Taggert v Kirkpatrick

CITATION:	Taggert v Kirkpatrick [2008] NSWDC 295
HEARING DATE(S):	14 November 2008
EX TEMPORE JUDGMENT DATE:	14 November 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 The time within which the plaintiff may commence his proceedings is extended to 17 July 2008. 2 The plaintiff is to pay the defendant’s costs of the motion. 3 The affidavit evidence and exhibits are returned.
CATCHWORDS:	LIMITATIONS - alleged misdiagnosis of cancer - loss of medical records in floods of June 2007 - whether fair trial hearing obtainable
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Commonwealth of Australia v Shaw [2006] NSWCA 209 Central Asbestos Co Ltd v Dodd (1973) AC 518
PARTIES:	Neil William Taggert (Plaintiff) Dr Alan Kirkpatrick (Defendant)
FILE NUMBER(S):	Newcastle 238/08
COUNSEL:	T R Edwards (Plaintiff) I F Butcher (Respondent)
SOLICITORS:	Lockhart Quinn Solicitors (Plaintiff) Paul Tsaousidis (Defendant)

JUDGMENT

1 The plaintiff Neil William Taggert seeks an extension of time within which to bring proceedings against Dr Alan Kirkpatrick in respect of negligence alleged in the treatment of a condition leading to bowel cancer. The application is made under s 60G of the Limitation Act 1969.

2 The circumstances of the claim arise out of what were alleged to have been consultations with the defendant in April 2001 in respect of rectal bleeding and subsequent consultations in October and November 2002, following which the plaintiff was referred to a specialist for banding of haemorrhoids. The specialist conducted a colonoscopy in February 2003 and identified a tumour in the bowel as a result of which the plaintiff was treated with surgery in March 2003 and with a six month period of chemotherapy.

3 In November 2003 the plaintiff was advised that he was in remission and stated that he believed that the treatment had been successful. He returned to work, believing that he would have no long-term effects. He continued to attend the specialist for regular checkups and blood tests.

4 In January 2005 a blood test returned an abnormal result and liver tumours were diagnosed. In March 2005 the plaintiff underwent investigation of suspicious further developments in his bowel, but no further cancer was identified.

5 In April 2005 surgery was undertaken to deal with the liver tumours, with indications that the surgery was not entirely successful. The plaintiff had no further treatment except for regular checkups and tests until November 2007 when further progression of his cancer was detected, and in February 2008 he was informed that his condition was terminal. He then consulted a solicitor.

6 In order to succeed in an application under s 60G the plaintiff must meet the criteria set out in s 60I of the Act. He must therefore establish when he became aware of his injury, when he became aware of its nature and extent, and when he became aware of the connection between the injury and the act or omission of the defendant.

7 The Court has to decide these factors not only on the basis of evidence of…