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." Also, he deposed to continuing under conservative treatment for his blood pressure management. 8 In evidence, is a copy report from the second defendant to the first defendant containing the following:- "Dear Peter, Re: Richard Port d.o.b: 16.5.54 Many thanks for referring this 42 year old man whom I reviewed in my rooms on August 19. It is unlikely Mr Port has acromegaly despite biochemical evidence to suggest this is a possibility. Historically Mr Port has always had large bony features and this runs in the family. The size of his wedding ring, which he has had for 8 years, has not changed. There have been no problems with dentition or trouble chewing food. The size of Mr Port's shoes continue to be size 12 wide, and facial features have not altered. Blood pressure in this man, who is 145% of ideal body weight, was elevated, and it is true that hypertension is more common in people with acromegaly. Sleep apnoea is also more common in people with acromegaly, and I understand that Mr Port may well have this problem. The random blood glucose level obtained in my rooms was 6.7mmo/L. This needs to be repeated to ensure that diabetes is not present. Examination revealed no neurological abnormality; in particular visual fields and fundal examination were normal. In the first instance I have asked Mr Port to repeat the measurement of growth hormone and insulin-like growth factor 1. If these are elevated, a CT scan is warranted. Review is planned in 4 weeks." 9 Largely, the plaintiff's affidavit is unhelpful as to events following his consultation with the second defendant. What is before the court largely comes from the expert reports. There is nothing in the evidence to suggest that the plaintiff did repeat the measurement of growth hormone and insulin-like growth factor 1. There is no evidence of a referral to a pathologist. 10 The material suggests that following the consultation, the plaintiff failed to return to the first defendant for reassessment for at least a twelve month period. Apparently, he was not seen again for clinical assessment by the first defendant until 13 August 1997. There is nothing to suggest that any review took place with the second defendant. 11 The plaintiff started seeing Dr Gardiner (who had joined the first defendant's practice in early 1999). In April 2000, he was referred to another endocrinologist (Dr White). A CT scan was then performed in May 2000. It disclosed a pituitary tumour. He was then given a diagnosis of acromegaly. 12 In about October 2000, he consulted his present solicitors. Attempts were then made to obtain a report from the first defendant. As the attempts were unsuccessful, discovery of documents was sought. The Notice of Motion was filed in February 2001. Documents were produced to the court (including a copy of the report dated 20 August 1996). 13 Counsel (Mr Anderson) was briefed in March 2001. A conference was had with him. 14 Section 60C of the Act enables the court to extend the limitation period, if it decides that it is just and reasonable to do so. In exercising the powers conferred on it by s 60C, a court is to have regard to all the circumstances of the case (inter alia to the extent that they are relevant to the circumstances of the case, the circumstances enumerated in s 60E). The applicant bears the onus of satisfying the court of an entitlement to relief. 15 Whilst it is open to be said that the plaintiff may have moved with greater haste, neither of the defendants makes any real complaint about delay and/or inadequate explanation of delay. There is no evidence of actual prejudice. Muted reference only has been made to the matter of presumptive prejudice. 16 There is material which presents his condition as being very serious with the potential for a limited life expectancy. 17 The real issue agitated by both defendants is whether or not it would be futile to grant relief because the material fails to disclose a viable cause of action. 18 The court is left to consider these questions in circumstances where the evidence can be described as parsimonious and vague. In certain respects the plaintiff's own evidence was unhelpful. As things transpired, such evidence as has been given by the plaintiff could not be explored or tested by cross-examination. The report from the second defendant has its ambiguity. The expert material raises the question of the responsibility of the patient to comply with requests and to have such investigations undertaken. 19 The breach of duty alleged against the first defendant is to be found in paragraph 10 of the proposed Statement of Claim. In substance it concerns an alleged failure to either advise or to arrange further tests. These were the tests referred to in the report dated 20 August 1996. 20 The plaintiff has placed the views of two experts before the court. The authorities establish the relevance of evidence of professional practice and opinion. They also establish that it is not conclusive (see inter alia Rosenberg v Percival [2001] HCA 18). 21 Both experts commend the first defendant for his diagnosis. Neither, gives support for a viable cause of action in relation to the case sought to be propounded against the first defendant. 22 The breach of duty alleged against the second defendant is to be found in paragraph 11 of the proposed Statement of Claim. The allegations concern inter alia failure to confirm the diagnosis, failure to arrange and/or advise the undergoing of radiographic examination and failure to advise and/or arrange the tests. 23 There is material which lends support to the view that the second defendant may have had information or evidence which should have prompted the diagnosis of acromegaly. The experts present competing views as to what (if anything) should have been done by the second defendant. On one view, it is said inter alia that "if the consultant orders investigations it is certainly his responsibility to obtain and peruse those results". Dr Kremer supports also the view that at least the diagnostic test of a CT scan should have been utilised at the time. 24 The material does throw up the prospect that the case sought to be brought against the second defendant may have its difficulties. However, I have not come to the view that it is hopeless and that it would therefore be futile to grant relief in relation to it. 25 In the circumstances of the claim sought to brought against the first defendant, I am not satisfied that the plaintiff has discharged the onus of proof. Accordingly, I do not find that it is just and reasonable to make an order. 26 In the circumstances of the claim sought to be brought against the second defendant the position is somewhat different. The decision to be made has not been an easy one and it has caused me considerable reflection. Ultimately, I have come to the view that the onus has been discharged. Accordingly, I have decided that it is just and reasonable to make an order extending the relevant limitation period and that such an order should be made in this case. 27 I extend the limitation period for the cause of action proposed to be brought against the second defendant for a period of 14 days from this date. I give leave to the plaintiff to file a Statement of Claim within that time. 28 The plaintiff is to pay the first defendant's costs of the Summons. The costs of the Summons between the plaintiff and the second defendant are to be costs in the cause. ********** Last Modified: 10/29/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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