Hogan v Thornley

[2025] NSWSC 640

Supreme Court

New South Wales

Medium Neutral Citation:

Hogan v Thornley [2025] NSWSC 640

Hearing dates:

21 May 2025

Decision date:

20 June 2025

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Pursuant to s 62A of the Limitation Act 1969 (NSW), the long-stop limitation period for the commencement of proceedings by the plaintiff is extended to 23 December 2020.

(2)   The issue of costs is referred to the Registrar.

Catchwords:

LIMITATION OF ACTIONS — Discoverability — Personal injury — When plaintiff “ought to know” facts — Medical negligence — Where plaintiff has been diagnosed with a non-functioning pituitary macroadenoma with symptoms including memory impairment — Whether there should be an extension of the long-stop limitation period — Whether just and reasonable to extend the limitation period

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5O

Limitation Act1969 (NSW), ss 50C(1), 50C(1)(b), 50D, 50D(1), 50D(1)(b), 50D(2), 62A(1), 62A(2), 62A(3), 62B, 62B(1), 62B(1)(a), 62B(1)(b), 62B(1)(c), Pt 2 Div 6

Cases Cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25

Doughty v Hillier [2024] NSWSC 1220

Pomare v Whyte (2019) 377 ALR 352; [2019] NSWCA 317

Rickhuss v The Cosmetic Institute Pty Ltd (No 4) [2023] NSWSC 666

Telstra Corporation Ltd v Rea [2002] NSWCA 49

Category:

Principal judgment

Parties:

Michael Joseph Hogan (Plaintiff)
Stephen Thornley (Defendant)

Representation:

Counsel:
D R Graham SC; M Robinson (Plaintiff)
A Horvath SC; K Holcombe (Defendant)

Solicitors:
Wyatts Lawyers & Advisors (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s):

2019/326641

JUDGMENT

1. HIS HONOUR: This is an application brought by Michael Hogan (the plaintiff) by way of a notice of motion filed on 29 November 2024, seeking an order that the limitation period for his commencement of personal injury proceedings against a medical specialist, to whom he was referred by his general practitioner, be extended nunc pro tunc; that is, that the plaintiff be permitted to retrospectively rely upon the initiating filing that otherwise was filed out of time, pursuant to the relevant provisions of the Limitation Act 1969 (NSW). The order sought is that it be extended to 23 December 2020.

The nature of the claim

2. Between December 1997 and 2016, the plaintiff consulted his general practitioner, Dr Martin Jaffe (Dr Jaffe), reporting certain symptoms: a deterioration of memory, low energy levels and general fatigue and tiredness. In consultations over subsequent years, he continued to report the same symptoms to Dr Jaffe.

3. In June 2003, Dr Jaffe referred the plaintiff to Dr Stephen Thornley (Dr Thornley), who is an endocrinologist, furnishing to him pathology results. The plaintiff was assessed by Dr Thornley on 23 July 2003 (their only consultation), who wrote to Dr Jaffe, “noting the plaintiff had abnormal thyroid function with a history of long standing lethargy, dyspnoea, hair loss, cold intolerance and a longstanding problem with memory” and advising that the plaintiff required further testing, review and a thyroid ultrasound.

4. On 11 August 2003, Dr Thornley emailed the plaintiff. The email was part of the tender bundle to this Court. It states:

“Dear Michael

The blood test show that the thyroid level has normalised. Suggest progress blood test with GP in 3 months and then at 6 monthly intervals. Will let you know when thyroid ultrasound result through.

Steve Thornley.”

5. The following day, the plaintiff replied, stating, “Great news Stephen”.

6. On or about 3 September 2003, Dr Thornley advised Dr Jaffe, following test results, that in his opinion the thyroid function tests were essentially normal, and with further advice as to treatment.

7. The plaintiff’s health steadily declined and on 20 April 2016 he consulted another general practitioner, Dr Jodie Parker, who arranged for him to have a CT scan on 31 August 2017 and an MRI on 2 September 2017. The CT scan showed a likely macropituitary adenoma (a pituitary macroadenoma), which was confirmed by the MRI. The plaintiff was referred to a neurosurgeon, Dr Ali Ghahreman. Dr Ghahreman referred the plaintiff to an endocrinologist, Dr Terry Diamond, who the plaintiff saw on 12 September 2017. In a letter of the same date to Dr Ghahreman, a copy of which is in evidence, Dr Diamond stated:

“He has been referred for assessment of an underlying endocrinopathy having recently been diagnosed with a pituitary macroadenoma. He has a striking history dating back to 2003 when he was probably misdiagnosed as having primary rather than secondary hypothyroidism and commenced on thyroxine. Since then his life has been a downhill spiral having developed memory loss, visual disturbance, balance disorder, weakness, profound lethargy, cold intolerance and erectile failure. The addition of thyroxine failed to improve his wellbeing.

He recently attended for a CT assessment to exclude post concussion injury having been an active NRL and AFL sports player. He stopped working one year ago due to recurrent infections and dizzy spells. The recent CT confirmed an invasive pituitary tumour.”

8. Dr Ghahreman removed the adenoma on 21 September 2017. On 22 September 2017, the plaintiff underwent further surgery to remove a suprasellar haematoma and on 1 October 2017, a craniotomy with evacuation of the haematoma. He was discharged from hospital on 3 November 2017.

9. The plaintiff consulted Wyatts Lawyers & Advisors (Wyatts) who filed a statement of claim against Dr Jaffe on 18 October 2019. It is the plaintiff’s case that, consequent to his impaired memory, he did not recall, and therefore did not instruct Wyatts, that he had also been treated by Dr Thornley. That came to the attention of Wyatts in January 2020, who brought it to the plaintiff’s notice in February 2020. By an amended statement of claim that was filed on 23 December 2020 (the ASoC) the plaintiff joined Dr Thornley, as the second defendant. The proceedings against the first defendant resolved on 10 October 2023. Dr Thornley filed a cross claim against Dr Jaffe on 7 May 2024.

10. The plaintiff filed a further amended statement of claim (the Further ASoC) on 8 March 2024 and Dr Thornley filed a defence to the Further ASoC on 6 June 2024.

11. In an affidavit by the plaintiff dated 20 March 2025 (the plaintiff’s affidavit), he described his injuries and disabilities thus:

“These include: an injury to my brain which has caused cognitive issues including memory problems; loss of vision in my left eye and significant diminishment of vision in my right eye; dizziness and balance issues; difficulty with sleeping; and overall reduced energy. I have also experienced psychological difficulties due to my ongoing cognitive issues, visual impairment and loss of energy. I used to suffer from cold intolerance but that is no longer a problem for me.”

12. The plaintiff pleaded that the risk of harm of a delayed diagnosis of secondary hypothyroidism and/or pituitary adenoma ought to have been foreseeable by a reasonable defendant in Dr Thornley’s position, that Dr Thornley was under a duty of care to take precautions against that harm and was in breach of it, as a result of which the plaintiff suffered injury, loss and damage. The plaintiff clarified in oral submission at the hearing of the motion that it is his case that the tumour existed (and was missed) at the time he was assessed by Dr Thornley.

13. In his defence to the Further ASoC, Dr Thornley pleaded s 5O of the Civil Liability Act 2002 (NSW); that he acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice, and that he did not incur any liability in negligence to the plaintiff. In further answer, Dr Thornley denied the claim pursuant to s 50C(1)(b) of the Limitation Act.

The relevant legislative provisions

14. Sections 50C(1) and s 50D of the Limitation Act which are in Pt 2, Div 6 of the Act, provide as follows:

“50   Limitation period for personal injury actions

(1)   An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire—

(a)   the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b)   the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note—

The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

…

50D   Date cause of action is discoverable

(1)   For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts—

(a)   the fact that the injury or death concerned has occurred,

(b)   the fact that the injury or death was caused by the fault of the defendant,

(c)   in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2)   A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3)   In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

…”

15. The power of the Court to extend the long-stop period is provided, relevantly, by ss 62A(1)-(3) and 62B(1) of the Limitation Act:

“62A   Extension of 12 year long-stop limitation period

(1) A person claiming to have a cause of action to which Division 6 of Part 2 applies may apply to a court for the extension of the 12 year long-stop limitation period applicable to the cause of action under that Division.

(2) The court is to hear such of the persons likely to be affected by the application as it sees fit and may, if it decides that it is just and reasonable to do so, order the extension of the 12 year long-stop limitation period applicable to the cause of action for such period as the court determines, but not so as to extend that period beyond the period of 3 years after the date on which the cause of action is discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.

(3)   If a court orders the extension of the 12 year long-stop limitation period for a cause of action under this section, that limitation period is accordingly extended for the purposes of—

(a)   an action brought by the applicant in that court on the cause of action that the applicant claims to have, and

(b)   section 26 (1) (b) in relation to any associated action for contribution under section 5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946 brought by the person against whom that cause of action lies.

…

62B   Matters to be considered in determining application for extension of 12 year long-stop limitation period

(1) In exercising the powers conferred on it by section 62A, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following—

(a)   the length of and reasons for the delay,

(b)   the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c)   the nature and extent of the plaintiff’s injury or loss,

(d)   any conduct of the defendant that induced the plaintiff to delay bringing the action,

(e)   the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(f) the time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.

…”

Affidavit evidence as to the delay in commencing proceedings

16. Affidavits by the plaintiff, the plaintiff’s solicitor Mitchell Broom and the defendant’s solicitor Paul Baram were read, subject to their availability for cross-examination, with the exception of an objection taken to para (39) in the affidavit of Mr Broom, which I have determined to be inadmissible.

The plaintiff’s affidavits and annexed material

17. The plaintiff’s material included an evidentiary statement that he made on 20 July 2021. The plaintiff explained in his affidavit that where he had no recollection of what happened during medical consultations and legal conferences or telephone calls, his statement was based on his belief about what happened after being shown and read:

“… relevant clinical records, emails, correspondence with Wyatts Lawyers and the file notes of conferences or telephone conversations I had with Wyatts Lawyers. Unless I say otherwise, I have accepted that the records or contents of the consultations, conferences, conversations or emails to which I refer are correct.”

18. As to the issue of delay, the plaintiff said that he had not recalled the involvement of Dr Thornley. He stated, with the above proviso, that on 25 October 2017, his wife contacted Wyatts. On 15 November 2017, he attended his first conference, which was with a Principal of Wyatts, as to the issue of whether there was a cause of action against Dr Jaffe. Annexed to his affidavit are the conference notes of the Wyatts’ solicitor and a letter from the Principal to the plaintiff, dated 27 November 2017, confirming the history he provided. Those documents refer to the plaintiff seeing Dr Jaffe, but do not mention that he was referred to Dr Thornley. The conference notes include the following: “Memory issues he considers to go back to at least 1998 when he was working for Franklins as a National Buyer where he worked until 2000”. A letter was sent to the plaintiff, dated 27 November 2017, confirming the history he provided, including that reference to his memory issues. The conference notes and letter refer to the plaintiff seeing Dr Jaffe, but do not mention that he was referred to Dr Thornley. In that letter, the plaintiff was advised, incorrectly, that:

“… there is a three year time limit from the date of the injury for commencement of any legal proceedings against your GP. If you fail to commence legal proceedings within the three year time frame then your right to bring a claim is lost forever.

Proceedings should be commenced before October 2020 but we will advise in this regard in due course.”

19. The letter went on to request the plaintiff’s signed medical authorities, so that Wyatts could obtain his clinical records. On 27 November 2017, the plaintiff signed a costs agreement with Wyatts.

20. On 1 December 2017, Wyatts wrote to Dr Jaffe’s medical practice requesting “copies of all clinical notes, reports, discharge summaries, operation records, letters of referral and X-ray reports” relating to the plaintiff’s attendance upon the practice. Those documents were produced on 13 December 2017 (Dr Jaffe’s first records batch). Mr Broom stated, “A review of those records did not disclose any previous referral to an endocrinologist”.

21. A photocopy of the notes is in evidence. There are 194 pages in all. 15 pages are handwritten clinical notes, covering the period from an illegible date in 1985 to 16 February 2015. There are eight pages of correspondence and 164 pages of (typed) pathology results. On my examination of the clinical notes, there are two barely legible references to “S”, followed by a name that is consistent with “Thornley”, but not legible as such. One of the references is preceded by “D/W”, which, as noted by Adjunct Clinical Associate Professor Peter Clyne (A/Prof Clyne), is an abbreviation for “discussed with”. The context is clearly pathology results, apparently concerning the plaintiff’s medical complaint. The dates for the two entries appear to be 28 May 2003 and 3 September 2003. Three sets of results in the pathology notes identify “Dr S Thornley” as the source of the referral, all indicating a request date of 23 July 2003 and a collection date of 8 August 2003.

22. On 4 April 2018, the plaintiff attended a conference with Wyatts and a barrister, Kelvin Andrews. Following the conference, the plaintiff attended appointments with medical experts, including a consultant endocrinologist, Professor John Carter, on 30 August 2018. It is apparent that Prof Carter was briefed with a copy of Dr Jaffe’s first records batch. In a letter dated 3 September 2018, Prof Carter wrote to Wyatts:

“… you have asked … whether a diagnosis of secondary hypothyroidism rather than primary hypothyroidism should have been made. The quick answer to that is that I would expect an endocrinologist to have considered the possibility of secondary hypothyroidism, if not initially in 2003, then at some stage fairly soon afterwards (in view of the similar thyroid results over the next few years). However, the interpretation of these TFTs was not straight forward and I could understand a general practitioner believing that the diagnosis was primary hypothyroidism in view of the fact that the serum TSH level was virtually always elevated.

It would appear that [the plaintiff] had features suggestive of low testosterone levels with loss of secondary sexual hair associated with relevant symptoms such as reduced libido and tiredness and this, I would have thought, should have raised the possibility of a diagnosis of hypogonadism. If this condition had been considered/diagnosed, I would then have expected that the TFT abnormalities would be re-interpreted as reflecting secondary rather than primary hypothyroidism. If these possibilities had been considered, he most likely would have ended up having a CT or MRI scan of his brain which almost certainly would have revealed the pituitary tumour.”

23. The plaintiff was referred to a consultant general practitioner, A/Prof Clyne, to obtain an expert opinion as to whether there was evidence of an abrogation of Dr Jaffe’s duty of care to the plaintiff (causation). A/Prof Clyne was also briefed with a copy of Dr Jaffe’s first records batch. In his report, dated 25 June 2019, A/Prof Clyne canvassed the history he has been provided by Wyatts and a history he obtained from the plaintiff; neither included a disclosure that Dr Jaffe had referred the plaintiff to Dr Thornley.

24. A section of A/Prof Clyne’s report is titled, “Chronology of Events”. It is apparent from the preamble that A/Prof Clyne refers to Dr Jaffe’s first records batch which included hand-written clinical notes:

“The following chronology reflects events but is not intended to be an exhaustive listing. Information obtained from Dr Martin Jaffe’s clinical records is limited by its generally poor legibility.”

25. The summary that follows in A/Prof Clyne’s report includes a reference to the results of “Blood tests ordered by Dr S. Thornley” that were received on 8 August 2003. The entry in A/Prof Clyne’s report reads: “8^th August 2003 Blood tests ordered by Dr S. Thornley return the following results”, followed by the results.

26. Under the heading “Analysis and discussion”, A/Prof Clyne was critical of the investigations that Dr Jaffe performed of the plaintiff. He concluded the section stating the following:

“The evidence of the clinical record does not support a contention that Dr Martin Jaffe took a proper, focussed history, performed an appropriate, focussed examination, investigated appropriately or referred to an appropriate specialist.

Therefore, on the balance of probabilities, [Dr Jaffe]:

•   Failed to take an adequate history

•   Failed to perform an appropriate and adequate physical examination

•   Failed to investigate properly, and

•   Failed to refer.” (emphasis in original)

27. A/Prof Clyne repeated his opinion that Dr Jaffe had “failed to refer the plaintiff to an appropriate specialist” five more times in his report. It follows that it appears from A/Prof Clyne’s report that he had not appreciated that the reference to “Dr S. Thornley” requesting blood tests was to an endocrinologist.

28. There is no evidence of Wyatts acting upon the reference to Dr Thornley in the clinical records, as noted in A/Prof Clyne’s report.

29. The plaintiff stated in his affidavit:

‘On 7 August 2019, my solicitors advised me that Professor Carter had reviewed the report of Professor Clyne and confirmed his preliminary opinion that I would have had a better outcome had my tumour been diagnosed earlier, and many of the injuries I suffered from since 2003, such as memory loss, low energy, fatigue, tiredness, visual disturbance, cold intolerance and difficulties with my balance could have been avoided had the tumour been detected and removed in 2003. I understood that those injuries had been caused by Dr Jaffe and that they were sufficiently serious to start a legal case against Dr Jaffe.”

30. As noted, on 18 October 2019, Wyatts commenced proceedings against Dr Jaffe.

31. On 8 January 2020, the solicitors acting for Dr Jaffe produced additional records to Wyatts, which, they explained, had been overlooked due to an administrative error which was correspondence between Dr Jaffe and Dr Thornley (Dr Jaffe’s second records batch). It included a letter dated 23 July 2003 from Dr Thornley addressed to Dr Jaffe, in which he thanked Dr Jaffe for asking him to review the plaintiff “who presents with abnormal thyroid function”. In the letter, Dr Thornley noted that the plaintiff has a “long-standing problem with memory.”

32. On 10 February 2020, Wyatts phoned the plaintiff and informed him of their receipt of these records and that they included a referral to, and correspondence from, Dr Thornley, in July 2003. The plaintiff was asked whether he recalled that referral. A file note records:

“Michael asked where he was located. I checked the records – rooms at Miranda or Caringbah. Michael paused a moment as he tried to recollect and then said that he could not recall an appt with Dr Thornley (endocrinologist) in 2003.”

33. The following day (11 February 2020), the plaintiff emailed the solicitor at Wyatts who then had carriage of his matter:

“Currently, as I stated, I have no memory of attending an appointment with an Endocrinologist named Dr Steven Thornley in 2003. However when I attended an appointment at Professor Carter’[s] practice at Hornsby, under your instruction, he mentioned that the clinical notes showed that Dr Jaffe had discussed my case with an Endocrinologist around this time. He asked me whether I was aware of this, and I responded that I was not.

As of this time that is the only knowledge I have of any interaction between my case and an Endocrinologist, instigated Dr Jaffe. However, if you could send me his practice addresses at Caringbah and Miranda from that time, I will visit both buildings to see if that jogs my memory and report back to you”.

34. Wyatts lawyers advised the plaintiff that they would “obtain expert advice” as to whether Dr Thornley could be joined. On 23 October 2020, Wyatts briefed Duncan Graham SC. On 11 November 2020, the plaintiff attended a conference with Mr Graham by audio video link. Following a further report from Prof Carter, on 23 December 2020, Dr Thornley was joined.

The affidavits of Mitchell Broom

35. Mr Broom is the solicitor employed by Wyatts who has had the carriage of the plaintiff’s matter since 18 October 2021. He stated that the solicitors who were responsible for the matter before him were no longer with the firm. Two affidavits by Mr Broom were read, dated 29 November 2024 and 20 March 2025. In his later affidavit, Mr Broom referred briefly to Wyatt’s investigations into Dr Jaffe’s potential liability to the plaintiff. He gave a chronology of the firm’s awareness of the potential liability of Dr Thornley and the preparation of the case against him:

“38   On 8 January 2020, Dr Jaffe’s solicitors provided Wyatts with further clinical records concerning the plaintiff. This included material indicating the plaintiff had been referred to the defendant for specialist review on or around 23 July 2003. The further records also included the defendant’s correspondence to Dr Jaffe following the review of the plaintiff …

39   ….

40   On 10 February 2020, Wyatts contacted the plaintiff to discuss the further clinical records received on 8 January 2020. The plaintiff stated he had no memory of attending an appointment with the defendant in 2003, and sent an email confirming that …

41   On 11 February 2020, the updated clinical records of the defendant were sent to Mr Kelvin Andrews of counsel.

42   On 30 April 2020, a letter was sent to Associate Professor Clyne seeking a supplementary opinion based upon the further clinical records of Dr Jaffe.

43   On 12 May 2020, Associate Professor Clyne telephoned Ms Eunice Lee of Wyatts to discuss the further records, noting the possibility that Dr Thornley may be a further defendant.

44   On 12 May 2020, following the call from Professor Clyne, Ms Lee telephoned Mr Andrews in respect of the telephone conference with Associate Professor Clyne and to arrange a further telephone conference.

45   On 25 June 2020, a telephone conference was arranged for 1 July 2020 between Mr Andrews and Associate Professor Clyne.

46   On 29 June 2020, Wyatts was informed that Mr Andrews was unavailable due to illness.

47   On 21 July 2020, a telephone conference was held between Mr Andrews and Associate Professor Clyne.

48   On 10 August 2020, Associate Professor Clyne issued a supplementary report.

49   On 26 August 2020, a letter was sent to Professor Clyne seeking a further liability expert report with respect to the plaintiff.

50   Further, on 26 August 2020, a letter was sent to Professor Carter enclosing the additional clinical records provided by Dr Jaffe for his consideration.

51   On 27 August 2020, a telephone conference was arranged with Mr Andrews and Professor Carter to take place on 10 September 2020.

52   On 10 September 2020, the conference did not proceed due to a scheduling error in counsel’s diary.

53   On 15 September 2020, the telephone conference took place with Mr Andrews and Professor Carter.

54   On 13 October 2020, a letter was sent to Professor Carter to seek a further report.

55   On 17 October 2020, Professor Carter issued a further supplementary report.

56   On 19 October 2020, Professor Clyne issued a further supplementary report.

57   On 23 October 2020, Dr Duncan Graham SC was briefed.

58   On 11 November 2020, the plaintiff attended a conference via Zoom with Dr Graham SC and Mr Andrews.

59   On 12 November 2020, Mr Andrews provided a draft amended statement of claim joining Dr Thornley to the proceedings.

60   On 12 November 2020, the plaintiff provided the proposed amended statement of claim to the solicitors for Dr Jaffe.

61   On 18 November 2020, Ms Eunice Lee departed the firm, and Ms Tasahra Christian took over carriage of the file.

62   On 16 December 2020, Ms Tasahra Christian of Wyatts, emailed the solicitors for Dr Jaffe seeking their response to the proposed amended statement of claim.

63   On 18 December 2020, the solicitors for Dr Jaffe responded to Wyatts’ email of 16 December, advising they would seek instructions.

64   On 22 December 2020, Wyatts received a telephone call from the solicitors for Dr Jaffe, advising they were seeking instructions from their client urgently.

65   On 23 December 2020, the solicitors for Dr Jaffe provided their consent to the filing of the amended statement of claim.

66   On 23 December 2020, the defendant was joined to the proceedings by Amended Statement of Claim.”

36. As to any prejudice that an extension may occasion to Dr Thornley, Mr Broom stated that all of Dr Thornley’s records concerning the plaintiff are available and that Dr Thornley was able to respond to interrogatories that were served upon him on 12 May 2023.

The affidavit of Paul Baram

37. As noted, Mr Baram is the solicitor on record for Dr Thornley. He annexed various documents to his affidavit that are relevant to the defendant’s case, including the email from Dr Thornley to the plaintiff dated 11 August 2003 extracted at [4] above, and Dr Diamond’s letter to Dr Ghahreman dated 12 September 2017.

38. Mr Baram said that he obtained a copy of Services Australia’s records relating to the plaintiff between 1997 and 2020, which disclosed that Dr Thornley’s service to the plaintiff is listed with Dr Jaffe as an ordering provider, and the pathology ordered by Dr Thornley is listed, with him identified as an ordering provider. Mr Baram noted that the earliest request made of Services Australia for a claims history statement concerning the plaintiff by Wyatts was on 31 October 2019. Mr Baram stated:

“I have been litigating medical malpractice cases for approximately 26 years. I am not aware of any reason why the request to Medicare could not have been made in 2017.”

The evidence at the hearing

The plaintiff’s evidence

39. The plaintiff’s evidence suffered from him having little memory of relevant events. The plaintiff’s assertion that his memory was seriously impaired by his medical condition was not challenged by the defendant; it was not put, or suggested, to him that he was feigning a loss of memory. He said that he continued to have no memory of the email sent to him from Dr Thornley on 11 August 2003. He explained that Dr Thornley sent the email to his work email address, and that he lost those emails when his employment ceased, some years before 2017.

40. He did have a distinct memory of seeing Dr Diamond (who he saw on 12 September 2017), which prompted him to make inquiries as to a possible legal claim. He said of his consultation with Dr Diamond, who he knew to be an endocrinologist:

“He requested the oldest blood test results that he had from Douglass Hanly Moir. They sent it to him. It was a 2003 blood test. It popped up on his screen. In very quick succession he looked at it pointed at it, turned to me and shook his head and said, ‘There it is there’, which I assumed he was talking about some sort of marker for a tumour.”

41. The plaintiff was asked about the content of his email to Wyatts on 11 February 2020, in which he stated that Prof Carter had told him that, according to Dr Jaffe’s clinical notes, he had discussed his case with an endocrinologist around 2003. He was asked if he told his solicitors what Prof Carter had told him:

“A. I don’t know.

Q. Is it fair to say you certainly don’t have a memory of telling your solicitors?

A. I don’t have a memory. I probably didn’t understand the importance of what he said. I didn’t even know what an endocrinologist was.

Q. Well, you knew, didn’t you, that Professor Diamond was an endocrinologist, correct?

A. Sure.

Q. And you knew that it was Professor Diamond who had said to you that he thought that something had been missed in 2003 in blood tests, correct?

A. Yes.

Q. And when Professor Carter said to you that the clinical notes showed that in around 2003 Dr Jaffe had discussed your case with an endocrinologist so someone who was the same as Professor Diamond you didn't think to tell your solicitors?

A. Well, I have no memory of whether I did or I didn’t.”

The evidence of Mitchell Broom

42. The cross-examination of Mr Broom centred on when Wyatts first became aware of a possible claim in negligence. It was based on Wyatts’ records, since Mr Broom did not take over carriage of the matter until 18 October 2021; that is, 10 months after Dr Thornley had been joined. Accordingly, his evidence was of little utility to the issues in dispute.

The evidence of Paul Baram

43. The cross-examination of Mr Baram probed Mr Baram’s opinion that, effectively, Wyatts should have obtained a Medicare Claims Record at the outset. Mr Baram agreed that in order to make a request for a claims report, there must be a basis for the request, that Wyatts did not have a report on causation (from A/Prof Clyne) until 2019, and that the request for a claims report was made after proceedings were commenced against Dr Jaffe.

The plaintiff’s submissions

44. The plaintiff joined Dr Thornley in the proceedings by way of the amended statement of claim more than 17 years after the one occasion that Dr Thornley examined him, and accepted that he could only succeed on the application if, pursuant to s 62A(2) of the Limitation Act, he could establish that the date of filing of the amended SoC was no more than three years after the date on which the cause of action became discoverable; in other words, if he could establish that it was not discoverable on or before 23 December 2017, which is the date three years before he filed the amended SoC.

45. The plaintiff’s first argument in favour of that proposition was that:

“Because Dr Thornley does not plead any defence under s 50C(1), it may be assumed that the cause of action against him was not discovered or could not have been discovered earlier than three years prior to the commencement of proceedings against him on 23 December 2020 – that is, earlier than 23 December 2017.”

46. Secondly, since the plaintiff was diagnosed with a pituitary macroadenoma on 31 August 2017, underwent neurosurgery and rehabilitation thereafter and then instructed solicitors in November 2017, he could not, and ought not, to have known the facts required by s 50D(1) of the Limitation Act within about a month of instructing solicitors or within three months of having major brain surgery.

47. Thirdly, in determining whether the plaintiff took “reasonable steps”, the question is whether he personally took reasonable steps, and not the state of knowledge of his legal advisers: Rickhuss v The Cosmetic Institute Pty Ltd (No 4) [2023] NSWSC 666 at [172].

48. It was submitted that, in any event, the plaintiff was “a competent adult” and his solicitors were entitled to proceed on his instructions, which did not include him consulting an endocrinologist. As well, there was nothing in Dr Jaffe’s fist records batch to alert them to Dr Thornley’s involvement:

“The suggestion that the plaintiff’s solicitor should have pursued some speculative enquiry on the basis of obscure handwritten and typed references to “S Thornley” in the clinical records, without the benefit of client instructions, context, or any corroborating documentation, is misconceived.”

49. The plaintiff submitted that the evidence established that the plaintiff first became aware that he had a pituitary macroadenoma on 31 August 2017. He did not recall the consultation with, or involvement of, Dr Thornley in his treatment and was unaware of it until early 2020, when Wyatts asked him about the entries in recently disclosed further medical records of Dr Jaffe. Thereafter, he promptly instructed Wyatts “to investigate a claim against [Dr Thornley] and has at all times followed their advice and provided instructions without delay”.

50. The plaintiff said that it was unreasonable to expect that his solicitors should have investigated a reference in Dr Jaffe’s first batch of produced records to a “S. Thornley” or to have requested a Medicare Claims Record for the plaintiff when he had not given instructions of attending upon anyone other than Dr Jaffe in relation to his condition.

51. The plaintiff submitted that Dr Thornley would not be prejudiced by the delay in the proceedings, because he had access to the relevant records and correspondence.

The defendant’s submissions

52. The defendant submitted that the cause of action was discoverable for the first time on 12 September 2017 when Dr Diamond expressed a view that he was misdiagnosed in 2003. As to whether the plaintiff “ought to have known” that he had a cause of action against Dr Thornley at that time, the defendant conceded in oral submissions that it was “the trickiest limb” for the defendant; he had taken “reasonable steps” by immediately engaging solicitors. As to what he ought to have done, counsel for the defendant orally submitted:

“… the reasonable steps that the plaintiff ought to have taken, with the knowledge that he had in September through to December 2017, is number one, that he could have taken steps to try to work out what medical treatment he had had in 2003; or at a minimum, he could have told his solicitors that his memory was such that, as he has put in his evidence, he didn’t recall faces and names of work colleagues and friends, and his memory was so poor that one couldn't trust that he actually knew who all his clinicians were. And therefore to say to the solicitors, you guys need to work it out. I don’t know.

He didn’t give proper instructions to his solicitors about his very poor memory. As such, it put them in a position that they couldn’t investigate. The plaintiff was clear in cross examination that he doesn’t recall.”

53. Pursuant to s 50D(2), the involvement of Dr Thornley in the plaintiff’s treatment would have been discovered prior to 23 December 2017 if his solicitors had requested a Medicare Claims Record, since it would have informed them that Dr Thornley was a “rendering provider” and “ordering provider” for the plaintiff. As to the plaintiff’s personal knowledge, the defendant relied upon the plaintiff’s email to Wyatts on 11 February 2020, extracted at [33] above, that he had been told by Prof Carter that Dr Jaffe’s clinical records showed that Dr Jaffe had discussed his case with an endocrinologist “around this time”, which I take to mean the time that the plaintiff in fact saw Dr Thornley, according to the second batch of records produced by Dr Jaffe.

54. Secondly, and in the alternative, it would not be just and reasonable to extend the limitation period because significant actual and presumptive prejudice would be occasioned to Dr Thornley. The defendant submitted that he would suffer actual prejudice (s 62B(1)(b)). Although the correspondence between Dr Thornley and Dr Jaffe is available, the nature of the plaintiff’s claim extends beyond that ambit, which is prejudicial to Dr Thornley given that the consultation with the plaintiff and any conferences with Dr Jaffe occurred in 2003; that is, 22 years ago, and more than 17 years before the filing of the amended SoC. The Court was invited to infer from Dr Thornley’s responses to interrogatories to the effect that he did not recall certain matters and that he did not have an independent recollection of the case.

Consideration

55. The plaintiff bears the onus to satisfy the Court that the discretion to extend the long-stop period should be exercised in his favour and that it would not involve a significant prejudice to the prospective defendant, although there is an evidentiary onus on the defendant to raise any consideration against the exercise of the discretion: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per Dawson J at 544 and Toohey and Gummow JJ at 547; [1996] HCA 25.

56. The question for determination is: when was the cause of action discoverable? In my view, in the context of this factual matrix, that devolves to the question of: when was the plaintiff capable of instructing his solicitors that Dr Thornley had examined and advised him and/or Dr Jaffe in relation to his medical complaint; that is, when was he aware of it?

57. As to how s 50D(2) is to be understood in the context of this case, the appropriate test, in my view, is what the plaintiff knew or ought to have known; not what a reasonable person in the plaintiff’s position ought to have known: Telstra Corporation Ltd v Rea [2002] NSWCA 49 per Foster AJA, Mason P and Einstein J agreeing, at [37]. As noted by Faulkner J in Doughty v Hillier [2024] NSWSC 1220 at [90]:

“Although Telstra Corporation Ltd v Rea [2002] NSWCA 49 was primarily concerned with imputing to a plaintiff the knowledge of his or her agent (ie, the solicitor) the Court’s emphasis on the subjective position of the plaintiff is relevant to whether a particular plaintiff ought to have become aware of a relevant matter.”

58. Accordingly, the plaintiff’s memory impairment is relevant to what the plaintiff knew, or ought to have known. The plaintiff has reported having a worsening memory for at least 25 years. I accept that he did not recall having seen Dr Thornley, or his email communications, when he first retained Wyatts in this matter and gave them instructions on 15 and 27 November 2017, and therefore the cause of action was not discoverable at that time.

59. The next possible time for discoverability is when Prof Carter informed the plaintiff that, according to Dr Jaffe’s first records batch, Dr Jaffe had consulted with an endocrinologist, which I assume to have been when Prof Carter assessed him on 30 August 2018. Curiously, there is no mention in Prof Carter’s report that he had observed in Dr Jaffe’s records a reference to a consultation with an endocrinologist.

60. It would, of course, be unsurprising that Prof Carter, who was a consultant endocrinologist practising in Sydney, recognised the reference in the notes as being to “S. Thornley”, an endocrinologist who also practised in Sydney. Whether or not that was the source of Prof Carter’s view that Dr Jaffe had consulted with an endocrinologist in about 2003, as recalled by the plaintiff in February 2020, it is perplexing that Prof Carter did not mention it in his report to Wyatts.

61. In my view, the plaintiff was entitled to expect that Prof Carter would have informed Wyatts of all relevant matters in his report, which relieves the expectation that he, the plaintiff, should have personally reported to Wyatts what Prof Carter had told him, assuming that he recalled that exchange after the conference, without prompting.

62. In the context of ss 50D(1) and (2), I am satisfied that the plaintiff’s impaired memory is factored into the reference to “the person”. It follows that I am satisfied he did not know of the factor identified in s 50D(1)(b) and that he had taken “all reasonable steps” to ascertain the identity of the relevant defendants, before it was brought to his attention on 10 February 2020 that he had been assessed by Dr Thornley. From that time, his solicitors investigated a possible action against Dr Thornley, culminating in him being joined on 23 December 2020.

63. I turn then to consider the evidence as to when the plaintiff’s legal advisors could, or should, have realised that Dr Thornley, an endocrinologist, had examined the plaintiff and given an opinion as to his diagnosis and treatment.

64. As noted, the plaintiff submitted in writing that it was unreasonable to expect that Wyatts should have investigated a reference in the 2017 batch of Dr Jaffe’s notes to “S. Thornley”, when the plaintiff had not instructed Wyatts that he had seen a specialist, and Dr Jaffe had not produced correspondence of a specialist consultation.

65. That submission was a reference to Dr Jaffe’s hand-written notes. I accept that those scrawls were not a red flag, but the same can’t be said for the crisply printed references to “Dr S. Thornley” requesting pathology on 27 July 2003 and the results being received on 8 August 2003. On their own, they were worthy of inquiry, and in conjunction with the hand-written notes, more so.

66. It is no answer to submit that the plaintiff did not instruct Wyatts that he attended an endocrinologist, because they were aware that he had an impaired memory. Relying exclusively on his instructions for a reliable account of which doctors he had consulted over the period of his medical complaint, which on his account dated back to the 1990’s, was unwise to say the least.

67. The pathology entry in A/Prof Clyne’s report, considered in isolation, should also have prompted Wyatts to request a Medicare Claims Record or to make other inquiries as to whether there was a Dr S. Thornley also providing medical services to the plaintiff concerning this issue. Wyatt’s failure to do so is ameliorated to some extent by the fact that a reading of A/Prof Clyne’s report, as a whole, suggests that he was of the view that Dr Jaffe had not consulted an appropriate specialist. Therefore, it may be inferred that A/Prof Clyne had proceeded on the basis that the reference to “Dr S. Thornley” was not to an endocrinologist.

68. In any event, the question for determination is what the plaintiff, and not his legal advisors, knew or ought to have known: Pomare v Whyte (2019) 377 ALR 352; [2019] NSWCA 317 per Basten JA at [13]-[14]. Accordingly, I am satisfied that the plaintiff did not know that a cause of action against Dr Thornley was discoverable until 10 February 2020, and that he ought not have known of that fact before then.

69. In determining whether to extend the long-stop limitation period, the Court is obliged to take into account, to the extent that they are relevant, the matters identified in s 62B of the Limitation Act.

70. As to the length and reasons for the delay (s 62B(1)(a)), the length is a factor that impacts on Dr Thornley. In my view, neither the plaintiff nor Dr Thornley are responsible for the delay. As to prejudice, the defendant has submitted that the lengthy delay prejudices him in that he does not have an independent memory of the consultation and this is confined to the content of the medical records and correspondence. However, it is also relevant, in my view, that the plaintiff is not in a position to allege actions by Dr Thornley beyond the records and correspondence, since he also has no recollection of what occurred.

71. The defendant also made submissions as to loss (s 62B(1)(c)), submitting that since the proceedings against Dr Jaffe have settled, the principle of double recovery will apply, if the limitation period is extended and he succeeds in his claim. In my view, this is not a significant factor against making the order sought.

72. Having regard to all the evidence and taking into account that, if Dr Jaffe’s solicitors had produced all relevant records on 15 December 2017 in response to Wyatt’s notice to produce, it is likely that this issue would not have arisen, I am satisfied that it is just and reasonable for the long-stop period to be extended to 23 December 2020.

Orders

73. I make the following orders:

1. Pursuant to s 62A of the Limitation Act 1969 (NSW), the long-stop limitation period for the commencement of proceedings by the plaintiff is extended to 23 December 2020.

2. The issue of costs is referred to the Registrar.

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Decision last updated: 20 June 2025