Wondering v knowing – at what point is a cause of action discoverable?

The Background

On 27 September 2018, Corey’s mother commenced an action against two radiologists and a general practitioner who provided antenatal care.  In 2020 the proceedings were amended to include Corey’s father as a second plaintiff and the Victorian Clinical Genetic Services Limited as a defendant.

Under Victorian legislation a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts:

1. the fact that the death or personal injury has occurred;
2. the fact that the death or personal injury was caused by the fault of the defendant;
3. in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.[1]

The Defendants argued that there were a number of possible points in time at which the first plaintiff knew or ought to have known the above facts, being:

1. around the time of Corey’s birth;
2. when the first plaintiff consulted Professor Tonge (a child psychiatrist) in September 2011, who told her that it was possible that Corey’s complex birth and subsequent life-threatening cardiac abnormalities and congenital laryngomalacia, had compromised the development of his brain;
3. during 2012 when she consulted a paediatrician who told the first plaintiff that Corey’s brain damage had been caused by a lack of oxygen ‘due to the way he was born’;
4. in 2013, when the first plaintiff was ‘attending her [business administration] course … [and] should have taken further action to investigate the possible “fault”’ of the defendants.

However, the first plaintiff did not seek legal advice about the matter until November 2016 at which time she was advised that she may have a claim for negligence. There was then some delay whilst Legal Aid funding was sought, and expert evidence was requested.

Findings

In the result the Court held that:

1. the first plaintiff’s claims against the third, fifth and sixth defendants only became discoverable in or shortly after August 2018 when her solicitor had a telephone discussion with an expert and therefore her claim against those defendants was commenced within time;
2. in any event, it was just and reasonable that the first plaintiff be granted extensions of time in order to allow her to pursue her claims against the defendants;
3. it was not just and reasonable for the second plaintiff to obtain an extension of time to pursue his claims.

The Court did not accept that shortly after Corey’s birth the first plaintiff knew of all three statutory facts, particularly that her personal injury or that suffered by Corey (which would give rise to the need for costs of care and the like) was caused by the fault of the defendants.

While the first plaintiff said that she believed that Corey’s heart condition should have been picked up in the antenatal ultrasounds, she also agreed with the characterisation of her state of mind at that time as amounting to ‘wondering’ why the heart defects were not picked up.  Such a generalised state of mind does not amount to knowledge of the ‘key factors giving rise to liability’.  The Court found that the first plaintiff’s failure to seek advice from a solicitor at an earlier time did not amount to any culpable omission on her part.

The Court held that the position was not markedly different in relation to the period after Professor Tonge advised the first plaintiff that Corey had a frontal lobe syndrome – namely, the period from late 2011 through to late 2012, or early 2013.

The first plaintiff’s state of mind remained one of anger and ‘wondering’ – albeit that it then related to an organic condition of the brain in circumstances in which brain damage had earlier been excluded by MRI investigation.  None of the doctors involved at the time seem to have been suggesting that anything culpable had occurred at the hand of any particular doctor or that investigation to that end was either called for or required.  The Court accepted that the first plaintiff seemed – not unreasonably – to have considered that Corey’s condition related to autism (later diagnosed), which many people might consider to be idiopathic, as well as potential factors connected to his early care.

In relation to whether an extension was appropriate, the first plaintiff’s loss was very likely significant, she had explained her delay in a full, forthcoming and reasonable way and, there could still be a fair trial in which all relevant witnesses seem to be available to be called and in respect of which central and significant documents were available to be considered and explained.

However, the Court considered that it was not just and reasonable for the second plaintiff to obtain an extension of time to pursue his claims just because it had otherwise been shown to be just and reasonable that the first plaintiff should be successful. There was no direct explanation by the second plaintiff of his reasons for delay.  In circumstances in which the delays involved were inordinate and there was both presumed prejudice and the potential for elements of actual prejudice, the Court did not grant any extension of time, albeit that the Court otherwise accepted that it was a case in which it was likely that there could be a fair trial.

The implications

The Court’s decision in relation to the discoverability provisions highlights that a mere “wondering” about why Corey’s pre birth defects were not picked up on the imaging did not meet the threshold of knowledge required to give rise to a cause of action.

The Court commented that, in circumstances such as the present, in which the first plaintiff has gone on to commence proceedings at a much later time after circumstances have significantly changed, as well as having received the benefit of expert legal and medical advice, it can be tempting to view earlier events through a rather critical lens. Indeed, the wording of the legislation seems to invite such a critical examination of events as well as a quizzical consideration of how it could be that steps and contentions that seemed to be relatively clear could not have been undertaken and brought to fruition at an early time.

The Court’s comment was that it was important that enquiries of that kind, while undoubtedly relevant, not distract from some of the features that suggestions of that kind tend to gloss over or assume.  In particular, it can be common sense and even reasonable for a person in difficult, distressing and fragile circumstances to be reticent to enter upon a legally focused examination of circumstances that might put at risk the continuity and combination of medical and other supports that are, at that time, desperately required.

Given the difference in results between the first and second plaintiffs in relation to an extension of time, this decision also highlights the importance of a reasonable explanation of the reason for delay in commencing proceedings, balanced against the prejudice to the defendants.  Interestingly, this balance swung both ways in respect of each plaintiff.

To read the decision in Moore v Escott [2022] VSC 353, click here.

Whilst the wording of the provisions allowing for an extension of time to commence proceedings in Western Australia is slightly different to the Victorian provisions considered in the Moore, WA Courts have found that to be aware of a matter which requires expert knowledge (ie. that the physical cause of the injury is attributable to the conduct of an identified person), it is necessary that a person should know of an expert opinion that is reasonably capable of being accepted.

[1] Section 27F of the Limitation of Actions Act 1958 (Vic)