Claim against Hospital – Application for extension of time to bring proceedings refused

Legal Directions

Shane Holcombe v Numurkah Hospital District Health Service & Roland Hunt [2017] VSC 666

This decision concerned an application by the plaintiff to the Supreme Court of Victoria for leave to extend the time in which he was permitted to commence proceedings which were otherwise statute barred, due to expiry of the limitation period of three years as prescribed by s27D of the Limitation of Actions Act 1958 (Vic) (the Act). The allegedly negligent conduct giving rise to an action for medical negligence against the defendants occurred almost 16 years prior to the filing of the application, which was around 13 years out of time.


The plaintiff underwent surgery to his leg in March 2001, when aged 26. The surgery was conducted by Dr Hunt at a hospital operated by the Numurkah Hospital District Health Service (collectively, the Defendants). After surgery, the plaintiff noticed increased pain in his leg.

In May 2001, the plaintiff consulted a plastic surgeon who told him that the treatment he received in March 2001 was inappropriate for his condition – in effect, he had not been properly advised by Dr Hunt.

The plaintiff spoke with his parents about obtaining legal advice. His parents advised against seeking legal advice on the basis of family experience and purported difficulties of taking legal action against doctors.

The plaintiff continued to experience pain in his leg. In 2006 (by which time the limitation period to commence proceedings had expired), he again consulted the plastic surgeon and received the same advice concerning the March 2001 treatment. The plaintiff’s parents again counselled against seeking legal advice.

In August 2015, the plaintiff developed his first episode of cellulitis, which was a potential complication anticipated by the plastic surgeon. Although his parents maintained their view that the plaintiff should not seek legal advice, on this occasion he decided to consult a legal practitioner, then commenced proceedings against the Defendants in 2016.

The Defendants maintained a defence that the plaintiff was out of time under the Act and, in the circumstances, the proceedings should be dismissed. However, the plaintiff applied for leave to proceed.

The key issue

The question for determination by the Court was whether it is just and reasonable to extend time, having regard to a series of factors prescribed by section 27L of the Act, which include:

  • the length of and reasons for the delay
  • the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendants
  • the time within which the cause of action was discoverable
  • the extent to which the plaintiff acted promptly and reasonably, once the plaintiff knew that the act or omission of the defendants might be capable of giving rise to an action for damages
  • the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

Argument and Decision

The plaintiff submitted that the Defendants did not suffer any actual prejudice, since the relevant hospital records were in existence, the necessary witnesses were available to give evidence, that steps were taken reasonably promptly to obtain legal advice after the condition worsened in 2015, and it was just and equitable to extend the time in the circumstances, as he was unaware of the limitation period until he sought legal advice.

Further, although accepting that the availability of records and witnesses to a degree reduced the impact of prejudice, the Defendants submitted that due to the inordinate delay in bringing the claim, they would suffer presumptive prejudice from the passage of time if the matter proceeded to trial. Further, the Defendants asserted that the potential cause of action was discoverable in May 2001 when the plaintiff received advice from the plastic surgeon if he had promptly sought legal advice at that time. They argued that that the plaintiff’s explanation as to the delay in obtaining advice did not satisfy the reasonableness requirement contemplated by s27L of the Act.

The Court held that synthesising all the relevant factors, it was not just and reasonable to grant leave to bring the proceedings. In doing so, the Court emphasised that, while significant, the potential for a fair trial should not override all other factors. In this matter, the plaintiff’s decision not to promptly obtain legal advice until early 2016 in circumstances where he had received the plastic surgeon’s advice in 2001 that the surgery was inappropriate and he was experiencing ongoing pain constituted unreasonable conduct, which weighed against granting leave to proceed out of time.


This decision illustrates that a Court will consider a range of factors in considering whether the limitation period should be extended. Ultimately, each case will turn on its own facts but in some instances, delay by the plaintiff will be fatal to the claim.

Authored by Margarita Ntostas, Senior Associate, Melbourne

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