Taggert v Kirkpatrick

[2008] NSWDC 295

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 the facts before it but on the basis of when it might have been reasonable for the plaintiff to have become aware of these factors. The plaintiff claims that the connection between his disease and the defendant became apparent only when he obtained legal advice in February 2008. The statement of claim was filed on 17 July 2008.

8 As to when the plaintiff ought reasonably to have been aware of these three factors, the defendant made two assertions.

9 Firstly, it was claimed that the plaintiff ought reasonably to have been aware of them from the time of the initial diagnosis. I do not accept that proposition. The evidence was that having been referred and treated, the plaintiff believed that he had been cured. I think I can take judicial notice of the fact that in this current age cancer is capable of cure and, having regard to the medical evidence before me as well as the plaintiff’s evidence, I considered it reasonable that the plaintiff did not make further enquiry and questionable as to whether or not he in fact at that stage had any provable damage.

10 Secondly, the defendant further submitted that the plaintiff ought to have made enquiry in early 2005 when the liver tumours were diagnosed. Dr Chen, who undertook surgery on the liver at that time, prepared a report which estimated a 25 per cent prospect of survival after the liver surgery that was subsequently undertaken in April 2005. Dr Chen’s report was addressed to Dr McCallum. There is no evidence that this prognosis was communicated to the plaintiff. There is evidence, however, both from the plaintiff and from those treating him that following the liver surgery and for a significant period he was apparently well and recovered. It was not until November 2007 that there was evidence of further progress of the disease and that in February 2008 he was advised that his prospects of survival were short-term.

11 The defendant referred me to the decision of the Court of Appeal in Commonwealth of Australia v Shaw [2006] NSWCA 209, particularly the reasons of Basten J as they appear at [32] where I note that he quoted from Lord Reid in Central Asbestos Co Limited v Dodd (1973) AC 518 at 530 where he said:

In order to avoid constructive knowledge, the plaintiff must have taken all such action as it was reasonable for him to take to find out.

12 The circumstances in Shaw were different to the current circumstances. In Shaw the delay was of a very extensive period. There was evidence of substantial prejudice to the defendant because of the delay not only in the commencement of proceedings but the delay on the part of the plaintiff in obtaining medical attention for his psychiatric symptoms. It was in that context that the Court of Appeal was considering what the plaintiff might reasonably have done; that is, whether it was reasonable of him to have delayed obtaining medical attention in the face of the very obvious symptoms from which he suffered. Taking all of the matters into account, both the absence of action on the part of the plaintiff as well as the prejudice to the defendant, the Court of Appeal declined the extension of time.

13 In this case it cannot be said that the plaintiff was not obtaining appropriate medical treatment. The question is whether it would have been reasonable for him to obtain legal advice and expert advice in early 2005 in order to investigate the connection between the progress of his disease and the treatment of him by the defendant. Having regard to the factors that I have already referred to, namely, that he apparently recovered and was in good health, I do not think that it can be said that it was not reasonable of him to have made enquiry at that stage.

14 In the circumstances, I am satisfied that the plaintiff has established that he has met the criteria set out in s 60I(1)(a) and (b) of the Limitation Act 1969.

15 The defendant raised prejudice on two bases. Firstly, the records of his treatment of the plaintiff at the critical periods of time were lost in the flood of June 2007. The evidence of the defendant through his solicitor was that he had no clear memory of what consultations occurred and what complaints were made by the plaintiff in respect of rectal bleeding and haemorrhoids. The second aspect complained of by the defendant was that the plaintiff’s evidence as to the times at which he consulted the defendant and the circumstances of the consultations was somewhat contradictory.

16 The question that I have to entertain is whether, having regard to the time that has passed and the absence of records, the defendant could secure a fair trial. I have concluded that, notwithstanding the loss of his handwritten notes, there is material at least from 2003 when the plaintiff was first referred to specialist treatment, concerning the dates at which he states his symptoms commenced and when he consulted the defendant. In my view that material, although not perfect and although presenting problems both to the plaintiff and to the defendant in establishing their legal positions, does provide sufficiently to allow the matter to proceed on the basis that the defendant will have a fair opportunity to deal with the issues raised.

17 As far as contributory negligence is concerned, I consider that to be a matter for the trial judge.

ORDERS

18 The orders which I make are as follows.

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.

**********