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. Dr Cumming died in November 1995. In June 1996 the appellant commenced proceedings against Dr Sinclair, the rheumatologist, under whose care she was, as well as the estate of the late Gordon Cumming. In early 1997 she made an application for an extension of the limitation period against the estate of Dr Cumming only. Before dealing with the manner in which the trial judge dealt with the application for extension it is necessary to go to the manner in which the respondent pleaded her case against Dr Cumming. In paragraph 9 she refers to the diagnosis of colourblindness by Dr Moxham, to which I have referred earlier. She then pleaded in paragraph 10 that she saw Dr Moxham in about December of 1990 and that at all material times following that visit, Dr Cumming ought to have known that she had been diagnosed by Dr Moxham as suffering colourblindness and that he should have warned her at that time that 2 UNREPORTED JUDGMENTS colourblindness was the first sign of eye damage or that it was related to her continuing consumption of chloroquine. There were then six particulars of negligence alleged against Dr Cumming. The same six particulars of negligence were jointly alleged against Dr Sinclair, the rheumatologist andhence have a degree of generality which makes it difficult to apply them all directly to the alleged negligence of Dr Cumming. In particulars of negligence, which were provided to the appellant during the course of usual pre-trial procedures, emphasis seems to have been placed upon paragraphs 11B, C, D, E and F of the particulars of negligence in the statement of claim. The focus of the particulars provided related to what Dr Cumming should have done in April 1992 when her failing eyesight was first diagnosed. However, the essential treatment which was required at that point of time was that she cease taking the chloroquine medication. There was evidence before the Court that in fact that occurred. When the application for extension of time came on for hearing before Newton ADCJ it appears that the case was conducted by the respondent upon the basis that the essential negligence focused around Dr Cumming's actions in April 1992, and in particular about his failure to take or cause or advise that the respondent be taken off the chloroquine medication at that point. The appellant, however, urged a different case upon the trial judge on the hearing of the application, in the sense that the appellant's counsel sought to focus his Honour's attention upon the negligence alleged in paragraph 10 of the statement of claim, which related to the failure to act upon the diagnosis of colourblindness in about May of 1990. The relevance of that approach by the appellant is obvious as the provisions of ss 60C and 60E of the Limitation Act 1969 (NSW) under which the application for extension of time was brought had no application to a cause of action which arose prior to September 1990. If the relevant causative negligent act occurred in May of 1990, then those provisions had no application. Counsel for the appellant followed the same approach before this Court. It is not known whether the relevance of the distinction between the 1990 act of negligence and that which allegedly occurred in 1992 was made known to his Honour. It is certainlynot apparent from his Honour's judgment that he appreciated the significance of it, because the only negligent act upon which he focuses in his judgment relates to the failure to detect the colourblindness or to act upon it. It may be that if no other negligence was available for his Honour to form a conclusion that there was at least an arguable cause of action then that is sufficient error in his Honour's judgment to require that the appeal be allowed. It seems to me, on the material available to the Court, that no negligence is established, even at a prima facie level, in respect of any action of Dr Cumming in April of 1992, so that even if the respondent had attempted to urge upon this Court that the trial judge's error ought not to cause the appeal to be allowed because there was another part of the case which his Honour did not consider, then the respondent has failed to establish that there was even such a prima facie case against Dr Cumming. I propose to come back to this question about the date of accrual of the cause of action in a moment but I should move to the second ground of the appeal and that is that his Honour wrongly dealt with the question of prejudice. URJ ESTATE OF THE LATE GORDON CUMMING v HAWKES (Beazley JA) 3 The appellant seeks to argue that the estate of Dr Cumming is prejudiced because, Dr Cumming having died in November of 1995, his evidence will not be available, it being submitted that it is a rare case in which clinical notes will be sufficient in a case. That submission was made in fairly general terms, but it was also submitted that Dr Cumming, of course, would not be available to give his version of evidence of conversations either with the respondent or with other medical practitioners involved in the respondent's treatment. I do not propose to deal with those factual bases of the appellant's submissions because I have reached the conclusion that the trial judge applied a wrong test in any event whenconsidering the question of prejudice. His Honour did refer to the decision of Brisbane South Regional Health Authority v Taylor (1996) 180 CLR 541. Their Honours in various judgments in that case make it clear that, when dealing with the question of prejudice in an application for extension of time under provisions which are equivalent to s 58 of the Limitation Act 1969 (NSW), it is not a question of balancing prejudices. His Honour engaged in precisely that process in the course of his judgment. The proper application of Brisbane South Regional Health Authority v Taylor was considered by this Court in its recent judgment in The Council of the City of Sydney v Zegarac (unreported, New South Wales Court of Appeal, 26 February 1998). In that case Mason P stated at 5 that: Nothing in the structure of s 60E(1) suggests that mere proof of prejudice must lead to the rejection of (an application for extension). On the contrary, prejudice is but one of a list of factors to be taken into account. The learned President reiterated that point at 9. In doing so, he used language which included the language of 'weighing prejudice' in the following passage: All of the circumstances of the case must be taken into account, including each factor mentioned in s 60E(1) to the extent that it is relevant to the circumstances of the case. If this is "individualised justice", it was what Parliament intended. Evidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case. In weighing prejudice its impact upon a fair trial is the primary focus as Toohey and Gummow JJ emphasise in Brisbane South. When his Honour there made reference to weighing prejudice, he did so in my opinion in relation to assessing the prejudice which is suffered by a defendant in a case where an action is brought out of time. He was not talking about a balancing exercise which is the process in which the trial judge engaged in this particular case. For those reasons, I consider that the trial judge erred in a second respect, namely in themanner in which he approached the question of prejudice. During the course of the argument before this Court, the case began to take a different tack. In his written submissions, senior counsel for the respondent identified the relevant particulars of negligence as being a failure to properly monitor the dosage of chloroquine and two, a failure to examine the respondent with sufficient regularity whilst she was being prescribed chloroquine. Senior counsel for the respondent very appropriately and frankly conceded that one needed to read the particulars of negligence in the statement of claim in a somewhat elastic manner to be able to find those particulars contained within it. He also frankly conceded to the Court that he has taken a view of this case which is slightly different to that which was taken by those who had the carriage of it prior to him. His frank concession I think is obvious on the face of the pleadings and the face of his written submissions. 4 UNREPORTED JUDGMENTS It seems to me that there is nothing that this Court ought to do in relation to the different direction in which counsel now sees this case as taking. That is a matter for the respondent and her legal advisers in due course. Because the case as now formulated by the respondent before this Court is different in a real degree to the manner in which it was conducted before the trial judge, this Court cannot exercise its own discretion in relation to the question of extension of time and the respondent should take her own course in that regard. For those reasons, I am of the opinion that the following orders should be made: 1. Appeal allowed with costs, and 2. The respondent be entitled to an certificate under the Suitors" Fund Act 1951 (NSW), if so entitled. Handley JA. I agree. Sheppard AJA. I also agree. Handley JA. The orders of the Court will be as proposed by Beazley JA. Orders accordingly. Counsel for the appellant: A Woods Solicitors for the appellant: Blake Dawson Waldron Counsel for the respondent: R McIlwaine SC/ W Carney Solicitors for the respondent: Yee and Co