Extending a limitation period.

A plastic surgeon allegedly failed to adequately inform her patient about risks associated with breast augmentation surgery, which failed.   However the patient did not file proceedings  until well outside the limitation period.  At first instance, the trial judge extended time pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld).  He found the surgeon’s capacity had to marshall a defence had not deteriorated  after the limitation period expired.   He found no additional evidence would have been available to the defendant even if proceedings had been commenced within the time prescribed by the Act.  The primary judge also assumed that the applicant was entitled to an extension of time unless the defendant established “some matter justifying the exercise of a discretion against the granting of an extension.”

The Court of Appeal held that any prejudice to the defendant should be assessed as at the date of the application.  The primary judge failed to make this assessment.  He had fallen into error by comparing the defendant’s capacity to marshall a defence at two separate points in time.  He had failed to consider the prejudice actually suffered by the defendant at the time of the application rising from the plaintiff’s delay in bringing proceedings and to the prejudice presumptively caused by the deprivation of the protections of the Act.  He ought not have required the plaintiff to establish sufficient grounds against granting of an extension, as the onus lay on the plaintiff.

The primary  judge’s discretion had miscarried.  It fell to the Court of Appeal to re-consider the application.  The plaintiff had not shown that a fair trial was likely despite the prejudice that had presumptively  and actually accrued  to the applicant by the date of the application.  In that case,  the application ought be refused.

Read the reasons for the orders made in Hertess v Adams.