ESTATE OF THE LATE GORDON CUMMING v HAWKES [1998] NSWCA 66

ESTATE OF THE LATE GORDON CUMMING v HAWKES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, BEAZLEY JA and SHEPPARD AJA 9 March 1998 [1998] NSWCA 66

Limitation of actions — Accrual of cause of action — Cause of action arising prior to September 1990 — Question of prejudice — Approach to be taken — Limitation Act 1969 (NSW) ss 58, 60C and 60E.

Beazley JA. This is an appeal from a decision of Newton ADCJ in the District Court made on 14 March 1997 in which his Honour extended the time in which the respondent could commence her action against the first appellant, the estate of the late Gordon Cumming. This Court granted leave to appeal on 21 April 1997.

The appellant's claim against Dr Cumming arose out of his treatment of her commencing in 1986. At that time, she was under the care of a rheumatologist, Dr Sinclair, who prescribed a drug called chloroquine for her condition. A known side effect of this drug is eye damage. Presumably because of that, at an early stage, and it would appear in 1986, Dr Sinclair referred the respondent to Dr Cumming to monitor the effects of chloroquine. The respondent stayed under the care of Dr Cumming until the end of 1992.

During that period of time, two circumstances occurred which are relevant to the respondent's claim against Dr Cumming's estate. The first is that in the early part of 1990,and probably in May of that year, she was diagnosed as being colourblind by a Dr Moxham. The second relevant event is that in early 1992, and probably in about April of that year, the respondent attended upon Dr Cumming because of her perceived deterioration in her eyesight.

It appears that at about the time Dr Cumming examined her in April 1992 the respondent was taken off the drug chloroquine. It also appears that she was taken off it because by that stage it had been ascertained that she had suffered eye damage in the form of chloroquine induced maculopathy and corneal clouding. The damage is permanent and indeed there has been some deterioration of the condition since the cessation of that particular medication.