West Australian Medical Negligence Law Blog

West Australian Medical Negligence Law Blog

Insights On Medical Negligence Issues From The Perth Area And Throughout Australia

I have been a lawyer for 21 years, during which time I have predominantly represented injured people in pursuing compensation claims. In the last 10 - 15 years, I have focused on medical malpractice / medical negligence law and particularly claims arising from negligent medical care. Read more

Time Limit for a Medical Negligence Claim: Court of Appeal generous as to extensions

Posted in Case Summary

Western Australia’s Court of Appeal in its decision AME Hospitals PTY, Limited v. Dixon [2015] WASCA 63, delivered on 27 March 2015, confirmed, particularly relevantly in the medical negligence claims area, significant scope for persons to bring claim outside the basic 3-year time limit for such claims arising since November 2005 and the introduction of the Limitation Act 2005.

To be permitted to bring claim  beyond the 3-year time limit, Section 39(3) the Limitation Act 2005 provided that the person wishing to bring claim must establish that when the 3-year time limit expired they were not aware of one or more of the following:

  1. The physical cause of the death or injury;
  2. That such death or injury was attributable to the conduct of the person against whom claim is sought to be brought; or
  3. The identity of the person against whom the claim should be brought, despite reasonable inquiry.

In the Dixon decision all three members of the Court confirmed that for ‘awareness‘ of the above facts to arise, there, in effect, had to be a solid foundation/justification for belief. It was not sufficient for a suspicion or even, it would seem, an ungrounded belief to be held.

President McLure (with whom Newnes J.A. agreed) confirmed that where the “awareness” relates to a matter for expert knowledge or experience this will arise only when an expert opinion, reasonably capable of being accepted by a Court and capable of establishing the relevant facts exists and is known by the person [41].

In practice therefore, in a medical negligence claim, to have awareness that an injury was “attributable to the conduct of a person” (the 2nd test above) will, in my view at least, almost inevitably require that an expert medical witness has expressed such a view and this has been made known to the claimant.  This is also likely to often be the case for full awareness as to the physical cause (an odd phrase) of an injury (the first aspect of awareness that may be lacking to qualify for a possible extension).

Buss JA in a separate judgment suggested that the necessary “awareness” must mean knowledge or belief “with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or otherwise.” In a professional negligence context, such as a medical negligence claim against a doctor or hospital, it is hard to envision this point being reached before the claimant has been advised to do so by their legal advisors/representatives.  In our case at least, this will almost always require that a respectable independent medical expert has confirmed shortcomings in the relevant care and that this was a cause of harm to the patient.

In practice, this means that there will often be good prospects in medical negligence claims, other than the most straightforward, for seeking an extension of time to bring claim outside the 3-year time limit, where a client (the patient) delays seeking legal advice or investigation of the claim until outside this 3-year timeframe from their initial injury, or where provision of the expert opinion does not occur until this 3-year time limit has expired. This is very generous indeed and good news for our clients.

Two factors do however still need to be borne in mind in this context, before we get too carried away (!), being:

  1. There remains a 3-year outer limit for any extension from when awareness of the relevant matters ought to have arisen. In other words, there needs to be some reasonable explanation put forward for substantial delay in looking into a claim and obtaining appropriate expert advice, etc;
  2. Further, capacity to seek an extension of time does not guarantee that it will be granted.  In particular, in the event that the doctor, hospital or other health professional can show prejudice because of the delay in a claim being brought, the Court remains perfectly able to refuse to grant an extension despite the discretion arising.

Somewhat disappointingly, the Court of Appeal did not provide any clear guidance in relation to a remaining difficulty with claims and figuring out time limits.  This is the uncertainty as to when the 3 year time limit begins.  This remains unclear because the meaning of Section 55(1)(b) of the legislation and what is meant by when the “first symptom, clinical sign or manifestation of personal injury, consistent with a person having sustained a not insignificant personal injury.”  This determines when the initial 3-year period begins to run. As can be gathered, the meaning of these words is far from obvious…

As I have observed previously, it is important to appreciate that the lack of such awareness at the 3-year limitation, expired point is mandatory. Bizarrely, if such awareness arises the day preceding this deadline, no power to grant an extension arises.

UK adopts Rogers + ‘patient driven’ test about risks disclosure for medical treatment

Posted in Case Summary, Cerebral Palsy, Contemporary Medicine

The UK has recently altered its position in relation to the important question of a doctor’s obligations to warn their patients concerning risks of treatment.

Preceding the decision in Montgomery v. Lanarkshire Health Board [2015] UKSC 11, delivered on 11 March 2015, the UK had long maintained its acceptance of the so-called Bolam principle, reiterated in the mid 1980s by its House of Lords decision in Sidaway, that the question of what information a doctor was obliged to disclose to their patient, concerning risks involved in proposed treatment was essentially a matter determined by the medical profession. It was a defence to any claim that a relevant risk had not been disclosed, to demonstrate that other reasonable doctors would not have informed their patients of such risk.

The Supreme Court in Montgomery reversed this position and adopted the position that has existed in Australia since 1992 and our landmark decision in Rogers v. Whittaker.

The position in the UK, as in Australia, is now that a doctor’s obligation to disclose information relating to proposed treatment, including as to its risks, is determined by the question of whether the patient would be likely to attach significance to it in deciding whether or not to proceed with such treatment. If the patient would be likely to attach such significance, the doctor is obliged to disclose such information including as to the risk.

The test is “patient driven” as it depends on whether they would consider the relevant risk or other information significant in making their decision, rather than being ‘doctor driven‘ by whether the doctor thinks that they ought to attach significance.

There is some irony in the UK altering its position, given Australia has moved away from such ‘patient driven’ position in relation to other non-advice aspects of medical care, by the Civil Liability Acts.

The UK case is also interesting for obstetric care more generally.

The risk about which it was found warning ought to have been given, was the risk shoulder dystocia may occur if Mrs Montgomery delivered her child by a ‘natural’ or vaginal birth. It was found that Mrs Montgomery would have attached significance to this risk if warned of it. This had not occurred and so such lack of advice was found to have been negligent.

Mrs Montgomery was relatively small and a diabetic. While neither of these factors were particularly rare, they did modestly increase the risks of difficulty if such a dystocia occurred.  Mrs. Montgomery’s evidence was accepted that if warned of the risk of shoulder dystocia, even though this was unlikely and unpredictable, she would have elected to give birth via an elective cesarean section rather than a vaginal delivery.  Interestingly, the Supreme Court reversed the trial judge’s conclusion on this, which had been that a warning as to the risk of shoulder dystocia would not have led to the mother electing to proceed via a cesarean delivery.

This is a very common scenario in day-to-day obstetric care. There are very many patients of small stature and diabetic [whether gestational or otherwise]. The case appears to establish that in the UK at least, such patients need to be warned of a risk of shoulder dystocia because it ought to be accepted that such risk may be of significance to the mother in deciding whether to proceed via a natural delivery or ‘elect’ to have a cesarean.

The facts are an excellent example of the difference between the Rogers test and the Bolam approach.

It is also an illustration of why the Rogers test has been so unpopular amongst some medical practitioners who, rightly or wrongly, say the emphasis on patient autonomy potentially leads to patients making ‘wrong’ or poor decisions based on a flawed assessment (or in truth weighting) of the risks relating to their treatment options.

Mules v Ferguson: peer defence overturned + patient wins!

Posted in Case Summary, Causation Issues

I read with interest the Queensland Court of Appeal’s recent decision in relation to this matter. The Court of Appeal by a 2:1 majority overturned the trial judge’s earlier rejection of this medical negligence claim.

The case involved allegations of negligence against a general practitioner for failing to refer a patient ultimately found to suffer from cryptococcal meningitis. The patient suffered a catastrophic outcome due to such meningitis, including loss of sight and hearing. Damages were assessed [provisionally] at over $6.7 million by the primary trial judge.

The trial judge concluded that the GP had been negligent in not completing a careful neck examination and inquiry as to the patient’s progress, when she attended repeatedly.

Nonetheless, the trial judge dismissed the patient’s claim on the 2 basis that:

  1. Causation: even had the GP done what she ought and completed a careful neck examination and inquiry as to the patient’s headaches, etc., in the particular circumstances, such further steps would not have raised sufficient concerns to result in the patient being referred for a neurological review/assessment in time to receive treatment avoiding her catastrophic outcome.
  2. Peer Defence: Although he concluded the GP was negligent and should have completed a careful neck examination and further questioned the patient, he considered such GP had made out a defence under theCivil Liability Act on the basis that she had acted in a way, which was widely accepted by peer professional opinion.

The case is interesting in that as far as I know it was the only Australian case in which a trial judge has found that a medical practitioner’s care was negligent, but nonetheless excused it on the basis of such “peer defence.” This struck me at the time as an odd conclusion: in a way, the trial judge accepted the GP should have done something, but because a bunch of colleagues wouldn’t have done it either (and therefore, not surprisingly, thought she had acted reasonably), excused her..  I hate this defence!

Pleasingly for the patient, the Court of Appeal overturned the trial judge’s conclusions on each of these 2 points.

The appeal primarily centered on a careful review/analysis of the evidence as to whether, had the GP completed the examination and further inquiry she ought, this would have triggered an early referral. By a 2:1 majority the members of the Court of Appeal concluded [contrary to the trial judge] that it would.

The trial judge had accepted that if such a referral had occurred, the patient would have acted on it expeditiously and treatment would have taken place which would have avoided the catastrophic injuries she suffered due to her meningitis.

The members of the Court of Appeal also overturned the trial judge’s acceptance of the “peer defence”.

Interestingly, for future reference, the decision makes clear that for such a peer defence to be made out, the medical practitioner’s experts must confirm that the doctor’s conduct on the facts as found, was in accordance with peer professional opinion. It is not sufficient for experts to simply make a broad sweeping conclusion or to do so based on the medical practitioner’s claims as to what the patient told them and what they observed (if such claims are then [as here] not fully accepted).

The case highlights that making out such a peer defence will be quite a difficult and complex evidentiary task for defendants and their advisors. Where there are important primary disputes as to what took place during the relevant consultations, etc., the defence team will need to ensure confirmation of support for a peer defence across the cross section of likely findings open to the judge. Such likely findings may not be something necessarily obvious prior to the commencement of trial.

Predictably perhaps, in my view it is appropriate that this defence is given narrow application, once a trial judge is convinced that care was negligent – the situations in which doctors should be excused for failing to show reasonable care, because of peer practices, should be rare indeed..

delay in cancer diagnosis: consequences unpredictable

Posted in Cancer Cases, Contemporary Medicine, Our Cases

I read with interest recent medical literature, reporting on research at Johns Hopkins, emphasising the role of a 3rd factor in cancer incidence.

Debate has traditionally focussed on the ‘environmental -v- hereditary’ nature of many cancers.  New research, as reported, has confirmed that ‘luck,’ bad or otherwise, appears to be an even more important factor.  Random DNA mutations during cell division have been found to explain 2/3 of cancers in adults.

Such research, emphasises the role of early detection in cancer care, given the unavoidability of luck, one way or another.

Apart from in cancer’s initial occurrence, several recent cases we have/are handling have emphasised the ‘luck’ element, not just in whether cancer arises in the first place, but additionally in its response to treatment and recurrence.

Sadly, at any time we handle 10 or more cases involving inappropriate delay in diagnosis of cancers.  The harm caused by such delay is often the growth and maturation/progression of the ‘missed cancer,’ often most importantly impacting on the statistical probability of such cancer responding to treatment – or recurring.

A couple of cases we have looked at in the last year have emphasised that whilst statistical information, based on staging of cancer at diagnosis, is often the best method for assessing the effect of an inappropriate delay in diagnosis and treatment, it needs to be remembered that individuals may or may not conform to such statistical predictors.

In the first case, given the type of cancer and its very early staging, statistically, our client should have had a very good chance of survival + so the delay of 12 months in diagnosis/treatment should not have caused significant harm.  Sadly, to the contrary, within months of engaging us, our client was found to have extensive metastatic spread and her outlook now is grim.  From a claim’s perspective, our independent oncologist confirmed that knowing what we know about the aggression of the cancer cells in this unfortunate patient, it remains unlikely that the 12 month delay made any difference: even with diagnosis 12 months earlier, it is likely her cancer would/had spread.

In a second case, the exact opposite occurred.  The type and staging of cancer at diagnosis was advanced and likely to be aggressive, with a resulting poor outlook for our client.  In contrast, diagnosis 2+ years earlier, at a significantly less advanced stage on statistical grounds should have resulted in a far better outlook.  On the other hand, our client has [thankfully] already survived 3.5+ years since diagnosis, without evidence of recurrence.  Our independent oncologist considered that in such scenario, again, knowing what we do, it is unlikely the delay in diagnosis has altered the client’s outlook.  Given the type of cancer, 3.5+ years without recurrence, put him in an excellent category + it appeared he is in the small statistical group defying the overall poor outlook from his stage of disease.  Great news for our client (though not for his claim: though I know which he prefers!).

All goes to show that these types of case, which are sadly reasonably common, require considerable work-up, not only to evaluate whether harm has followed any inappropriate (negligently caused) delay in diagnosis/treatment on a ‘population basis’ but also on an ‘individual basis.’

Botox + Dermal Fillers (+ IPL) – they may be more dangerous than you think!

Posted in Cosmetic Surgery (and Other Treatment), Our Cases

We have recently agreed to act on behalf of a client who has suffered significant irreparable facial scarring/disfigurement as a consequence of dermal fillers, she underwent earlier this year @ a slick, web-advertising, brochure wielding, ‘wellness’ clinic in Perth’s metro area (can’t you just picture the ‘world muzac’/running water + Buddha heads!).

We have now handled several such cases, including an even more serious case in which the patient was left with enduring face drop due to nerve damage during injection of filler to her upper lip area.

Despite assurances to the contrary, it seems the operator of the clinic performing the filler injection was not a registered nurse (though she may have been a nurse of some description/form at some earlier time). We are yet to find details of what her ‘medically trained’ qualifications entail….

Further, it appears the dermal filler she injected to our client’s face, which lead to repeated infections/abscesses, may well not have been a recognised, TGA approved product. A suggestion has arisen that instead, the clinic operator was buying filler + botox supplies online from destination unknown (no doubt at ‘competitive rates’).

Interestingly, because the operator was not at the relevant time a registered nurse, I understand it is difficult for AHPRA (the old Nurses Board) to act. Their jurisdiction is broadly limited to nurses.

The case is [yet another] cautionary tale about cosmetic treatment providers. Why this isn’t something governments regulate tightly is unclear. Why someone injecting foreign material into someone’s face – or irradiating their body (in IPL) isn’t seen as something needing close regulation is hard to fathom…

Apart from anything, I have difficulty understanding how the operators of such businesses, in contrast to properly qualified health professionals, can avoid a mandatory requirement of appropriate professional indemnity insurance…..

But perhaps, its just me..

Open Disclosure – demanding expectations, but are they ever met?

Posted in Contemporary Medicine

Courtesy of my colleague (and friend) Bill Madden, I note the NSW Government has issued a Policy Directive in relation to Open Disclosure, a copy of which can be found here.

I note with interest, the “MANDATORY REQUIREMENTS” of such policy:

1. Acknowledgement of a patient safety incident to the patient and/or their support person(s), as soon as possible, generally within 24 hours of the incident. This includes recognising the significance of the incident to the patient.

2. Truthful, clear and timely communication on an ongoing basis as required. 

3. Providing an apology to the patient and/or their support person(s) as early as possible, including the words “I am sorry” or “we are sorry”.

4. Providing care and support to patients and/or their support person(s) which is responsive to their needs and expectations, for as long as is required.

5. Providing support to those providing health care which is responsive to their needs and expectations.

6. An integrated approach to improving patient safety, in which open disclosure is linked with clinical and corporate governance, incident reporting, risk management, complaints management and quality improvement policies and processes. This includes evaluation of the process by patients and their support person(s) and staff, accountability for learning from patient safety incidents and evidence of systems improvement.

Selected emphasis by me of key points which in my experience are not embraced in WA, either public or private sector health care.  Don’t think I have yet had a patient who described the hospital/health provider’s response as set out at paragraph 2 above: more often = “evasive, avoidant, half-hearted and belated….”  I appreciate my experience (and my clients) are probably not a fair representation across the board.

Wouldn’t it be wonderful if this happened though!

 

Compensation for Pain and Suffering in Medical Cases, out of touch…

Posted in damages assessment

As I have observed from time to time, a previously common, now almost universal sentiment of disappointment is expressed by clients when advised as to the likely scale of compensation they would be awarded by the courts for their pain, suffering and loss of enjoyment of life due to negligently caused injury.

I have observed elsewhere the relative lack of growth in the sums awarded for such component to claims, as a consequence of legislative limits or deductibles via our Civil Liability Act (“CLA”) and relatively conservatism by our Court’s in their assessments.

Once again, as I have stated (ranted?) elsewhere, I am still waiting to see any evidence of how such CLA provisions have a corresponding benefit to the wider community, justifying their impact on claimants.

Bracket creep in the CLA deductible now means that claims of blatant, negligently caused harm causing serious enduring suffering face the very real possibility of entitling the victim to no compensation at all, or what they may, with good reason, consider paltry.  For example, a commonly assessed sum for enduring mild to moderate psychiatric suffering experienced by the parents of a baby dying during child-birth, due to negligent obstetric or midwifrey care, has been a figure in the order of $30 – $35,000.00.  With the application of the CLA deductible, this is reduced to $11 – 16,000.00.  Whilst it is critical to appreciate this is compensation for the parents’ suffering and not a value on the lost life, it can be immediately appreciated why so many clients see such an assessment for their loss, as insulting + in no way reparation for their suffering.

I note with interest the practice prevalent in the United Kingdom whereby its Court of Appeal periodically reassesses the amount that will be awarded for  non‑pecuniary loss aspect to claims.  For example I came across in passing, a press release indicating a 10%  increase in the amounts to be awarded for this head of damage with effect in relation to judgments after 1 April 2013.

In my view there is much to commend such a practice to reflect overall changing attitudes and expectations in the community as well as changes in the purchasing power of any given ‘symbolic’ compensation awarded to the claimant.

Paul v Cooke – High Court rejects timing difference as enough to prove causation

Posted in Case Summary, Causation Issues, Failure to Warn

The High Court recently dismissed the special leave application brought in this case by Ms Paul, seeking to overturn the New South Wales Court of Appeal’s decision rejecting her claim.

As may be known, the case concerned a delay in diagnosis of an intracranial aneurysm suffered by Ms Paul. She underwent a head CT Scan in 2003 and Dr Cooke, the radiologist, negligently failed to identify and therefore diagnose the aneurysm.  In 2006, following a further scan, the aneurysm was diagnosed. Sadly during surgery to remove the aneurysm it ruptured causing Ms Paul a stroke and serious injury.

For the purposes of the special leave application it was accepted that the risk of rupture/stroke associated with the operation Ms Paul underwent in 2006 was no different to the risk had she undergone surgery in 2003, as would have occurred had Dr Cooke not negligently failed to diagnose the aneurysm.

The New South Wales Court of Appeal had concluded that Dr Cooke’s negligence was not the cause of Ms Paul’s surgical complication. His negligence changed the timing of surgery but did not alter the risk associated with it. It did not matter that it could be fairly said that had Ms Paul undergone surgery in 2003, it was very unlikely that she would have suffered the rupture and stroke she did in 2006.  Dr Cooke had breached his duty of care, but was not responsible for the stroke.

The High Court rejected the application for permission to appeal from such decision (the special leave application), because its members, in essence, agreed with the Court of Appeal. There was not sufficient doubt to warrant granting permission to appeal.

There is now a clear distinction between diagnosis and treatment cases on one hand and failure to warn cases on the other in this important context.  In the latter, it is well recognised (and recently reaffirmed by the High Court in Wallace v Kam, [2013] HCA, 19) that a patient can succeed in a claim if able to show that had they been properly warned of the risks associated with treatment they would have delayed proceeding, even if ultimately such surgery or treatment was likely to occur and would involve the same risks as eventuated at the time of their operation. More must be shown in diagnosis/treatment cases. A negligently caused delay in surgery carrying the same risk is not sufficient for liability.

Paul v Cooke failed, apart from on general causation principle, by reason of the terms of section 5I of the NSW Civil Liability Act which provides that:

“a person is not liable in negligence for harm suffered by another person as a result of the materialization of an inherent risk.”

The New South Wales Court of Appeal rejected argument on Ms Paul’s behalf that this section was limited to materialisation of a risk associated with treatment provided by the negligent defendant. This section was interpreted as broad enough to exclude liability when the inherent risk that materialised, as occurred in the surgery performed by the team caring for Ms Paul in 2006, well after the negligent failure to diagnose by Dr Cooke.  Interestingly the WA equivalent provision, section 5P is differently worded from the New South Wales legislation and does seem to be limited to inherent risk associated with the defendant’s treatment.

Another Failure to Warn case lost (Odisho v Bonazzi [2014] VSCA 11)

Posted in Case Summary, Causation Issues, Failure to Warn

The Victorian Court of Appeal delivered its decision in relation to the Appeal in this case on 18 February 2014.  The Court of Appeal unanimously agreed to dismiss Ms Odisho’s appeal against the Trial Judge’s dismissal of her claim.

The case concerned an alleged failure to warn Ms Odisho of a very rare risk of thrombo-embolism associated with recommended gynaecological treatment for her heavy menstrual bleeding via tranexamic acid medication.  The Court of Appeal upheld the Trial Judge’s conclusions that in fact Ms Odishi’s thrombo-embolism was not caused by her use of this medication and in any event, although she was not warned of such risk, she had not established that had she been warned, she would have declined such recommended treatment.

The case was interesting to me in the following respects.

  1. The Court of Appeal left open the question of whether they would have overturned the Trial Judge’s conclusions that no duty to warn of the relevant risk arose, had they reached a different conclusion in relation to causation.  It is therefore a good example of the relatively low probability of a risk that may nonetheless be required to be disclosed.  Interestingly the fact that thrombo-embolic event was included as a rare side effect (in less than 1/1000) in MIMS was important in supporting a conclusion that a duty to inform the patient of this risk arose.  MIMS should now be on every Plaintiff lawyer’s desk, for reference in medication cases.
  2. The case is an example of the combined objective, then subjective aspects of enquiry to determine whether a duty to warn arose.  As established, the enquiry is initially whether a reasonable patient would attach significance to the relevant risk.  The disclosure obligation can then be increased if there are particular features of the patient in question, which suggest significance would attach to the relevant risk.  Members of the Court recognised that Ms Odisho was stated to have been anxious and concerned about treatment for her condition, though not that this proved she would have attached significance to the risk in question.
  3. Although already well established, the Court confirmed that whether or not provision of a warning was usual practice was not the issue in deciding whether duty to warn arose (see at [27]).
  4. The case is a good example of the limited utility of a Plaintiff’s bald assertion that if warned they would not have proceeded with given treatment.  As members’ of the Court stated “the exaggerated nature of the Appellant’s answers to the questions put to her on the issue of what she would have done had she received a warning well justified the Trial Judge’s rejection of this evidence.  When one looks at the whole of the evidence, including the evidence of treatment to which the Appellant was prepared to consent, like the Trial Judge, we are unpersuaded that an appropriate warning of the risk of pulmonary emboli would have made any material change to the events that occurred.”

The case is yet another example of the difficulty of proving causation in failure to warn cases where the risk is very small indeed.  Whilst breach of duty may be established, it is another thing to have confidence that a patient will establish causation unless there is good reason to argue that, despite the low probability of such risk, it would have been decisive in altering the patient’s decision to undertake the relevant treatment.

 

Extensions of Time: Court of Appeal find a way to make sense of section 41 Limitation Act (Barr v Farrell)

Posted in Case Summary

On 10 September 2014 the Court of Appeal, by a majority of 2 to 1, upheld appeal against a decision by Judge Bowden in the District Court rejecting the applicant’s request for an extension of time in which to bring claim under Section 41 of the Limitation Act 2005.

As I have commented previously, such section on its face [bizarrely] only permits an extension of claim for a child, outside the six-year time limit now set, if the Court is satisfied that the child’s guardian acted unreasonably in failing to bring claim within this 6 year time period.

In other words, if there is a good reason why claim was not brought earlier, no extension can be given – go figure!

In Barr’s case, the guardian’s failure to bring claim within the 6 years was because their [negligent] solicitor had advised them it was not necessary to do so and there was plenty of time.  They had expert medical evidence that the child’s care had been negligent, but were told there was no need to rush, as there remained plenty of time for the action to be brought.  This was due to a failure to appreciate that since Nov 2005, birth injury cases (even those relating to births prior to such time) had a ‘new’ 6 year time limit, rather than the old period for claim, which had been generally 6 years from when the child reached 18.

Judge Bowden’s decision seemed to follow the terms of such provision, finding that because the guardian had relied upon legal advice, they had not acted unreasonably and so no extension could be granted [they being presumably left to pursue claim against their negligent lawyer for wrongly advising them concerning the timeframe for claim].

Though unquestionably the right end result, the Court of Appeal’s decision required some ‘reasoning gymnastics.’

Justice Pullin concluded that the inquiry as to whether a guardian had acted reasonably or not was an objective question.  He concluded that the legal advice provided by the lawyer was not part of such objective circumstances that needed to be considered.  Rather the objective circumstances were the fact that severe injury had occurred and medical opinion had been obtained suggesting that the obstetric care was negligent and had caused such injury.  In these circumstances, Justice Pullin concluded that a reasonable guardian would have commenced proceedings and so the court’s discretion arose.

As Justice Murphy put it at [66] the circumstances upon which the decision whether a failure to initiate proceedings was unreasonable include “The nature and strength of the claim, the damages which were expected to be recoverable and any cost considerations which might reasonably bear upon a decision to sue in the particular circumstances of the case.  Medical reports which had been obtained by the plaintiff’s actual guardian would be admissible as relevant to, but not necessarily determinative of, the question of whether, objectively, it was unreasonable for a guardian of the plaintiff not to commence proceedings within time.”  He further stated at [67] “If, in the circumstances, it was unreasonable for a guardian responsible for the plaintiff’s welfare etc. and practicably capable of suing not to have sued within time, the minor is taken to have lost a valuable priority right in a situation where he or she was incapable of preserving the right for himself or herself.  In that event the discretion to extend time may be exercised.”

Interestingly such reasoning does not directly deal with the availability of an extension in the more common scenario where no expert opinion has yet been obtained within the six years (for instance because the parents have been too busy caring for their disabled child to give litigation priority prior to this timeframe expiring, or it is only then they are informed of a poor long term outlook for their child and then consider litigation).  I anticipate allegations in such scenario that the parent/guardian has acted unreasonably in not more promptly investigating a medical negligence claim before the six-year period expires.  Bizarrely, it will be in the guardian’s best interest to accept that they have acted unreasonably in not investigating earlier.

It is important to appreciate the unusual circumstances in Barr.  Expert opinion had already been obtained critical of the care provided and supportive of the fact that this had caused injury.  Nonetheless, in my view the decision encourages a view that the scope of the extension provision is broader than perhaps previously envisaged and there is an arguable prospect for extensions to be granted, where no expert opinion has been sought by the guardian within time or, though this is more controversial, where initial advice may not have supported criticism