Costantino v Hillier [2026] NSWSC 1073 (Link to Caselaw).
With thanks to Jennifer Hillier and to Rob Davis for drawing attention to this decision in relation to the Limitation Act 1969 (NSW). The judgment deals with a series of interrelated limitations issues raised for preliminary determination by the parties, against the background of six spinal procedures performed on the plaintiff by the defendant between 2002 and 2014. The plaintiff commenced proceedings in 2024.
It was not in dispute that the first to fourth surgeries were performed more than 12 years before the plaintiff commenced her proceedings. Given the interrelationship between the application made by the plaintiff under s 62A of the Act and the defendant’s contention regarding discoverability, the parties agreed that both should be determined together.
In relation to discoverability, the court held at [42]:
While I consider the matter to be finely balanced, I am not satisfied that the plaintiff ought to have known or discovered that the injuries she now claims to have suffered were caused by the fault of the defendant in the sense contemplated by s 50D(1)(b) of the Act at any point prior to her consultation with Dr Russell on 10 August 2021. As such, I am not satisfied that the causes of action arising out of any of the surgeries performed on the plaintiff by the defendant were discoverable before that date.
In relation to the extension of the long stop period under s 62B, the plaintiff drew attention to her medical condition, to the time taken by her lawyers to gather medical records and to the fact that she needed to obtain expert evidence supportive of her claim before it could be commenced. At [51] the court said:
While I accept that each of these matters contributed to the delay in commencing the proceedings, I am not satisfied that — even collectively — they provide an entirely satisfactory explanation for the two and a half years it took for the plaintiff to commence her proceedings after first consulting Dr Russell. In the context of a claim which — at the time of that consultation — related to events which had occurred well more than 12 years earlier, it was incumbent on the plaintiff to have moved as quickly as was practicable to commence any proceedings she might have chosen to bring, so as to minimise the prejudice that might be occasioned by what was already a very extensive delay.
In relation to prejudice, the fact that the first to fourth surgeries were performed between 15 and 21 years before the proceedings were commenced by the plaintiff means that the presumptive prejudice alluded to in the above extract will be particularly pronounced in this case. Moreover, it overlays what I am satisfied is more tangible prejudice in this case. Having discussed the prejudice issues, the court said at [64]:
I recognise that the injury which the plaintiff claims to have suffered as a result of what she says was the negligence of the defendant is significant. However, the prejudice caused to the defendant by the passing of time is such that I do not think it would be “just and reasonable” to extend the 12 year long-stop period to permit the plaintiff to bring — and require the defendant to answer — that claim in so far as the first to fourth surgeries are concerned.
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