New South Wales Supreme Court CITATION : McGuirk v Bellamy & Anor [2004] NSWSC 329 HEARING DATE(S) : 21 April 2004 JUDGMENT DATE : 23 April 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : I extend the limitation period for the bringing of the proposed cause of action against the proposed second defendant (Dr Edwards). The plaintiff is to have leave to add Dr Edwards as a second defendant in the proceedings. Any Amended Statement of Claim is to be filed within 14 days. The plaintiff is to pay the costs of the Notice of Motion. The Exhibits may be returned. The proceedings are remitted to the District Court. CATCHWORDS : Extension of limitation period - medical negligence - viable cause of action - delay and prejudice. LEGISLATION CITED : Limitation Act 1969, s 60C, s 60E. CASES CITED : N/A Anthony McGuirk (Plaintiff) PARTIES : v Dr Gregory R Bellamy (Defendant) Dr James R M Edwards (Proposed Second Defendant) FILE NUMBER(S) : SC 20494 of 2001 COUNSEL : Mr S G Campbell SC/Mr Mark Perry (Plaintiff) Mr A Jungwirth (Defendant and proposed Second Defendant) SOLICITORS : Core Legal (Plaintiff) David Ian Brown (Defendant and proposed Second Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Friday 23 April 2004 20494 of 2001 Anthony McGuirk v Dr Gregory R Bellamy & Anor JUDGMENT 1 MASTER: In January 2000, the plaintiff suffered left arm pain and atypical chest pain. He was referred to Dr Silberberg who made a diagnosis of unstable angina. Dr Silberberg suggested coronary artery by-pass grafting surgery. Dr Edwards (a cardiac surgeon) was consulted. He recommended a conservative management with attempted angioplasty and delaying definitive surgery. 2 The plaintiff was then referred to Dr Bellamy for angioplasty. Dr Bellamy attempted angioplasty. It was aborted before it even started because on the initial catheter introduction the right coronary artery was dissected. Dr Edwards then effected urgent coronary revascularisation. 3 Following the surgery, the plaintiff had some 6 to 8 weeks off work. At the time, he was employed as a Real Estate Agent. He lost that job. He said that he suffered a loss of confidence. He claims to have suffered economic loss as a result of the treatment given to him. 4 In May 2001, he consulted G H Healey & Co Solicitors. The conduct of his claim was placed in the hands of Mr Costa. He commenced these proceedings by Statement of Claim filed 31 May 2001. It propounds a claim for damages founded on negligence against Dr Bellamy. 5 Mr Costa left G H Healey & Co and set up his own firm. He had the conduct of the plaintiff's matter until 1 February 2003. Since that time, the conduct of the matter has been with his partner (Mr Rafferty). 6 Counsel had been briefed at an early stage. Mr Perry came to be briefed following the filing of the Statement of Claim. He had conferences with the plaintiff on 3 September 2002 and 22 November 2002. 7 By 22 November 2002, the plaintiff had obtained medical reports from Professor Hickie and Dr Meldrum-Hanna (reports dated 4 October 2002 and 12 November 2002). The latter expresses the opinion that the advice given by Dr Edwards was "inappropriate and negligent." In his view early, if not semi urgent, revascularisation was required. There had also been a status conference held on 13 November 2002 at which it had been foreshadowed on behalf of the plaintiff that application would be made to add Dr Edwards as a party. 8 At the conference held on 22 November 2002, the plaintiff gave instructions to his legal advisers to take the necessary action to have Dr Edwards joined as an additional defendant. At that time, there was an awareness by both the plaintiff and the legal advisers that the relevant limitation periods would expire on or about 31 January 2003. 9 There is a question as to whether or not there was sufficient evidence (in particular evidence as to consequential damage) available to the plaintiff, at that time, to justify the commencing of proceedings against Dr Edwards. However, for the moment I shall put that consideration aside. It was not a matter taken into account by the legal advisers on 22 November 2002. 10 The plaintiff relied on his legal advisers to take the necessary action. Unfortunately, the legal advisers allowed the limitation period to elapse without doing what was necessary to bring the claim within time. 11 Following the expiry of the limitation period, there were three further status conferences (held on 12 February 2003, 16 April 2003 and 30 April 2003 respectively). 12 The application to extend the limitation period and join Dr Edwards as a second defendant was not filed until 9 May 2003. It was filed pursuant to an order made at one of the status conferences. 13 Senior counsel was briefed (Mr Campbell SC). A conference was had with him on 25 June 2003. Following that conference, reports were obtained from Dr Jungfer (dated 22July 2003 and 24 July 2003). She made a diagnosis of an adjustment disorder with depressed and anxious mood. She gave a prognosis of some gradual slow recovery which could be accelerated with appropriate intervention (a course of ten consultations with a cognitive behavioural based clinical psychologist). She relates his condition to the diagnosis of cardiovascular disease and the events that occurred around the time of January 2000. 14 The Notice of Motion did not come on for hearing until 21 April 2004. It was opposed by Dr Edwards. 15 In support of the application, the plaintiff has relied on three affidavits. One was sworn by the plaintiff himself. One was sworn by Mr Costa. The remaining affidavit was sworn by Mr Rafferty. All deponents have been cross-examined. 16 Relief is sought pursuant to s 60C of the Limitation Act 1969 (the Act). Under the section, the court, may, if it decides that it is just and reasonable to do so, order that the limitation period be extended. Section 60E of the Act provides that in exercising the powers conferred on it by s 60C, the court is to have regard to all of the circumstances of the case (including the matters set forth in s 60E itself). The plaintiff bears the onus of demonstrating an entitlement to relief under s 60C. 17 The proposed second defendant puts a number of matters in opposition to the application. It is unnecessary to refer to all of them. The detailed submissions may be found in counsel's written outline of submissions. 18 Three principal matters are put forward. Firstly, it is said that it would be futile to grant the application. Secondly, it is said that the delay has not been adequately explained. Thirdly, it is said there is presumed prejudice. 19 I do not accept the contention that it would be futile to grant the relief sought. The medical reports (including those provided by Drs. Meldrum-Hanna and Jungfer) support the view that there is an arguable cause of action. However, the reports (including those from Dr Meldrum-Hanna) also show that if the claim is successful it can be expected to be in a modest quantum. This does not seem to be in dispute. Indeed, there is no dissent to a proposed remitting of the proceedings to the District Court. 20 I should add that the reports show that the plaintiff has had a good result from surgery, that he has made a good recovery and is fit to resume all normal work activities. His symptoms and subsequent disease process are said to be related to unmodified risk factors. 21 It seemed to me to be a case that should be the subject of expeditious resolution so as to avoid the incurring of disproportionate legal costs. 22 There are shortcomings in what is offered to explain how it came to be that the necessary steps were not taken prior to the expiry of the limitation period and delay generally. Some matters are put forward which provide at best partial explanation for the delay. A part of the delay took place during December and January when there are public holidays and the offices of solicitors are closed. The conduct of the matter was transferred by Mr Costa to Mr Rafferty upon the former going on holidays. 23 Largely, the position seems to be that the plaintiff was entitled to expect that the necessary action would be taken by his legal advisers within the limitation period and that their lack of diligence let him down. 24 Both solicitors involved have given evidence in support of the plaintiff's application. This evidence shows inter alia that junior counsel was slow in drafting the necessary documentation and that there was a lack of vigour on the part of those instructing him. 25 It is not said that there is any actual prejudice. The proposed second defendant has not placed any evidence before the court. I accept that there is presumptive prejudice. 26 The authorities demonstrate that the court should look to the question of whether the delay has made the chances of a fair trial unlikely. The authorities reveal that fairness is a matter of degree and that the concept of a fair trial is a relative one. In the particular circumstances of this case, I am of the view that a fair trial is still likely. 27 It seems to me that the plaintiff has just managed to discharge the onus of proof. Accordingly, in the circumstances of this case, I have reached the decision that it is just and reasonable to make the order sought and that such an order should be made in this case. 28 I extend the limitation period for the bringing of the proposed cause of action against the proposed second defendant (Dr Edwards). The plaintiff is to have leave to add Dr Edwards as a second defendant in the proceedings. Any Amended Statement of Claim is to be filed within 14 days. The plaintiff is to pay the costs of the Notice of Motion. The Exhibits may be returned. The proceedings are remitted to the District Court. ********** Last Modified: 05/11/2004 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.