The NSW Supreme Court considered what a plaintiff knew or ought to have known about a claim against a specialist when the plaintiff suffered from memory loss - the test was subjective and not what a reasonable person in the plaintiff's position knew or ought to have known.
In issue
- Whether to extend the long-stop limitation period under section 62A of the Limitation Act 1969(NSW).
The background
Between 1997 and 2016, the plaintiff reported experiencing symptoms including memory loss and fatigue. In 2003, the plaintiff was referred by his general practitioner to the defendant (Dr Thornley, endocrinologist) to investigate the symptoms. The defendant reported the plaintiff's thyroid function as essentially normal. The plaintiff continued to consult with the general practitioner in the years following his consultations with the defendant.
In 2016 and 2017, the plaintiff consulted with another general practitioner, neurosurgeon, and endocrinologist, and was diagnosed with a pituitary macroadenoma. The plaintiff subsequently initiated legal proceedings against his original general practitioner. The plaintiff later sought to join the defendant to the claim. The plaintiff asserted that he had no recollection of his 2003 consultation with the defendant, attributing the lapse to his memory issues.
The plaintiff's claim against the original general practitioner had resolved at the time of the limitation application.
The decision at trial
His Honour Justice Ierace considered whether to exercise discretion under section 62A to extend the limitation period, emphasising that the plaintiff bears the onus to demonstrate that doing so would not significantly prejudice the defendant.
Ultimately, the court exercised its discretion to extend the long-stop limitation period, allowing the plaintiff to proceed with his claim against the defendant.
In reaching its decision the court considered that in determining when the cause of action was discoverable, it was necessary to consider when was the plaintiff capable of providing instructions to his solicitors, i.e. when did the plaintiff become aware of the consultation?
The court described the appropriate test under section 50D(2) as considering what the plaintiff knew or ought to have known, not what a reasonable person in the plaintiff's position ought to have known. The court held that the plaintiff's memory impairment was relevant in assessing what he knew or ought to have known in this context. Further, the court highlighted the test is what the plaintiff, and not his legal advisors, knew or ought to have known.
As to the issue of prejudice to the defendant, the court took into consideration that neither the plaintiff nor defendant had independent memory of the 2003 consultation. It followed that both parties were confined to the content of medical records and correspondence and the defendant did not suffer any prejudice.
The court also noted that the general practitioner's solicitors had not initially produced all relevant records, including correspondence between the general practitioner and the defendant. The court considered the delay in producing all relevant records contributed to the delay in identifying the defendant's involvement.
Implications for you
This case highlights the court's approach to extending limitation periods in medical negligence cases, particularly when considering a plaintiff's subjective position (including memory issues) to determine when a plaintiff ought to know of a potential cause of action. It underscores the importance of the plaintiff's knowledge and the absence of significant prejudice to the defendant in such decisions.
Hogan v Thornley [2025] NSWSC 640
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