In the recent matter of Hogan v Thornley [2025] NSWSC 640, the plaintiff (Mr Michael Joseph Hogan) commenced a medical negligence compensation claim against the defendant, Dr Stephen Thornley.
This is an application brought by the plaintiff by way of a notice of motion filed on 29 November 2024, seeking an order that the limitation period for his commencement of personal injury proceedings against a medical specialist, to whom he was referred by his general practitioner, be extended nunc pro tunc; that is, that the plaintiff be permitted to retrospectively rely upon the initiating filing that otherwise was filed out of time, pursuant to the relevant provisions of the Limitation Act 1969 (NSW). The order sought is that it be extended to 23 December 2020.
Between December 1997 and 2016, the plaintiff consulted his general practitioner, Dr Martin Jaffe (Dr Jaffe), reporting certain symptoms: a deterioration of memory, low energy levels and general fatigue and tiredness. In consultations over subsequent years, he continued to report the same symptoms to Dr Jaffe. In June 2003, Dr Jaffe referred the plaintiff to Dr Stephen Thornley (Dr Thornley), who is an endocrinologist, furnishing to him pathology results. The plaintiff was assessed by Dr Thornley on 23 July 2003 (their only consultation), who wrote to Dr Jaffe, “noting the plaintiff had abnormal thyroid function with a history of long standing lethargy, dyspnoea, hair loss, cold intolerance and a longstanding problem with memory” and advising that the plaintiff required further testing, review and a thyroid ultrasound. On 11 August 2003, Dr Thornley emailed the plaintiff advising that the blood test show that the thyroid level has normalised. Suggest progress blood test with GP in 3 months and then at 6 monthly intervals. On or about 3 September 2003, Dr Thornley advised Dr Jaffe, following test results, that in his opinion the thyroid function tests were essentially normal, and with further advice as to treatment.
The plaintiff’s health steadily declined and on 20 April 2016 he consulted another general practitioner, Dr Jodie Parker, who arranged for him to have a CT scan on 31 August 2017 and an MRI on 2 September 2017. The CT scan showed a likely macropituitary adenoma (a pituitary macroadenoma), which was confirmed by the MRI. The plaintiff was referred to a neurosurgeon, Dr Ali Ghahreman. Dr Ghahreman referred the plaintiff to an endocrinologist, Dr Terry Diamond, who advised that the plaintiff “…has been referred for assessment of an underlying endocrinopathy having recently been diagnosed with a pituitary macroadenoma. He has a striking history dating back to 2003 when he was probably misdiagnosed as having primary rather than secondary hypothyroidism and commenced on thyroxine. Since then his life has been a downhill spiral having developed memory loss, visual disturbance, balance disorder, weakness, profound lethargy, cold intolerance and erectile failure. The addition of thyroxine failed to improve his wellbeing. He recently attended for a CT assessment to exclude post concussion injury having been an active NRL and AFL sports player. He stopped working one year ago due to recurrent infections and dizzy spells. The recent CT confirmed an invasive pituitary tumour.” Dr Ghahreman removed the adenoma on 21 September 2017. On 22 September 2017, the plaintiff underwent further surgery to remove a suprasellar haematoma and on 1 October 2017, a craniotomy with evacuation of the haematoma. He was discharged from hospital on 3 November 2017.
The plaintiff pleaded that the risk of harm of a delayed diagnosis of secondary hypothyroidism and/or pituitary adenoma ought to have been foreseeable by a reasonable defendant in Dr Thornley’s position, that Dr Thornley was under a duty of care to take precautions against that harm and was in breach of it, as a result of which the plaintiff suffered injury, loss and damage. The plaintiff clarified in oral submission at the hearing of the motion that it is his case that the tumour existed (and was missed) at the time he was assessed by Dr Thornley.
In his defence, Dr Thornley pleaded section 5O of the Civil Liability Act 2002 (NSW); that he acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice, and that he did not incur any liability in negligence to the plaintiff. In further answer, Dr Thornley denied the claim pursuant to section 50C(1)(b) of the Limitation Act.
In its consideration, the Court provided as follows:
The plaintiff bears the onus to satisfy the Court that the discretion to extend the long-stop period should be exercised in his favour and that it would not involve a significant prejudice to the prospective defendant, although there is an evidentiary onus on the defendant to raise any consideration against the exercise of the discretion… [at 55].
The question for determination is: when was the cause of action discoverable? In my view, in the context of this factual matrix, that devolves to the question of: when was the plaintiff capable of instructing his solicitors that Dr Thornley had examined and advised him and/or Dr Jaffe in relation to his medical complaint; that is, when was he aware of it? [at 56].
Accordingly, the plaintiff’s memory impairment is relevant to what the plaintiff knew, or ought to have known. The plaintiff has reported having a worsening memory for at least 25 years. I accept that he did not recall having seen Dr Thornley, or his email communications, when he first retained Wyatts in this matter and gave them instructions on 15 and 27 November 2017, and therefore the cause of action was not discoverable at that time [at 58].
In my view, the plaintiff was entitled to expect that Prof Carter would have informed Wyatts of all relevant matters in his report, which relieves the expectation that he, the plaintiff, should have personally reported to Wyatts what Prof Carter had told him, assuming that he recalled that exchange after the conference, without prompting [at 61].
In the context of ss 50D(1) and (2), I am satisfied that the plaintiff’s impaired memory is factored into the reference to “the person”. It follows that I am satisfied he did not know of the factor identified in s 50D(1)(b) and that he had taken “all reasonable steps” to ascertain the identity of the relevant defendants, before it was brought to his attention on 10 February 2020 that he had been assessed by Dr Thornley. From that time, his solicitors investigated a possible action against Dr Thornley, culminating in him being joined on 23 December 2020 [at 62].
It is no answer to submit that the plaintiff did not instruct Wyatts that he attended an endocrinologist, because they were aware that he had an impaired memory. Relying exclusively on his instructions for a reliable account of which doctors he had consulted over the period of his medical complaint, which on his account dated back to the 1990’s, was unwise to say the least [at 66].
The pathology entry in A/Prof Clyne’s report, considered in isolation, should also have prompted Wyatts to request a Medicare Claims Record or to make other inquiries as to whether there was a Dr S. Thornley also providing medical services to the plaintiff concerning this issue. Wyatt’s failure to do so is ameliorated to some extent by the fact that a reading of A/Prof Clyne’s report, as a whole, suggests that he was of the view that Dr Jaffe had not consulted an appropriate specialist. Therefore, it may be inferred that A/Prof Clyne had proceeded on the basis that the reference to “Dr S. Thornley” was not to an endocrinologist [at 67].
In any event, the question for determination is what the plaintiff, and not his legal advisors, knew or ought to have known…Accordingly, I am satisfied that the plaintiff did not know that a cause of action against Dr Thornley was discoverable until 10 February 2020, and that he ought not have known of that fact before then [at 68].
As to the length and reasons for the delay (s 62B(1)(a)), the length is a factor that impacts on Dr Thornley. In my view, neither the plaintiff nor Dr Thornley are responsible for the delay. As to prejudice, the defendant has submitted that the lengthy delay prejudices him in that he does not have an independent memory of the consultation and this is confined to the content of the medical records and correspondence. However, it is also relevant, in my view, that the plaintiff is not in a position to allege actions by Dr Thornley beyond the records and correspondence, since he also has no recollection of what occurred [at 70].
The defendant also made submissions as to loss (s 62B(1)(c)), submitting that since the proceedings against Dr Jaffe have settled, the principle of double recovery will apply, if the limitation period is extended and he succeeds in his claim. In my view, this is not a significant factor against making the order sought [at 71].
Having regard to all the evidence and taking into account that, if Dr Jaffe’s solicitors had produced all relevant records on 15 December 2017 in response to Wyatt’s notice to produce, it is likely that this issue would not have arisen, I am satisfied that it is just and reasonable for the long-stop period to be extended to 23 December 2020 [at 72].
Ultimately, on 20 June 2025, the Supreme Court of New South Wales ordered as follows:
Pursuant to s 62A of the Limitation Act 1969 (NSW), the long-stop limitation period for the commencement of proceedings by the plaintiff is extended to 23 December 2020.
The issue of costs is referred to the Registrar.
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