Hospital District Health Service (2017) VSC 666click here.