Port v Holloway & Anor [2001] NSWSC 952

New South Wales Supreme Court

CITATION : Port v Holloway & Anor [2001] NSWSC 952 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11934 of 2001 HEARING DATE(S) : 13 September 2001 JUDGMENT DATE : 26 October 2001

Richard Daniel Port (Plaintiff) PARTIES : v Peter Holloway (First Defendant) Bernard Tuch (Second Defendant) JUDGMENT OF : Master Malpass

Mr Jay Anderson (Plaintiff) COUNSEL : Mr J Downing (First Defendant) Mr B Shields (Second Defendant) Adams & Co Lawyers (Plaintiff) SOLICITORS : Tress Cocks & Maddox (First Defendant) Lynn Boyd (Second Defendant) CATCHWORDS : Extension of limitation period - professional medical negligence - viability of claim. LEGISLATION CITED : Limitation Act 1969, s 60C, s 60E. CASES CITED : Rosenberg v Percival [2001] HCA 18. DECISION : See Paragraphs 25 - 28.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 26 OCTOBER 2001

11934 of 2001 RICHARD DANIEL PORT v PETER HOLLOWAY & ANOR JUDGMENT 1 These proceedings were commenced by Summons filed on 21 June 2001. Whilst the prayers for relief set forth in the Summons are somewhat inelegantly and ineptly phrased, the substance of what is sought seems to be inter alia an extension of the relevant limitation period pursuant to s 60C of the Limitation Act 1969 (the Act). 2 The plaintiff is desirous of propounding a claim for damages arising out of alleged professional medical negligence. 3 The plaintiff was a patient of the first defendant (a general practitioner). The first defendant referred the plaintiff to the second defendant (an endocrinologist) in relation to a provisional diagnosis of acromegaly. It seems that this was done on 25 July 1996. 4 The application was heard on 13 September 2001. The plaintiff has sworn an affidavit in support of the application. It annexes a proposed Statement of Claim. His solicitor (Mr Adams) has also sworn an affidavit. This material was supplemented by brief oral evidence. In addition, the plaintiff relied on expert reports from Drs. Kremer and Diamond. 5 The plaintiff was not cross-examined. Apparently it had been intended to cross-examine him. Unfortunately, the matter of giving him notice to attend for cross-examination had been overlooked. He was not present in court. An opposed application for adjournment was unsuccessful. 6 The plaintiff's evidence is that he started to feel unwell in and about 1992. Between then and about mid 1996, he was seeing the first defendant on a regular basis and he underwent a number of tests and examinations. Also, he was taking high dosages of certain tablets. 7 In his affidavit, the plaintiff deposed to the following:- "I attended Dr Tuch's surgery on or about 20 August 1996 on referral from Dr Holloway. I do not recall whether I submitted to further blood tests for measurement of growth hormone on or shortly after that date. I can say however, that if I was ever requested to undertake any testing or procedures I would have followed the directions of my treating doctors."