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

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

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.
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.
On 11 August 2003, Dr Thornley emailed the plaintiff. The email was part of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hogan v Thornley

Details

AGLC: Hogan v Thornley [2025] NSWSC 640
Case: [2025] NSWSC 640
Decision Date: 20 June 2025

CaseChat Overview and Summary

The case of Hogan v Thornley involved a plaintiff, Hogan, who sought compensation for injuries caused by medical negligence by the defendant, Thornley. The dispute centred around whether the court should extend the statutory limitation period for commencing legal action due to Hogan's cognitive impairments resulting from a non-functioning pituitary macroadenoma. Hogan alleged that Thornley's negligence led to the development of this condition, which included symptoms such as memory impairment. The case was heard in the Supreme Court of New South Wales, which was tasked with determining whether it was just and reasonable to extend the limitation period given Hogan's condition.

The legal issues before the court were whether the principle of discoverability should apply to extend the limitation period and if it was fair to impose an obligation on Hogan to discover the facts giving rise to his claim sooner, considering his diagnosed memory impairment. The court needed to balance the statutory limitation period against the equitable principle that allows for extensions in cases where a plaintiff is unaware of the facts giving rise to their claim due to their own disability. The central question was whether Hogan's memory impairment, diagnosed post-injury, should be considered in determining when the limitation period should start.

The court found that the statutory limitation period should not be extended in this instance. It held that the discoverability principle does not apply where the plaintiff has been diagnosed with the condition that caused their cognitive impairments. The court reasoned that since Hogan was aware of his condition and the symptoms associated with it, he ought to have known the facts giving rise to his claim against Thornley. The court emphasised that while Hogan's memory impairment was a significant factor, it did not absolve him of the responsibility to discover the facts of his injury. The decision underscored the importance of the statutory limitation period and the need to balance it with equitable considerations. The court's ruling highlighted the necessity for plaintiffs to take reasonable steps to discover the facts of their claims, even in cases of cognitive impairment.

The final orders of the court were that the limitation period was not extended, and Hogan's claim was dismissed. The court determined that Hogan had not met the criteria for an extension of the limitation period under the circumstances presented. The decision underscored the importance of statutory limitations in legal proceedings and the need for a balance between equitable considerations and statutory requirements.

Orders