Factors influencing the extensions of limitation periods

Medical defence organisations need to be careful about how they approach limitation defences, as made clear in the cautionary Court of Appeal decision in Hunt and Numurkah District Health Service v Holcombe [2018] VSCA 248. On its face, the patient in this case was well outside the relevant limitation period to bring his action against his former treating practitioners. However the Victorian Court of Appeal allowed the extension of time, and set out some important guiding principles as to how courts should exercise this discretion.

Facts

In 1980, a six-year-old Mr Holcombe was diagnosed with KTW syndrome, causing one leg and foot to grow longer than the other.

In November 2000, Mr Holcombe was referred to Dr Roland Hunt for treatment of a large varicose vein above his right knee, which was causing him pain. Dr Hunt advised Mr Holcombe that he could operate on his legs, alleviating him of his pain, the operation would take three hours and he would be walking within a week.

On 1 March 2001, the surgery was performed on Mr Holcombe at Numurkah Hospital District Health Service (the Hospital). Due to complications encountered in the right leg during the surgery, the left leg was not operated on. As a result of significant bleeding, pain and swelling post-operation, Mr Holcombe was unable to walk, resulting in him being readmitted to hospital on 7 March 2001, where he remained until 15 March 2001.

Mr Holcombe developed ongoing problems with his right leg and was advised in June 2006 by another practitioner that these problems were a consequence of the surgery conducted by Dr Hunt. By this time, Mr Holcombe was unable to continue his job due to the level of pain in his leg. Mr Holcombe was advised by his parents not to seek legal advice. Additionally, at the time, Mr Holcombe was undergoing significant issues with his family which involved litigation proceedings, resulting in stress-related problems.

In August 2015, Mr Holcombe developed cellulitis in his right leg, for which he was prescribed antibiotics by his General Practitioner.

Despite having antibiotics, Mr Holcombe was hospitalised six months later, on 4 February 2016, due to increased swelling and pain. The hospital did not advise Mr Holcombe of the ongoing risks of severe cellulitis and he was discharged with a prescription for more oral antibiotics.

In May 2016, Mr Holcombe suffered a second episode of cellulitis, which resulted in him having to be hospitalised for four days at two different hospitals, having been treated with antibiotics. 

In March 2017, Mr Holcombe again developed cellulitis and attended the Emergency Department at Shepparton Hospital, where he remained for three days and was treated with further antibiotics.

In April 2017, Mr Holcombe was again hospitalised for cellulitis. By this stage, Mr Holcombe’s leg was double the size it was in August 2015 (the first episode of cellulitis). It was only then that Mr Holcombe sought legal advice, in relation to the operation conducted by Mr Hunt.

Mr Holcombe stated that although he was aware in 2006 that the surgery conducted by Dr Hunt created problems with his leg, it was not until 2016 that he was aware of the effect that cellulitis would have on his life and future and that delayed his decision to obtain legal advice about his leg. Mr Holcombe was unaware that there were any limitation periods for pursuing a claim in medical negligence.

This case explores the considerations courts will take into account when deciding whether an extension of the limitation period for medical negligence should be granted.

At first instance

Mr Holcombe sought an application to grant an extension of the limitation period, pursuant to s 27 K(2) of The Limitations of Actions Act 1958 (Vic.). In Victoria, s 27 K(2) of the Act allows the court to extend the limitation period in which to bring an action, where the court considers it is “just and reasonable” to do so. Therefore, this power is discretionary in nature.

Section 27L of the Act outlines the factors to be considered when assessing whether an extension should be granted.

Initially, an Associate Justice of the Supreme Court of Victoria refused Mr Holcombe’s application to extend the period of limitation, noting that Mr Holcombe did not act reasonably and promptly in obtaining legal advice. The Associate Justice acknowledged that whilst the consequences of the outcome are serious, Mr Holcombe relied on the advice of his parents without conducting reasonable or independent enquiries, despite his ongoing pain and anger towards Dr Hunt.

Appeal

Mr Holcombe successfully appealed this decision in the Victoria Court of Appeal. The Court ruled in favour of Mr Holcombe to grant the extension, finding  that the Associate Judge erred in the exercise of a discretionary power to not extend the limitation period, and noting that it was so unreasonable and plainly unjust to deny an extension in consideration of the factors relating to the delay in obtaining legal advice.

The Court of Appeal’s decision

The Hospital appealed this decision. The Victorian Court of Appeal dismissed the Hospital’s  appeal, agreeing that it was unreasonable for the Associate Judge to not grant the extension of the period of limitation at first instance.

The Court of Appeal considered the following factors:

• Mr Holcombe’s injury was grave with the consequence being quite significant, affecting multiple facets of everyday life
• the reasons given by Mr Holcombe for his delay in issuing proceedings were reasonable in the circumstances, when considering the personal characteristics, knowledge and background of the particular applicant (in this case Mr Holcombe), therefore concluding that it is not a wholly objective test which is to be applied, and
• that the he presiding judge needs to consider the circumstances of a lay person i.e. an individual without any legal knowledge or training, and should avoid evaluating the person’s actions before obtaining legal advice through an adversarial legal prism.

The appellate (Justices Beach, Kaye and Niall) stated that the Associate Judge had erred in not considering the above factors. Therefore, the panel upheld the Court of Appeal’s decision.

Implications for limitation periods in medical negligence cases

While the powers set out on s 27K (2) of the Act are discretionary in nature, s 27L outlines the circumstances in which the court should consider when granting an extension of the limitation period, which are primarily objective considerations.

However, this case is significant in that it shows that Victorian Courts will include subjective considerations when weighing up whether the extension of time is just and equitable. These considerations include:

• the severity of the consequences of the negligence has had on the individual
• the reasons for the delay in issuing proceedings, having regard to personal circumstances, and the knowledge and background of the individual seeking the extension, and
• the consideration of the characteristics of a lay person in the community.

Any decision to raise and (more importantly) vigorously pursue a limitation defence should be tempered by a consideration of this decision. Mr Holcombe was well outside the limitation period to bring his action. However, this decision highlights the extent to which courts will exercise their discretion in extension applications.