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Just and reasonable

Emma Jane Plowman by her next friend Toby Plowman v Sisters of St John of God Inc [2012] NSWSC 376. Hoeben J.

Birth defects medical negligence suit commenced 21-odd years after birth in Geelong. Limitations of Actions Act 1958 (Vic) noted.

73 Section 27K permits a general application for an extension of the limitation period where it would be "just and reasonable to do so".

The meaning of "just and reasonable" was considered by the High Court in Harris v Commercial Minerals Limited (1995-1996) 186 CLR 1 at 14 where the Court said [of NSW legs]:

"After an applicant gets through the s 60I(1) gateway, he or she must satisfy the court that it is 'just and reasonable' (s 60G) to grant an extension of the limitation period.

"Under that provision, questions of what the applicant knew or ought to have known will often play a critical role in determining whether it is just and reasonable to extend the limitation period. It may not be just and reasonable, for example, to extend a limitation period if before the expiration of the period the applicant knew or ought to have expected most of the consequences of an injury.

"Unawareness of all the consequences may get the applicant through the s 60I(1)(a)(ii) gateway, but it will not guarantee a passage through s 60G."

74 By this observation, I take the High Court to be saying that even though the plaintiff might satisfy the majority of considerations in s 27L, she still has an onus of establishing that it is "just and reasonable" to extend the time.

This allows the Court to take into account a wide array of matters which might be relevant to the fairness of granting an extension, including but not limited to, the extent to which significant prejudice would arise and the extent to which a fair trial is likely.

If the plaintiff cannot discharge the "just and reasonable" test, then her application will fail.


121. The following facts are relevant to this application.

(a) The nature of the damage is brain damage at birth which has not been affected by events since birth.

(b) There is no evidence of actual prejudice.

(c) The contemporaneous clinical notes do exist and can be relied upon by both sides.

(d) Some notification was provided to the defendant on three occasions when copies of the clinical notes were requested by solicitors acting on behalf of the plaintiff.

(e) The conduct of the defendant in refusing, at least initially, to produce the clinical notes has contributed to the delay.

(f) The conduct of the applicant's parents in seeking and relying upon legal advice to the effect that the commencement of proceedings should be deferred until further information was obtained was reasonable.

(g) The applicant at all times remained mentally incapacitated.

(h) The cause of action only became discoverable when the plaintiff's solicitors learned of the possible negligence of the defendant after receiving the reports of Drs Harbord and Clements.

(i) The plaintiff acted promptly once in possession of the relevant evidence as to liability.

122. Taking all those matters into account, I am satisfied that the plaintiff has established that despite the extensive delay, a fair trial of her claim is possible. In that regard, the authorities make it clear that what is to be established is the likelihood of a fair trial not necessarily a "perfect" trial. It follows that I am satisfied that it is just and reasonable to extend the period of limitation applicable to the plaintiff's cause of action to 24 December 2010.


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