Suzanne Hardwick v Dr Patrick McSwiney [2009] NSWSC 522

New South Wales Supreme Court

CITATION : Suzanne Hardwick v Dr Patrick McSwiney [2009] NSWSC 522

HEARING DATE(S) : 20/04/09

JUDGMENT DATE : 1 May 2009

JUDGMENT OF : Patten AJ at 1

DECISION : See paragraph 37

LEGISLATION CITED : Limitation Act 1969

CASES CITED : Gett v Tabet [2009] NSWCA 76; Wardley Australia Ltd v Western Australia [1992]175 CCR 514;

Suzanne Hardwick - Plaintiff PARTIES : Dr Patrick McSwiney - First Defendant

FILE NUMBER(S) : SC 16608 of 2008

COUNSEL : Mr J Anderson - Plaintiff Mr D S Weinberger - First and Second Defendant

SOLICITORS : King Street Lawyers - Plaintiff P Tsaoudis - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

Patten AJ

1 May 2009

No: 16608 of 2008

Suzanne Hardwick - Plaintiff v Dr Patrick F McSwiney – First Defendant Dr Herbie Chee – Second Defendant

JUDGMENT 1 This is a summons whereby the Plaintiff (Mrs Hardwick) seeks an order pursuant to S60 C or alternatively S60 G of the Limitation Act (the Act), extending the time to commence proceedings against the Defendants, both of whom at relevant times were medical practitioners. The First Defendant (Dr McSwiney) who, according to his letterhead, was a Fellow of the Royal College of Surgeons and a Fellow of the Royal Australian College of Surgeons, was described in evidence before me as an ear, nose and throat specialist. The Second Defendant (Dr Chee) was a general practitioner at Ulladulla near where Mrs Hardwick lived at Mollymook. 2 The relevant facts are that in November 1992, Mrs Hardwick, a registered nurse, consulted Dr Chee, her then general practitioner, regarding "an ulcer on my tongue which was not healing". He referred her to Dr McSwiney whom she first consulted on 8 January 1993. He performed what she believed was "a biopsy on the right side of my tongue". 3 She consulted Dr McSwiney about a year later in February 1994 when he again performed what she understood to be "a biopsy". 4 Although, according to Mrs Hardwick's evidence, she did not see any biopsy report until she asked Dr Chee for copies in March 2008, the pathology report of Dr Alistair Lochhead dated 2 February 1994 is before the court as are four letters from Dr McSwiney to Dr Chee respectively dated 17 February 1993, 22 November 1993, 15 February 1994 and 12 September 1996. The substance of those letters, I infer, was conveyed by Dr Chee to Mrs Hardwick. 5 Dr Lochhead's histopathology report relevantly read: "Clinical details: "Lesion on tongue" Macroscopic appearance: Specimen consists of a mass 12 x 10 x5mm with mucosa reflected over one surface. Microscopic appearance: This biopsy from the tongue contains moderately dysplastic squamous epithelium. In its worst area the dysplastic surface epithelium extends to both lateral margins of the biopsy. Summary: Tongue – Epithelial Dysplasia." 6 I also set out omitting formal parts the four letters from Dr McSwiney to Dr Chee: 17 February 1993 "Thank you very much for asking me to see Mrs Hardwick, who has noticed an ulcerated area on the right side of her tongue for 8 months. On examination, she has an area of leukoplaki on the right side of her tongue. I will be organising her admission for its excision." 22 November 1993 "I reviewed Mrs Hardwick again on 15 November. Her tongue is still feeling sore and clinical examination showed once again, an area on the right border of the tongue just adjacent to her second mila, which was denuded of epithelium and was ulcerated in the centre. I think this is probably caused by trauma and I have asked her to see her dentist in this regard and I will be organising her admission to hospital for biopsic excision of the area." 15 February 1994 "I biopsied the lesion on this lady's tongue on 2 nd February. I enclose a copy of the histology report. She obviously requires to be kept under review and I have organised to see her again in 4 months time." 12 September 1996 "Thank you very much for asking me to see Mrs Hardwick, who has found that the left side of her tongue is still tender with hot food such as chillies. Clinical examination failed to reveal any abnormality and I have reassured her in this regard."