Eldridge v Molodysky [2002] NSWSC 93

New South Wales Supreme Court

CITATION : Eldridge v Molodysky [2002] NSWSC 93 CURRENT JURISDICTION: Common Law Professional Negligence List FILE NUMBER(S) : SC 20696 of 2000 HEARING DATE(S) : 11 February 2002 JUDGMENT DATE : 26 February 2002

Dinah Eldridge (Plaintiff) PARTIES : v Eugine Molodysky (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr M Williams (Plaintiff) Mr D Davies SC (Defendant) SOLICITORS : Charlton Shearman (Plaintiff) Tress Cocks & Maddox (Defendant) CATCHWORDS : Extension of limitation period - second application - largely same evidence - additional material could have been adduced on first application - approach of the court. LEGISLATION CITED : Limitation Act 1969, s 60G, 60I. CASES CITED : Nominal Defendant v Manning 50 NSWLR 139. DECISION : See paragraph 28.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE List

Master Malpass

Tuesday 26 February 2002

20696 of 2000 Dinah Eldridge v Eugine Molodysky

JUDGMENT 1 Master Malpass: The defendant has been a general practitioner since about 1980. For about 18 years, from about 1980, the plaintiff was his patient. There were many consultations. 2 She saw him in relation to inter alia persistent aching in her right arm and tingling sensations in the fingers of her right hand. It was not until about 1996, that she was diagnosed as having a massive schwannoma tumour (neurofibroma). In 1996 and 1997, she underwent surgery. It is her claim that she has been left with inter alia Horner's Syndrome, loss of function and a loss of career. 3 It is said that in November 2000 she became aware of the causal nexus between her problems and negligence on the part of the defendant. She brought these proceedings to recover damages. An application was made for an extension of the relevant limitation period. 4 The application came before Master Harrison. The hearing took place on 18 June 2001. Judgment was delivered on 3 July 2001. 5 The relief was sought pursuant to s 60G of the Limitation Act 1969 (the Act). Master Harrison found that the threshold requirements had been satisfied. However, she did not proceed to make an order. The final paragraph of her judgment is in the following terms:- "The plaintiff submitted that the defendant finds himself in the position that doctors often do, in that they have no specific recall of events and are reliant upon their notes and their usual practice in giving evidence. However, as the plaintiff seeks to bring a claim outside the limitation period, the situation is different because prejudice has to be considered. It is my view that the lack of independent recollection of the defendant, as to the consultations and the content of conversations he had with the plaintiff and the missing radiological scan taken in 1983, means that he will suffer significant prejudice and will not be able to have a fair trial due to the delay. The application for an extension of time is refused. The amended notice of motion is dismissed. The plaintiff has requested that the issue of costs be reserved for argument." 6 The plaintiff had sworn a number of affidavits. She was cross-examined and a finding was made that she gave truthful evidence. She also relied on an affidavit of Tina Foukas. The defendant had sworn an affidavit. The defendant relied also on an affidavit of Karen Enid Mowbray. He was not cross-examined. A copy of his notes was tendered (Exhibit 1) 7 The notes may be seen as being cryptic of character and not overly expansive in content. 8 On 11 September 2001, the plaintiff filed a further Notice of Motion. This brought a second application for an extension of the relevant limitation period. This application came on for hearing on 11 February 2002. The defendant filed in court a Notice of Motion seeking a dismissal of the plaintiff's application. 9 At the outset, counsel for the defendant indicated that having regard to what had been said in Nominal Defendant v Manning 50 NSWLR 139, he would not be submitting that the plaintiff's application be dismissed on the ground of abuse of process. However, he would be submitting that it be dismissed on the basis of the ramifications of it being a second application. 10 The plaintiff relied on an affidavit sworn on 3 October 2001. The court has been informed that this reproduced the evidentiary position created by the affidavits read before Master Harrison. There was additional evidence. It was contained in an affidavit sworn by her solicitor (Mr Charlton). The defendant relied on the two affidavits that had been read before Master Harrison. 11 Both sides took objection to material contained in the affidavits. Exhibit 1 was again placed before the court. The plaintiff was not cross-examined. There was brief cross-examination of the defendant. 12 The parties also put before the court the transcript of the proceedings before Master Harrison together with a copy of her judgment. 13 As an initial observation, it should be said that this second application was one that put this Court in a difficult position. The thrust of the application had the overtones of an appeal. As the hearing progressed, it seemed to me that in the circumstances of this case any second application should have been brought before Master Harrison. 14 The issues agitated on this second application were described as being prejudice and the ramifications of it being a second application. 15 As appears from paragraph 13 of her judgment, Master Harrison had made two findings on the question of prejudice. One related to the missing radiological scan taken in 1983. The other related to her finding of lack of independent recollection of the defendant as to the consultations and the content of conversations had with the plaintiff. This matter had been considered at greater length earlier in paragraph 12. 16 The additional evidence related to the missing radiological scan. It was not demonstrated that this material could not have been adduced before Master Harrison. It simply seems to be the case that the plaintiff chose to pursue this matter after the judgment had been delivered. 17 What had been missing was a plain X-ray of the cervical spine. It was now common ground that this would not have demonstrated the presence of a soft tissue neurofibroma and was therefore not a matter of significance. 18 The affidavit of the defendant contained inter alia the following:- "2. I have a very limited recollection of the plaintiff. I recall the plaintiff but I do not recall any of the specific consultations I had with her from 1980 through until 1996. In relation to the specific consultations, I rely on my medical records and my usual practice. …….. 16.(d)To defend these proceedings in part depends upon the conversations I had with the plaintiff (especially concerning the symptoms in her right arm) about which I have no actual recollection and in relation to which I can only give some evidence to the extent that these conversations would be covered by my usual practice of taking notes of complaints of pain made by the patients at the time. My usual practice is to always record such complaints in my notes. There are no such complaints recorded in my notes as having been made by the plaintiff after the plaintiff saw Dr Rowe in 1983." 19 During his cross-examination, it was elicited that the defendant had a busy practice in the 1980's and that he would not have been able to recall the content of conversations had with a patient even a few years thereafter. This was evidence that could have been adduced during the hearing of the first application. 20 It would be conjecture or speculation, to seek to ascertain the weight that was respectively given by Master Harrison to the two matters of prejudice. She did refer to the second of the two matters as a matter "Of more critical importance". However, these words were referable to matters earlier considered in paragraph 11. 21 It seems to be common ground that the first of the two matters (the matter of the missing X-ray) should now be put aside as a matter of no significance. If that is done, the court is left to look at the evidence as to the second matter (the matter of the defendant's lack of independent recollection as to consultations and the content of conversations) in the context of the relevant circumstances of this case. In respect to this matter, the court is in fact asked to make a finding different to that made by Master Harrison. 22 The court is now asked to do this largely on the same evidence as was before Master Harrison. 23 The plaintiff said that there should be no finding as to prejudice. It is said that the defendant's recollection of conversations would have been lost even during the limitation period. Also, it was said that there would be no prejudice by reason of what had been deposed to in (d) of paragraph 16 of his affidavit. 24 After carefully looking at the material, I do not accept these submissions. In my view, leaving aside the matter of the missing X-ray, there is evidence of significant prejudice. Further, it seems to me that a fair trial cannot now take place. 25 The regime established by ss 60G and 60I enables the court to make an order extending the relevant limitation period where the threshold requirements have been satisfied and the court decides that it would be just and reasonable to make an order. The plaintiff bears the onus of satisfying the court that an order should be made. 26 In the circumstances of this case, as disclosed by the material before the court on this second application, I am not satisfied that it is just and reasonable to make an order and that an order should be made. 27 In addition to what follows from the evidentiary position placed before the court, it seems to me that there is further reason for refusing the present application. It is a second application founded largely on the same evidence that was before the court on the first application. I am not satisfied that the additional material could not reasonably have been relied on during the hearing of the first application. It is not a case where there has been a change of circumstances. It seems to me that the interests of justice are best served by not exercising the discretionary powers of the court in favour of the plaintiff. 28 The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. The exhibit may be returned. **********