Date: 19990624 Docket: C943120 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: WELLINGTON BOYES PLAINTIFF AND: DR. JOSEPH FRANK SCHWEIGEL DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE HARVEY Counsel for the Plaintiff: D.G. Sanderson, Q.C. and R.D. Lee Counsel for the Defendant: W.J. McJannet and B.J. Norell Place and Date of Hearing: Vancouver, B.C. April 20, 21, 22, 23, 26 and 27, 1999 [1] This is a case of alleged medical malpractice. [2] Pursuant to the agreement of counsel, the trial was restricted to the determination of two issues described in the opening statement by counsel for the plaintiff as being: (a) whether Dr. Schweigel met the standard of care required of an orthopaedic surgeon in 1988 in his treatment and advice with Mr. Boyes; and, (b) whether Mr. Boyes' claim is barred by the Limitation Act, R.S.B.C. 1979, c.236. [3] Following conclusion of the plaintiff's case, counsel for the defendant applies under Rule 40(8) for an order that the plaintiff's action be dismissed against the defendant because it is time-barred pursuant to the said Limitation Act. [4] The issue before me, therefore, is whether this claim against the defendant for negligence is barred by the said Act. [5] The relevant provisions of the Limitation Act, R.S.B.C. 1979, c.236 are as follows: 6. (3) The running of time with respect to the limitation periods fixed by this Act for an action (a) for personal injury; ... is postponed and time does not commence to run against a plaintiff until the identity of the defendant is known to him and those facts within his means of knowledge are such that a reasonable man, knowing those facts and having taken the appropriate advice a reasonable man would seek on those facts, would regard those facts as showing that (i) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success; and (j) the person whose means of knowledge is in question ought, in his own interests and taking his circumstances into account, to be able to bring an action. (4) For the purpose of subsection (3), (a) "appropriate advice", in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require; (b) "facts" include (i) the existence of a duty owed to the plaintiff by the defendant; and (ii) that a breach of a duty caused injury, damage or loss to the plaintiff; ... [6] The Limitation Act, R.S.B.C. 1996, c.266 has identical operative language, but the numbering has been changed. It reads: 6. (3) The running of time with respect to the limitation periods set by this Act for any of the following actions is postponed as provided in subsection (4): (a) for personal injury; ... (4) Time does not begin to run against a plaintiff with respect to an action referred to in subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the plaintiff's means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that (a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and (b) the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances into account, to be able to bring an action. ... (5) (b) "facts" include (i) the existence of a duty owed to the plaintiff by the defendant, and (ii) that a breach of a duty caused injury, damage or loss to the plaintiff, (6) The burden of proving that the running of time has been postponed under subsections (3) and (4) is on the person claiming the benefit of the postponement. [7] The two years proscribed by s.6(3) have passed. [8] The issue is whether the plaintiff, who brought this action on June 24, 1994, has discharged the burden of proving that the running of time has been postponed here until at least June 1992. [9] The sequence of events requiring consideration in relation to this issue are as follows: (1) the plaintiff is presently 45 years of age. At the material times, he was employed as a peace officer with the Royal Canadian Mounted Police, assigned to the Vancouver Airport Detachment of the Force. His duties included investigation and enforcement of provincial and federal statutes, complaints of the public, bomb threats, including the inspection of facilities and aircraft for explosive devices. He was a trained explosive devices technician. While a member of the Vancouver Airport Detachment, he had a special interest in criminal investigation often volunteering for such work. Since January 1994, he has been assigned to the Burnaby Detachment of the R.C.M.P. He has a Grade 12 education which has been supplemented from time-to-time by the taking of a number of courses in connection with his employment as a peace officer; (2) the plaintiff suffered ongoing back pain following his involvement in an accident in 1979, while in the course of his duty. In 1988, he was referred to the defendant by his family physician. The plaintiff attended upon the defendant on two occasions in 1988, being on May 4th and June 15th of that year; (3) the defendant's diagnosis was such that he recommended at that time surgical intervention in the form of a laminectomy (the Gill procedure) and a fusion at the L-5 level of his spine, the procedures to be performed in the course of one operation; (4) the plaintiff says in the course of the attendance or attendances upon the defendant (he is unsure whether there were two attendances), the defendant informed him to this effect: "I know what is wrong with you - I can fix it. I can make 90% of your pain go away. In a year, you'll hardly remember you had an operation." He recalled Dr. Schweigel being confident and sure of the problem and what he intended to do to remove the pain; (5) on August 29, 1988, the defendant performed a double laminectomy at the L-5 level (the Gill procedure). For the purpose of determining the issue under consideration, it is not necessary to consider the evidence related to how the decision was made to limit the surgery performed on August 29, 1988 to the laminectomy. Such evidence relates to the standard of care issue; (6) some two weeks after the surgery, the plaintiff's pre-surgery symptomatology returned, including that related to the back and legs; (7) in the course of the next four years, approximately, in addition to the ongoing care provided by his family physician, the plaintiff was referred by that physician to a number of medical specialists. In addition to attending upon these medical specialists, by whom he was examined, the plaintiff underwent x-rays and other sophisticated testing procedures, including discograms. He also attended upon the defendant in April 1989. On June 6, 1989, the defendant applied a body-cast to the plaintiff which cast was removed on June 20, 1989. Following this attempt to stabilize the plaintiff's lower back, the defendant informed the plaintiff there was nothing more surgically which could be done for him. Included in the medical specialists who saw and examined the plaintiff during this time were an anaesthesiologist, a psychiatrist, two neurosurgeons, and an orthopaedic surgeon; (8) the plaintiff says that during this time no medical specialist who saw and attended to him suggested to him that the surgery which was performed - the Gill procedure - was improperly done or was the incorrect procedure in the circumstances of his symptomatology. They could have done so but they were not asked by the plaintiff or anyone on his behalf; (9) on January 14, 1992, the plaintiff was referred by his family physician to Dr. Leete, an orthopaedic surgeon practising in Campbell River, British Columbia. Following the examination of the plaintiff at that time, and after consideration of the materials available, Dr. Leete, in due course, suggested that a spinal fusion be performed and requested of the plaintiff's family physician that a lumbar discogram be obtained to confirm, or as the case may be, the integrity of the L-3-4 level. The discogram was duly obtained and considered by Dr. Leete. Dr. Leete interpreted the discogram to show the plaintiff to have a degenerative disc at this level and concluded this effectively ruled out any possibility of the plaintiff having any significant relief from an L-3 to sacrum fusion; (10) on November 17, 1992, the plaintiff saw Dr. Leete at which time Dr. Leete says he discussed these developments with him and his opinion not to proceed with spinal fusion concluding with the advice that the plaintiff would have to try and live within his discomfort. It was during this discussion the plaintiff says Dr. Leete first mentioned the saying, "when you have a Gill, you end up in a dill". Dr. Leete agrees having said this to the plaintiff but cannot remember when this occurred. For the purpose of determining the issue before me, I accept it was said by Dr. Leete during the November 17, 1992 consultation. In his testimony at trial, Dr. Leete identified the author of the saying and its meaning. Earlier in his career, he was associated in practice with an orthopaedic surgeon whom he described as the leader of the profession of that day. It was this person who was the author of the statement which, in its fuller meaning, is that when a surgeon performs the Gill procedure, he ends up in a dill - in a pickle. In this perspective, Dr. Leete led the plaintiff to understand with his symptomatology prior to surgery, if you perform a Gill and it is not successful, the condition of the spine is compromised and you may be left with no further alternatives. The plaintiff says it is not until November 17, 1992, by reason of what Dr. Leete informed him at that time, that he learned for the first time that Dr. Schweigel did not perform the standard or appropriate procedure and that there might be a possibility of a claim against him. [10] The essence of counsel for the plaintiff's submission, as characterized by him, is that until that time the plaintiff was not put on notice that he should have asked the question, "Did Dr. Schweigel do something wrong?". He submits it is not reasonable to expect the plaintiff to have taken any steps to inquire at all, given the actual facts, until Dr. Leete's conversation with him on November 17, 1992. Put another way, he submits the notional reasonable person, given the facts and circumstances as described, supra, would not have thought that Dr. Schweigel had done anything wrong until November 17, 1992. [11] Counsel for the defendant's submission is that there is no evidence which, in law, would support the postponement of the commencement of running of time for the limitation period beyond June 2, 1992, two years prior to the issuance of a Writ. She submits that the limitation period began in the summer of 1989 or, at the very latest, by February 1991. THE LAW [12] The law requiring consideration in this matter is, by agreement of counsel, found in a number of relatively recent judgments of the Court of Appeal of this province. They are: - Evans v. Vancouver Port Corp. (1989), 42 B.C.L.R. (2d) 174 (C.A.); - Frosch Construction Ltd. v. Volrich (1995), 7 B.C.L.R. (3d) 72 (C.A.); - Karsanjii Estate v. Roque (1988), 25 B.C.L.R. (2d) 263 (S.C.); - Karsanjii Estate v. Roque (1990), 43 B.C.L.R. (2d) 234 (C.A.); - Krusel v. Firth (1991), 58 B.C.L.R. (2d) 145 (C.A.); - Levitt v. Carr et al (1992), 12 B.C.A.C. 27; - Novak v. Bond (1998), 54 B.C.L.R. (3d) 181 (C.A.); - Vance v. Peglar (1996), 22 B.C.L.R. (3d) 251 (C.A.); - Walton v. Hicks (1995), 8 B.C.L.R. (3d) 78 (C.A.); - 355022 B.C. Ltd. v. CCS Properties Inc. (1995), 14 B.C.L.R. (3d) 107 (C.A.). [13] I comment, in passing, that the interpretation of s.6 by that court in medical malpractice cases has not been without difficulty. I refer in passing to the comments of Southin J.A. made as recently as 1996 in Vance, supra, at p.275, including particularly those where she says: ... the decisions of this Court on s.6 have added scorpions and snakes to the denizens of the moors. [14] With regard to the tests or components of s.6 as they have been referred to by the judges of the Court of Appeal, that which is to be primarily addressed in the circumstances of this case, is the first test or component, the means of knowledge test, referring to the means of knowledge of breach of duty. [15] In this perspective, counsel for the defendant submits the facts and circumstances in Karsanjii, supra - a means of knowledge case - most closely parallel the case here and the decision therein is applicable and determinative of the issue under consideration. [16] In keeping with the importance counsel for the defendant places upon the judgements of the Court of Appeal in Karsanjii, I consider it appropriate to review briefly the facts and circumstances of that case. [17] In 1979, Mr. Karsanjii, on the advice of his family physician, consulted the defendant orthopaedic surgeon for severe back pain. The defendant's diagnosis was scoliosis with limitation of flexion extension and lateral bending. [18] On December 7, 1979, the defendant performed surgery in the form of a laminectomy and fusion at the same levels of the lumbar spine. Some eight weeks after the surgery, Mr. Karsanjii suddenly experienced pain in the right buttock referring into the right leg. [19] On May 12, 1980, the defendant performed further surgery, a laminectomy, on the lumbar spine at a higher level. By December 1980, the defendant was of the opinion Mr. Karsanjii was suffering from a failed fusion in relation to the first surgery performed and considered a refusion should be done. [20] On May 19, 1983, Dr. Van Peteghem performed further surgery on Mr. Karsanjii's back which included Harrington rod stabilization. [21] An important aspect of Karsanjii is the conversation which Mr. Karsanjii says he had with the defendant before the performance of the first surgery on December 7, 1979. [22] Mr. Karsanjii says the defendant told him at that time, the following: I will be eighty percent better. I will be eighty percent better off. I should have no problems. I will come out with flying colours. He assured me the surgery would be successful. He guaranteed I will be much better off with surgery done. It (the surgery) more or less backfired the other way. [23] I turn now to those portions of the judgment of Mr. Justice Taylor and Chief Justice McEachern relied upon by the defendant. [24] At page 262 and following, Taylor J.A. stated: The test under s.6(3)(i) is neither entirely "objective" nor entirely "subjective". But it is subjective at least to this extent: (i) the information must have been available to Mr. Karsanjii; and (ii) it must have been information which a reasonable person in his position had reason to seek, whether or not such a person would have done so. It would not be enough that the information was available, unless Mr. Karsanjii was among those to whom it would be made available on reasonable injury. Nor would it, in my view, be enough that it was available to Mr. Karsanjii if he had no reason to seek it. By that I mean that the fact that a negligent act had, for instance, weakened his back, even though apparent x-ray or other medical inspection, would not be within his "means of knowledge" unless his back hurt, or he had some other reason which would cause a reasonable person to suspect it had been adversely affected. ... I think the key question is when could a person in Mr. Karsanjii's position first have discovered the relevant "facts" in the sense both that he would have reason to seek them out and, had he done so, would have learned them. [25] Mr. Justice Taylor then considered the reasons of Madam Justice Southin as she was then and said: I therefore take it to have been the view of the learned trial judge that the alleged "fact" or negligent treatment was within Mr. Karsanjii's "means of knowledge" only when he first received a medical opinion from which he ought to have suspected that he might have been negligently treated. The view would limit a person's "means of knowledge" more narrowly than the test which I would adopt. I have concluded that where, as here, the fact is that injury has been suffered - surgery which "backfired totally" - is known to the prospective plaintiff, and where a reasonable person in his position would have appreciated that this may reasonably have resulted from a breach of duty on the part of a person whose identity is known to the prospective plaintiff, and where the fact that it was so caused could reasonably be discovered by obtaining advice available to the prospective plaintiff (even though the assistance of a lawyer or other intermediary might be required in order to obtain such advice), then the relevant "facts" should be regarded as falling within his "means of knowledge" for the purpose of s.6(3)(i). I say this because to hold that time does not start to run in such circumstances until the prospective plaintiff happens to receive expert advice confirming that the relevant breach of duty is a possible explanation for the problem - let alone a probable or likely explanation would in my view unreasonably expose prospective defendants to "stale" claims. ... I do not suggest that the test is one of simple application in individual cases, but its application may in some cases be simplified by reference to the fact that the onus of establishing that the described "facts" lay outside the prospective plaintiff's "means of knowledge" before a particular date lies on the party claiming postponement. I think that time would start to run for the purpose of s.6(3)(i) when Mr. Karsanjii knew that the operations had failed and when a reasonable person in his position could by proper inquiry have discovered the reason - assuming, of course, as we must for the present purposes, that the reason was that the wrong procedures had been adopted or that the procedures adopted had been improperly carried out. I say that because so soon as he knew he had suffered damage, in the sense of a failed operation, which obviously might have been caused by negligence on the doctor's part - even though that was only one of two or more possibilities - he would have had reason to explore that possibility, and the "facts" referred to in s.6(3), presumably being capable of discovery by him on reasonable inquiry directed to a qualified medical person, would at that point be within his "means of knowledge" for the present purposes. It seems to me that the plaintiff's probably successful cause of action, if he had one, in respect of the operations of December 1979 or May 1980, could have been discovered by a reasonable person before February 1982, or, at least, that the evidence at trial would not suffice to establish that this was outside Mr. Karsanjii's "means of knowledge" before that critical date - this being the evidentiary burden which lies on the plaintiff in the present proceedings. [26] Chief Justice McEachern stated that he agreed with Mr. Justice Taylor as to what he had said regarding "means of knowledge" to which he added the following: In my view of s.6(3)(i) of the Limitation Act (the "Act"), the plaintiff's actual knowledge or lack of knowledge regarding his or her cause of action will not in itself extend a limitation period. Nor does this section contemplate or depend upon an actual investigation or obtaining medical, legal or other opinions. ... Thirdly, the fact that other doctors did not tell the plaintiff anything about a possible cause of action in this case is irrelevant. They could have done so but they were not asked. Also, obtaining an opinion one way or the other does not delay the commencement of the period although it may be evidence, unless it is based upon facts that would not have been available earlier to the adequately instructed reasonable person. This ubiquitous reasonable person must be deemed to be constantly reviewing the plaintiff's cause of action from the date when the cause of action later pleaded arose to the commencement of the action in order to conclude when a complete cause of action was within the plaintiff's means of knowledge. [27] Mr. Justice Taylor and Chief Justice McEachern differed on the interpretation of what was then s.6(3)(j) and is now s.6(4)(b). [28] The Supreme Court of Canada, in Novak v. Bond (May 20, 1999), recently considered s.6(4)(b) and rejected the approaches of both Mr. Justice Taylor and Chief Justice McEachern. In adopting a new test, Madam Justice McLachlan reiterated that s.6(4)(b) is only operative when it can be shown that the plaintiff had the necessary knowledge to commence an action and chose not to. As Mr. Boyes commenced the action within two years of obtaining the knowledge that he had a cause of action this section is not applicable. [29] It is submitted the only material difference between the facts and circumstances in Karsanjii and here, is the nature of the doctor-patient relationship. It is clear, here, that the doctor-patient relationship was terminated at the end of June 1989 when the defendant informed the plaintiff there was nothing more which could be done surgically for him, after which the plaintiff continued to seek medical assistance. In Karsanjii, by contrast, the plaintiff continued under the care of Dr. Roque. As this difference would only affect a determination under s.6(4)(b), Chief Justice McEachern and Mr. Justice Taylor are in agreement on the test to be applied in the circumstances of this case. [30] Before continuing I should make reference to Levitt, supra. In Levitt, a case quite different factually from the case at bar, the Court of Appeal revisited Karsanjii in relation, particularly, to the means of knowledge test. In relation to this test, the court stated: Turning, then, to s.6(3), it is "those facts within the plaintiff's means of knowledge" which the reasonable man submits to competent persons for appropriate advice as to whether the defendant owed the plaintiff a duty, and if so, whether the defendant breached that duty causing injury to the plaintiff. If the words "means of" were omitted from the phrase in question, the facts to be ascertained would be those the plaintiff actually knew - a purely subjective determination. The presence of these words does not render the determination of the factual basis for the controlling opinions a wholly objective exercise. In this respect what occurred in the United Kingdom is of some assistance. In 1963 the House of Lords declined to construe a statute so as to delay the running of time until a victim of an industrial disease knew of his injury: Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758. Parliament's response in the Limitation Act, 1963, was the progenitor of the Australian legislation most favourably regarded by the Law Reform Commission of this Province as its model for s.6(3) and (4). It may be taken that the draftsman's aim in the English Act was to provide the statutory equivalent of what Lord Reid at p.722 of his speech in Cartledge's case: If this were a matter governed by the common law I would hold that a cause of action should not be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as were reasonable in the circumstances. What Lord Reid thought of the statutory solution became apparent in his speech in Smith v. Central Asbestos Co., [1973] A.C. 518, at p.529, where he said the resulting English Limitation Act of 1963 had "a strong claim to the distinction of being the worst drafted act on the statute book". While this is a severe stricture indeed, considering the competition provided by taxing statutes, we do not think statutory language, at least that in British Columbia, was intended to impute knowledge to the plaintiff beyond what he could have discovered if he had taken steps reasonable in the circumstances, that is to say, his circumstances. [31] Following a review of the judgments in the Karsanjii decision the court went on to state: Having regard to the purpose of s.6(3) under the relevant language we conclude the facts following within the plaintiff's means of knowledge are, firstly, those actually known, and secondly, those which would become known if he took such steps as would have been reasonable for him to take in his circumstances. This is an adaptation of Lord Reid's view of what the common law would require, and we think this is all s.6(3) does require. [32] This appears to be essentially the test stated in Karsanjii. I refer to the judgment of Chief Justice McEachern in Vance, referring to the first test and his views as expressed in Karsanjii where, at page 69, he stated: I still subscribe to those views, and I find nothing in the subsequent decisions of this Court, such as Levitt v. Carr (1992), 66 B.C.L.R. (2d) (C.A.), which requires a different interpretation. In fact, in the former per curiam decision of a five justice bench, the Court said at p.69: Having regard to the purpose of s.6(3) and to the relevant language we conclude the facts falling within the plaintiff's means of knowledge are, firstly, those actually known, and secondly, those which would become known if he took such steps as would have been reasonable for him to take in his circumstances. [33] Lambert J.A. in Vance in the course of his analysis of the three tests in s.6(3), when referring to the means of knowledge test, stated: To the extent that this test may be thought to be different from the tests relating to this component considered by the members of the division which decided Karsanjii Estate v. Roque (1990), 43 B.C.L.R. (2d) 234 (C.A.), the Levitt test must be regarded as having over-ridden the Karsanjii tests and to have established the test which now be applied. [34] As I have stated, counsel for the defendant relies upon Karsanjii in support of her position. [35] She submits having regard to what the plaintiff says the defendant told him before the surgery was performed, with the return of his symptoms within two weeks and the continuation of such symptoms, with the facts that he knew and the steps a reasonable person would have taken to obtain the additional facts, would have allowed him to conclude an action against the defendant would have a reasonable prospect of success. [36] Counsel for the plaintiff attempts to distinguish Karsanjii, particularly on the facts found by Taylor J.A., on the basis that in that case there was a guarantee of success which was not made here. He submits that while the plaintiff admits the defendant told him the operation recommended would probably remove ninety percent of the pain, he did not say that the defendant told him the success of the operation was "guaranteed". [37] He submits further the defendant's statement to the plaintiff, "I can make ninety percent of your pain go away", in itself, is an indication that he knew there was a chance the operation might not be completely successful. I comment that in the same submission, counsel made no reference to the statement the plaintiff says followed that statement which was, "In a year, you'll hardly remember you had an operation". [38] In my view, it is not particularly useful to attempt to make a comparison with the actual words used in the two cases, but rather, to consider what would be the state of mind of the plaintiff here, in relation to what he says he was told by the defendant at the material time. In this perspective, I find that he believed the defendant knew what was wrong and what surgery was to be done by the defendant would "fix" his problems and, within a proscribed time - a year - he would hardly remember he had an operation. Whether one wishes to describe these statements cumulatively as a guarantee of success or not, I find they can reasonably in a cumulative sense, be taken to mean the expectation of a satisfactory result. In my view, if one yields to the temptation to make comparisons, the words used in the case at bar can be interpreted to mean as much a guarantee of success as those used in Karsanjii. [39] Insofar as the post-surgery events referred to, supra, the position of counsel for the plaintiff as previously stated, is that a reasonable person, taking into consideration what he says he was told by the defendant with regard to the surgery and its outcome, and the said events: (a) would not have thought that the defendant did anything wrong; (b) nothing that he was told by the numerous medical specialists, who attended and treated him, until he saw Dr. Leete, sufficed to put him on notice to make inquiries about whether the original surgery was appropriate in the circumstances; and, (c) the treatment he did receive from these doctors was complimentary treatment in his pursuit to try and resolve his back pain. [40] The logical extension of this submission seems to me to be that if, on November 17, 1992, Dr. Leete had not volunteered the comment, "when you do a Gill, you end up in a dill", followed by further comments as to the appropriateness of the surgical procedure performed by the defendant, the plaintiff, as a reasonable person, would have been able to continue to obtain "complimentary treatment for his back pain" until someone, probably another medical specialist, said something which would have caused him to take such steps as were taken, for example, following the Leete visit in question. When counsel was questioned as to how long complimentary treatment could be pursued in this manner, his response was, "until the plaintiff was faced with what he described as the 'ultimate limitation'" meaning thereby, six years. [41] It seems to me this submission flies in the face of the purpose of limitation in such cases and would give rise to stale claims. [42] The purpose of limitation in this perspective was commented upon by Chief Justice McEachern in Vance as follows: Perhaps it will be useful at the outset to state what I understand to be the reason why the law includes limitation statutes. The reason was well stated in the Report of the Ontario Law Reform Commission, Report on Limitation of Actions 9, 10 (1969), adopted by the British Columbia Law Reform Commission's Report on Limitations, (Project No. 6), 1974, Part II, General, at page 8: Lawsuits should be brought within a reasonable time. This is the policy behind limitation statutes. These laws are designed to prevent persons from beginning actions once that reasonable time has passed. Underlying the policy is a recognition that it is not fair that an individual should be subject indefinitely to the threat of being sued over a particular matter. Nor is it in the interests of the community that disputes should be capable of dragging on interminably. Furthermore, evidentiary problems are likely to arise as time passes. Witnesses become forgetful or die: documents may be lost or destroyed. Certainly, it is desirable that, at some point, there should be an end to the possibility of litigation in any dispute. A statute of limitation is sometimes referred to as an "Act of peace" ... Apart from the protection they give to potential defendants, limitation statutes enable the courts to function more effectively by ensuring that litigation is not started so long after the event that there are likely to be evidential difficulties. In addition, the commercial world is able to carry on more smoothly. The limitation statutes encourage early settlements so that the disrupting effect of unsettled claims on commercial intercourse is minimised. [43] I am not in agreement with the submission of counsel for the plaintiff related to the reasonableness of the plaintiff's conduct in the post-surgery period. Further, I do not accept counsel's submission that Karsanjii is distinguishable from the case at bar because, in that case, there was a guarantee of success not present here for the reasons I have stated, supra. [44] In keeping with the direction of the Court of Appeal in Karsanjii, in the circumstances here, I find the plaintiff as a reasonable person, should have appreciated that the result of the surgery performed by the defendant might have resulted from a breach of duty on the part of the defendant and could reasonably be discovered by obtaining appropriate advice. In the circumstances here, such advice could initially have been obtained from one or more of the medical specialists who attended and treated him. It seems apparent from what occurred, once the inquiry process was initiated by the plaintiff, he would have had no difficulty in obtaining the relevant facts and opinions thereon to support a law suit as having the reasonable prospect of success and the ability to bring an action. [45] I find that here the limitation period should be considered to have commenced, at the latest, by the end of 1989 and that, accordingly, the plaintiff's action is statute barred by the Limitation Act. "R.B. HARVEY J."