Taggert v Kirkpatrick [2008] NSWDC 295

New South Wales District Court

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

1 The time within which the plaintiff may commence his proceedings is extended to DECISION: 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.