Lewicki v Hunter New England Local Health District

The Diagnosis: Left Testicular Cancer

1. In mid-2003, the plaintiff was diagnosed with left testicular cancer. A lymph node biopsy confirmed metastatic testicular cancer. The treatment involved a left orchidectomy and chemotherapy. The plaintiff's treating oncologist was Dr Rodney Aroney. At the time of this diagnosis, the plaintiff owned and worked at a boat brokerage business at Pelican Marina, Lake Macquarie.

Initial Treatment: Radical Orchidectomy and Chemotherapy

1. On 21 July 2003, the plaintiff underwent a radical orchidectomy, performed by Dr William Munro, general surgeon, followed by five courses of chemotherapy superintended by Dr Aroney. The five cycles of chemotherapy were administered over three months at the inpatient department at Gosford Hospital. The plaintiff ceased working at the boat brokerage business due to the chemotherapy treatment.
2. Following the second or third chemotherapy cycle, the plaintiff underwent further investigations, including abdominal radiology, which identified that he had two large lymph nodes on his inferior vena cava (the "IVC"). One was located lateral to the inferior mesenteric artery and the other was behind the IVC at the level of the renal artery entry. Those lymph nodes did not reduce in size despite the plaintiff completing his prescribed chemotherapy.
3. CT imaging ordered by Dr Aroney on completion of chemotherapy treatment demonstrated persistence of significant para-aortic adenopathy. A referral was made accordingly to Dr Grant, on 28 November 2003.

The Surgical Procedure by Dr Grant

1. On or around about 28 March 2003, the plaintiff had a consultation with Dr Grant at his medical practice in Charlestown. At that consultation, the plaintiff was advised that the two abdominal lymph nodes near his IVC should be surgically removed.

Admitted to John Hunter Hospital

1. On 16 January 2004, the plaintiff was admitted to an LHD hospital, namely, John Hunter Hospital, under the care of Dr Grant, for a retroperitoneal lymph node dissection ("the surgery").
2. During the surgery, the following relevantly occurred: 1. the plaintiff's IVC was perforated; 2. the plaintiff's IVC was repaired by "oversewing"; 3. when removing the para-aortic nodes from the plaintiff's left kidney region, the inferior pole of the renal artery was torn (avulsed); and 4. the tearing of the inferior pole of the renal artery was also repaired by oversewing.

The Post-Operative Condition of the Plaintiff

1. Post-operatively, the plaintiff was admitted to the High Dependency Unit ("HDU"). The plaintiff had abdominal distension without tenderness and there were no abdominal drains.
2. The plaintiff conceded that he was aware that he suffered post-operative complications following the 16 January 2004 surgery. The plaintiff gave evidence of the following complications: 1. On 17 January 2004, he had reduced urinary output and hypertension. Further, the plaintiff had increased abdominal distention and pain and was noted to have generalised oedema, both centrally and peripherally. Over the following days his central and peripheral oedema significantly increased causing, inter alia, oozing from his abdominal suture lines. 2. By 28 January 2004, the plaintiff was draining daily approximately 700-1000 millilitres of fluid from his abdominal suture lines. Some of the abdominal sutures/staples were subsequently removed, which resulted in wound separation (dehiscence) that increased with time. The plaintiff's abdominal wound became infected and was discharging pus. 3. On 19 January 2004, the plainitff was informed by either the medical staff of LHD or by Dr Grant that he had "bilateral deep vein thromboses", which was the likely cause for his post-operative oedema and other symptoms.

Subsequent Surgeries and Medical Treatment between 2004-2005

1. On 2 February 2004, the plaintiff underwent another surgical procedure to repair his abdominal wound.
2. On 20 February 2004, the Dr Grant reported to the medical oncologist by letter.
3. On 24 February 2004, the plaintiff was discharged from the hospital and went home with abdominal wound dehiscence, which required at home treatment from the community nurse.
4. On or about 8 March 2004, the plaintiff attended Wyong Hospital Emergency Department due to pus coming from his abdominal wound.
5. The plaintiff gave evidence that he intended to return to work at his boat brokerage business but was unable to due to the complications of the surgery. Further, he was forced to abandon the boat brokerage business as he was unable to find a purchaser.
6. On 5 October 2004, the plaintiff was admitted to the LHD's hospital under the care of Dr Gani, a general surgeon, for surgical closure of his abdominal wound. The proposed surgical procedure was a laparoscopic assisted incisional mesh hemioplasty. However, that hernioplasty procedure ultimately failed.
7. On 9 March 2005, the plaintiff was readmitted to the LHD's hospital for another laparoscopic assisted incisional mesh hernioplasty procedure, which also failed.

Medical Treatment between 2005-2009

1. From March 2005 to February 2009, the plaintiff received outpatient treatment from Gosford Hospital for his incisional hernias and ongoing lymphoedema.
2. In 2007, the plaintiff sought review from Dr Gani who did not recommend any further treatments or procedures at that time.

Admission to Gosford Hospital in 2009

1. On 14 April 2009, the plaintiff was admitted to Gosford Hospital via the Emergency Department, suffering from a bowel obstruction which was allegedly secondary to a strangulated hernia. The plaintiff was admitted to hospital and the strangulated hernia was managed without surgery. The plaintiff had a large abdominal incisional hernia.

Purchase and Sale of Newsagency

1. In 2011, the plaintiff purchased a newsagency with his wife for $110,000. The plaintiff gave evidence that he and his wife intended to run the business together, so that he could work part-time.
2. In 2015, following the series of below mentioned operations that the plaintiff underwent in 2015 and his wife becoming his sole carer, the plaintiff and his wife could no longer work in the newsagency. The business was sold for $40,000.
3. The plaintiff has not worked since the sale of the newsagency.

Further Medical Issues: 2011-2014

1. During 2011, the plaintiff developed wounds on his lower legs. The plaintiff was referred by Dr Green to Dr Meek, a vascular surgeon. The plaintiff attended Lake Haven Health Centre Community Nursing Clinic for wound dressing, which continued under November 2011.
2. On or around 4 June 2012, the plaintiff attended Wyong Hospital and was diagnosed with diabetes.
3. In 2014, the plaintiff developed further open wounds in his abdomen; the cause of which was unknown.
4. In 2014, the plaintiff sought legal advice, which I will return to below following a summary of the plaintiff's medical issues in 2015.

Admitted to Gosford Hospital

1. On or about 29 May 2015, the plaintiff was admitted to Gosford Hospital with a strangulated hernia. Dr Shannon Di Lernia performed a small bowel resection and repair of the strangulated hernia.
2. On 5 June 2015, Dr Di Lernia performed a repair of the plaintiff's ventral hernia at Gosford Hospital.
3. On 25 June 2015, the plaintiff had surgery performed by Dr Di Lernia at Gosford Hospital. He performed a laparotomy, division of adhesions and a small bowel resection. Following this surgery the plaintiff was admitted to Wyong Hospital with sepsis. He was discharged on 6 July 2015.

Admitted to Wyong Hospital

1. The plaintiff was again admitted to Wyong Hospital on 7 September 2015 with fever. Dr Di Lernia debrided an abdominal wall abscess on 11 September 2015 and the plaintiff was discharged on 12 September 2015. Again, the plaintiff was admitted to Wyong Hospital on 4 October 2015 with infection. He was discharged home on or about 7 October 2015.

Plaintiff Retains Legal Representation

1. On or about 25 November 2014, the plaintiff made preliminary contact with Monaco Solicitors. Mr Porterhouse stated in his affidavit that "there were no records, documents or statements available during that consultation".
2. On or about 27 November 2014, the plaintiff was sent a letter by Monaco Solicitors that contained various documents relating to, inter alia, the legal retainer and legal costs.

The authorities

1. On 8 February 2015, the plaintiff was sent an initial letter of advice from Monaco Solicitors attaching, inter alia, Medicare authorities, Australian Tax Office authorities and Centrelink authorities (collectively, "the authorities"), that were to be executed and returned to Monaco Solicitors.
2. The plaintiff returned the signed authorities to Monaco Solicitors on or about 20 May 2015.

Clinical records requested

1. Upon receipt of the signed authorities, or shortly thereafter, Monaco Solicitors requested the clinical records from Warnervale GP Superclinic, John Hunter Hospital, Wyong Hospital and Gosford Hospital (collectively, "the hospitals").
2. The following tax invoices were returned from the hospitals to Monaco Solicitors on the following dates: 1. On 3 June 2015, tax invoice from John Hunter Hospital; 2. On 16 June 2015, tax invoice from Warnervale GP Superclinic; and 3. On or around 30 October 2015, tax invoice from Gosford Hospital. (No tax invoice appears to have been received with respect to Wyong Hospital).
3. However, Mr Porterhouse deposed that, notwithstanding the payment and receipt of the various tax invoices, Monaco Solicitors did not receive the requested clinical records. Mr Porterhouse stated that, as per Monaco Solicitors' policy to maintain and review requests and production of medical records, various reminder letters were sent to the doctors and hospitals seeking production.

Receipt of clinical records

1. Between June and November 2015, the plaintiff's solicitor received the first tranche of medical records, some of which were incomplete. However, the precise date of receipt for some documents is unknown as the former administration staff of Monaco Lawyers did not record the date on which the clinical records from John Hunter Hospital and Warnervale GP Superclinic were received.
2. The clinical records produced with respect to Warnervale Superclinic, covered the period of treatment from 25 May 2012 to 12 June 2015. The relevant historical correspondence concerning the plaintiff's medical treatment predating 22 May 2012 was not provided.
3. The clinical records of Gosford Hospital were received on 2 November 2015.

Counsel briefed

1. On 19 April 2016, counsel was briefed and provided with the various clinical records received by Monaco Solicitors.
2. On 27 April 2016, a teleconference was held between a former employee of Monaco Solicitors and counsel, in which counsel advised that expert opinion was required from a urologist and a vascular surgeon in order to determine liability and causation.
3. On 1 December 2016, the former solicitor of Monaco Solicitors sent a letter of instruction to Aspen Medico Legal requesting an opinion from a vascular surgeon.

Initial correspondence with Dr Niesche

1. On 6 December 2016, Monaco Solicitors had a telephone conference with Dr John Niesche, a vascular surgeon. Mr Niesche advised that he required pre-operative clinical records in order to provide an advice.
2. On 16 February 2017, Monaco Solicitors sent Dr Niesche further clinical records from John Hunter Hospital for consideration.
3. On 13 March 2017, Mr Porterhouse had a telephone conference with Dr Niesche. (It may be noted, it was at this time, Mr Porterhouse assumed carriage of the plaintiff's matter).

The Niesche Report

1. On 5 April 2017, Dr Niesche produced a medico-legal report with respect to his "independent medico-legal opinion regarding Shaun Lewicki" ("the Niesche Report").
2. The Niesche Report was based upon the following documents: 1. clinical notes from Wyong Hospital; 2. clinical notes from John Hunter Hospital; 3. a histopathology report, dated 6 January 2004; and 4. a report of Dr Grant, dated 20 February 2004.
3. The Niesche Report set out a comprehensive summary of the plaintiff's medical background, including admissions into hospital, a summary of relevant surgeries, diagnoses and complications, as well as treatment and recommendations provided by various health practitioners. In light of the earlier factual background, it is unnecessary to set out that summary.
4. By that report, Dr Niesche also gave his opinion with respect to two specific questions put by the plaintiff's solicitors, namely: 1. We would appreciate an opinion from a vascular medical professional as to what could have been done from a vascular perspective in 2004 to prevent our client's injuries and whether a vascular surgeon should have been called at the time of the procedure. 2. We would also appreciate your opinion as to whether or not the post-operative anticoagulation was sufficient enough to combat the potential DVT that were going to arise.
5. In response to the first question, with respect to preventative measures, Dr Niesche opined: It was already recognised that following chemotherapy that there were residual masses in relation to the IVC and a larger mass to the left of the aorta most likely Teratoma. Although serious bleeding is uncommon, retroperitoneal lymph node dissection is a difficult procedure and always carries the risk of vascular damage. Following chemotherapy, the dissection may be even more difficult as the lymph nodes made become adherent to the aorta, vena cava or other organs. It therefore would have been prudent to have had a vascular surgeon present at the time of the retroperitoneal dissection in order to aid in dissection and protection of major vessels. The method of control of bleeding, handling of the IVC, and repair of the multiple perforations of the IVC apart from oversewing are not recorded, and it is difficult to known from the records how significant the bleeding was, or if there was difficulty in control of the IVC. As there were a number of perforations made in the IVC (with presumably significant bleeding, although this is not stated), a vascular surgeon if present, would have a better appreciation of the implication of the vascular injury, and experience with handling major vessels would put a vascular surgeon in a better position to control the bleeding and repair if possible the IVC satisfactory. If a vascular surgeon had been present at the time of the surgery and carried out the repair of the IVC, narrowing or disturbed flow would have been recognised and dealt with accordingly and thrombosis of the IVC possibly avoided. DVT and thrombosis of the IVC was not recognised for three days. A vascular surgeon would have understood the implication of damage to the IVC and its' repair, and would have been aware of the need for clinical examination of the lower limbs in the immediate post-operative period and, if necessary review with ultrasound. Control of bleeding from the lVC can be difficult, and once controlled, repair may be carried out by primary suture or possibly the use of a graft if there is severe damage or possibility of significant narrowing. With respect of the avulsion of the lower pole left renal artery, it is difficult to know if avulsion could have been avoided nevertheless, it is unlikely that a successful repair would have been possible and oversewing with loss of left lower pole renal function was appropriate under the circumstances.
6. Turning the second question vis-à-vis the sufficiency of post-operative anticoagulation in combatting "the potential DVT", Dr Niesche opined: In the normal course of events the post-operative use of 5000 units of subcutaneous heparin bd was consistent with standard practice to prevent venous thromboembolism. It is not known when the IVC and iliac vein thromboses occurred, but is most likely to have been in the immediate post-operative period. The DVT was not recognised until three days post-surgery when clinically there was swelling of both lower limbs. On diagnosis of thrombosis of the IVC and iliac veins it was appropriate that full heparinisation intravenously was immediately commenced according to accepted standard practice. While further intervention to treat the DVT was possible, it was impractical due to the nature of the bleeding in the post-operative period and the extent of his surgery. I agree with Prof. Myer's conservative approach.
7. The plaintiff submitted that, whilst Dr Niesche did not specifically address the issue of breach of duty of care, his report provided the "causal mechanism" between the surgery and/or post-operative care and the plaintiff's subsequent injuries and disabilities.

Plaintiff Conference with Legal Representation

1. On 28 June 2017, the plaintiff attended upon the offices of Monaco Solicitors for a face-to-face conference. The purpose of that conference was to explain to the plaintiff the progress of the matter and to advise him in respect of the limitation issue.
2. At the conference, the plaintiff attended to the following: 1. provided the details of his current treatment providers, namely, Dr Stephen Green, General Practitioner, and Dr Di Lernia, General Surgeon; 2. advised that he held the originals of various radiological scans taken over the years; 3. advised that Dr Green had been his treating GP prior to and subsequent to his surgery on 16 January 2004; and 4. advised that Dr Green had moved premises in about 2012, which may account for the absence of records prior to 2012.
3. At that conference, the plaintiff was also given a copy of the Niesche report.
4. Following that conference, Monaco Solicitors arranged for the collection of the abovementioned radiology records, within the plaintiff's possession, on 11 July 2017.

Further Requests & Difficulties Obtaining Clinical Records

1. On 12 July 2017, Monaco Solicitors submitted requests for the relevant clinical notes of Drs Grant and Di Lernia, as well as updated records from Dr Green for the period prior to 22 May 2012.
2. Shortly after the request made to the offices of Dr Grant, Mr Porterhouse was advised that the requested notes had been destroyed.
3. On 14 July 2017, Mr Porterhouse received and paid an invoice from Dr Di Lernia. Whilst the clinical records were received, the date of receipt was not recorded.
4. On 25 July 2017, the plaintiff was advised that Monaco Solicitors were obtaining copies of multiple imaging studies conducted during his various admissions so that they could be briefed for the purposes of the expert report.
5. On 26 July 2017, Warnervale Superclinic contacted Monaco Solicitors and informed them that the plaintiff was treated at another clinic which had closed down. That clinic had since been purchased by Wyoming Medical and Dental Centre and the relevant records that were sought may be in their storage.
6. On 10 August 2017, Mr Porterhouse sent a further letter to Dr Niesche providing him with copies of the plaintiff's radiology records. While no report was generated by Dr Niesche in response to this letter of instruction, a telephone conference took place between Mr Porterhouse and Dr Niesche on 21 August 2017.
7. On 11 August 2017, Mr Porterhouse requested from Wyoming Medical and Dental Centre to produce the clinical notes of Dr Green for the period prior to 22 May 2012.

Telephone Conferences: Dr Niesche and Mr Porterhouse

Teleconference - 2 May 2017

1. On 2 May 2017, Mr Porterhouse had a teleconference with Dr Niesche regarding, inter alia, the need to obtain additional information in order to determine what knowledge was available prior to the surgical procedure. The pre-operative abdominal MRI or CT scans would be of some assistance. Further, he stated that details of how the IVC was damaged, the extent of the damage, and precisely how it was repaired was not clearly evident from the clinical records. He stated that it would be a great assistance if further information could be obtained and sent to him for review.

Teleconference - 21 August 2017

1. On 21 August 2017, a telephone conference was conducted between Mr Porterhouse and Dr Niesche, regarding his review of the plaintiff's radiological films, in particular, any pre-operative abdominal MRI or CT scan.
2. Dr Niesche advised him that the pre-operative abdominal imaging did not assist him in providing his opinion. Further, there was a general discussion between Mr Porterhouse and Dr Niesche regarding the cause of the plaintiff's wound dehiscence and subsequent multiple abdominal hernias. Following this telephone conversation, Mr Porterhouse sought instructions to qualify a general surgeon.
3. On 6 September 2017, Mr Porterhouse sent a letter to the plaintiff confirming that he would be seeking a medico-legal report from a general surgeon to comment on the cause of his multiple abdominal incisional hernias and treatment for same.

The Report of Prof David Morris

1. On 3 October 2017, Professor David Morris, a medico-legal expert, was requested to investigate whether LHD and/or Dr Grant departed from acceptable standards of care and if that departure caused or materially contributed to the plaintiff's injuries and disabilities. On 5 October 2017, Mr Porterhouse had a telephone conference with Professor Morris.

The Morris Report

1. On 8 October 2017, the plaintiff's solicitor received the medico-legal report of Professor Morris, dated 8 October 2017 ("the Morris report").
2. In that report, Prof Morris was provided with the following questions to answer: 1. Was the retroperitoneal lymph node dissection indicated on the history? 2. If so, and noting Dr Grant's finding that the smallish masses were behind the IVC, should a vascular surgeon have been: 1. Consulted prior to the surgery? 2. Part of the surgical team? 3. Consulted during the surgery once there was a perforation to the vena cava which required surgical repair? 4. Consulted in respect of post-operative management in respect of anti-coagulation and/or other complications likely to arise from the surgery? 1. Was the plaintiff's post-surgical management appropriate? If not, please explain your reasons. 2. Should the DVT have been detected prior to 19 January 2004? If so, when should the DVT have been diagnosed. 3. What difference would earlier diagnosis have made to medical outcome? 4. Any other matter you consider to be of significance?
3. In reply to the first question, Prof Morris opined: Clearly it is very unfortunate that the lymph nodes removed were benign, however we know from Dr Aroney that this patient's testicular tumour had mixed embryonal and choriocarcinoma component evidenced by a high AFP and abnormal HCG in June 2003. By September 2003 both of these tumour markers were normal following chemotherapy.
4. As to the series of questions relating to conduct of "a vascular surgeon", Prof Morris opined: 1. Consultation with a vascular surgeon prior to surgery was not essential and "certainly not my practice". 2. A vascular surgeon should not have been part of the surgical team, "[p]rovided Dr Grant regularly repairs vena cava injuries". 3. As to whether consultation with a vascular surgeon, following a perforation which required repair, Prof Morris opined: This depends entirely on how complex the repair was that was required and whether Dr Grant was able to do this. If the repair led to narrowing of the vena cava which does seem very likely then this in my opinion was the cause of the caval thrombosis and this would have caused the abdominal swelling, it would have significantly increased the risk of the dehiscence and would have caused the leg swelling and chronic venous insufficiency. If there was a stenosis created during the surgery then I think that the involvement of a vascular surgeon during the first operation would have been mandatory. 1. Consultation with a vascular surgeon in respect of post-operative management in respect of anti-coagulation and/or complication likely to arise from the surgery "would have been wise and may have led to a better outcome".
5. As to whether or not the plaintiff's post-surgical management was appropriate, Prof Morris considered it was not. He explained: No. I don't think that it was appropriate in that there must have been a high index of suspicion that the vena cava was going to thrombose and in this situation the use of full post­operative anti-coagulation after a number of hours would have been appropriate as would close monitoring by ultrasound of flow in the femoral veins.
6. Turning to his opinion as to whether the DVT should have been detected prior to 19 January 2004, Prof Morris opined: Yes. In my opinion this should have been. The nursing entry on 18th January 2004 at 20.45 hours makes it very clear that there were very significant changes in the legs, and I am sure they were present somewhat earlier than this. It was almost another 24 hours before the diagnosis was made.
7. In answer to the question concerning the difference an "earlier diagnosis [would] have made to the medical outcome" he stated: The earlier diagnosis of the caval thrombosis would have allowed a vascular surgeon to reconstruct the inferior vena cava and remove the clot in the legs. It is very likely, certainly well beyond a 50/50 chance that this would have avoided the caval thrombosis and massive swelling of the lower part of the body.
8. In that report Professor Morris opined that, it is more likely than not, the repair to the IVC led to the narrowing of the plaintiff's IVC and the development of the caval thrombosis. Thus, it was the caval thrombosis that caused or materially contributed to abdominal swelling and set in train the plaintiff's subsequent wound dehiscence and peripheral oedema.
9. Furthermore, Professor Morris opined that there should have been a high index of suspicion of the repaired IVC thrombosing which required full post-operative anticoagulation and close monitoring.
10. Professor Morris did not specifically address the duty of care issue but his report implied that the defendants departed from acceptable standards of care and that that departure caused or materially contributed to the plaintiff's injuries and disabilities.

Plaintiff's response to the Morris Report

1. In November 2017, the plaintiff was advised of the contents of Professor Morris's report.
2. Upon receipt of that advice, the plaintiff submitted that he became aware that the defendants were, prima facie, responsible for his injuries and disabilities arising from his retroperitoneal lymph node dissection procedure.

Plaintiff's Preparation of an Application for an Extension of Time

1. On 21 March 2018, Mr Porterhouse had a conference with the plaintiff, his wife and counsel, for the purpose of discussing the preparation of an application for an extension of time in which to file the statement of claim. Following that conference, Mr Porterhouse received a draft statement of claim from counsel, via email, on 4 May 2018.
2. On 7 May 2018, Mr Porterhouse received a draft affidavit of the plaintiff, which had been settled by counsel.

PRIVILEGE

1. An issue arose at hearing during the giving of oral evidence regarding legal professional privilege.
2. The plaintiff relied upon the affidavit of his solicitor, Mr Porthouse affirmed 5 July 2018 ("Mr Porthouse's affidavit"). Exhibited to Mr Porthouse's affidavit was the Niesche Report. As outlined above, Dr Niesche had been qualified by the plaintiff to provide a medico-legal opinion.
3. Following the provision of the Niesche Report, he and Mr Porthouse discussed the plaintiff's case via two telephone conferences which occurred on 2 May and 21 August 2017.
4. Paragraphs 34 and 48 of Mr Porthouse's affidavit refer to those telephone conferences, and provide: 34. On 2 May 2017, I had a teleconference with Dr Niesche regarding, inter alia, the need to obtain the additional information in order to determine what knowledge was available prior to the surgical procedure. The pre-operative abdominal MRI or CT scans would be of some assistance. Further, he stated that details of how the inferior vena cava was damaged, the extent of the damage, and precisely how it was repaired was not clearly evident from the clinical records. He stated that it would be a great assistance if further information could be obtained and sent to him for review. … 48. On 21 August 2017, I had a teleconference with Dr Niesche, regarding, inter alia, his review of Mr Lewicki's radiological films, in particular any pre-operative abdominal MRI or CT scan. I was advised that the pre-operative abdominal imaging did not assist him in providing his opinion. Further, there was a general discussion on the cause of Mr Lewicki's wound dehiscence and subsequent multiple abdominal hernias. Following that conversation I sought instructions to qualify a general surgeon.
5. The 21 August 2017 telephone conference was foreshadowed in the solicitor's letter to Dr Niesche of 10 August 2017. The writer invited Dr Niesche to comment on three specific matters and noted that the benefit of a conference "as to the matters discussed in this letter" would be appreciated.
6. During the course of the cross-examination of Mr Porthouse, on 29 April 2019, the following questions were asked: Q. You tell us that you spoke with a vascular surgeon on 13 March 2017; was that Dr Niesche? A. Dr Niesche, correct. Q. And you set out at paragraph 34 in your affidavit information concerning a further telephone conference with Dr Niesche regarding the matters that you set out there, which I won't read? A. Yes. Q. Do you have a file note of that telephone conference? A. I have a transcript of the conversation. Q. That doesn't appear to be exhibited to your affidavit? A. No. Q. Is there any reason for that? A. I believe it is protected by privilege.
7. Thereupon, a call was made by the defendants for the transcripts and/or file notes of telephone conferences of 2 May 2017 and 21 August 2017 between Mr Porthouse and Dr Niesche referred to in the paragraphs 34 and 48 of Mr Porthouse's affidavit on the basis of disclosure waiver.
8. The call was answered by the plaintiff subject to an objection upon the ground of relevance and legal professional privilege.
9. Counsel developed short oral submissions on the issue, after which the parties accepted that the Court would make a ruling on the objection to the defendant's call for transcripts and/or file notes corresponding to paragraphs 34 and 48 of Mr Porthouse's affidavit in advance of reasons for judgment.
10. On 17 April 2019 the parties each filed written submissions which can be distilled as follows.

Defendants' Submissions

1. The defendant submitted that the purpose for which the plaintiff relies on the disclosure is irrelevant to the question whether the deployment of that evidence operates to waive privilege.
2. Counsel contended that it was plain that the plaintiff sought, in some way, to secure a forensic advantage by disclosing, inter alia, that Dr Niesche reportedly advised that imaging performed prior to the surgery carried out on 16 January 2004 did not assist Dr Niesche in providing his opinion.
3. The defendants submitted that the statements in Mr Porthouse's affidavit contains a summary of the advice given by Dr Niesche in the telephone conferences which is inconsistent with the privilege that otherwise would attach to the record of that advice. It follows that it would be unfair to deny the defendants the opportunity to scrutinise the records and test their accuracy and completeness.

Plaintiff's Submissions

1. The plaintiff submitted that the Court's enquiry for the purposes of the present application is to focus on discoverability in determining whether it is just and reasonable for extend the 12 year long-stop limitation period: s 62A of the Act. This enquiry does not require consideration as to whether uncontested medico-legal evidence is sufficiently robust to withstand the wind of litigation.
2. Therefore the plaintiff submitted that disclosure waiver was irrelevant to this application. Rather, the sole purpose of the evidence is for the determination of whether and when the plaintiff discovered his cause of action.
3. Whether the plaintiff relies on the Niesche Report in substantive proceedings, should the present application succeed, will be determined subsequently. If at that point, the Niesche Report is relied upon the issues of legal professional waiver can be raised and explored.
4. For the purposes of this application, the Niesche Report goes to the discrete issue of "discoverability" as does the Morris Report. To that end it is difficult to reconcile that the plaintiff in some way seeks to secure a forensic advantage claiming privilege over those discussions.
5. The release of the file notes does not assist the Court in its evaluation whether or not to exercise its discretion, but it will add to the cost and court time for no 'forensic benefit'.

The 3 May 2019 Ruling

1. On 3 May 2019, the Court made the following ruling: The contents of para 34 of Mr Porthouse's affidavit does not constitute disclosure waiver. The Court does not order the production of the transcripts and/or file notes of that teleconference. The applicant adduced, inter alia, para 48 of Mr Porthouse's affidavit as evidence relevant to the disposition of the application brought by the summons filed by the applicant on 26 July 2018 by which the applicant sought an extension of time in which to commence proceedings against the respondents pursuant to s 62A(1) of the Limitation Act 1969 (NSW). By sentences 3 and 4 of para 48 of Mr Porterhouse's affidavit, there was a partial disclosure of the contents of the discussion between Mr Porthouse and Dr Niesche which constituted a disclosure waiver of the contents of that teleconference between Mr Porthouse and Dr Niesche. On the call by the respondents the Court orders the applicant shall provide to the respondents a true copy of the transcript and/or file note made of the teleconference of 21 August 2017 which material was to be provided by counsel for the applicant in answer to that call made on 16 April 2019.

Applicable Legislation

1. Pursuant to s 122(3) of the Evidence Act 1995 (NSW), disclosure waiver occurs, and client legal privilege is lost, where "the substance of the evidence" is "disclosed". For present purposes, subss (1)-(3) inclusive are relevant. They provide: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if - (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

Reasons for ruling

1. In Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as trustee for the Thornleigh Trading Trust) [2018] NSWSC 136, Harrison J (at [7]) stated: [7] The [disclosure waiver] principle applies notwithstanding that the disclosure occurs in the final hearing or at some earlier stage, such as in response to a notice to produce or in an affidavit in response to an interlocutory application. [Citations omitted.]
2. I reject, therefore, the plaintiff's submission that the dispute as to disclosure waiver is not relevant to the present application. Nor that the present application is not the correct forum in which to determine this dispute.
3. In Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [29], the High Court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said that: [29] What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
4. In Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 488; [1986] HCA 80, the High Court (per Mason and Brennan JJ) said that: … The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains: '[W]hen his conduct touches upon a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder' (Wigmore, Evidence in Trials at Common Law (1961), vol. 8, par. 2327, p 636). In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: see Great Atlantic Insurance Co. v Home Insurance Co.
5. Paragraph 34 of Mr Porthouse's affidavit describes the 2 May 2017 telephone conference in general terms. It solely recounts that Dr Niesche, in reviewing the damage and repair of the plaintiff's IVC on 16 January 2004, discussed that he would be further assisted through the provision of additional information including pre-operative abdominal MRI or CT scans. Paragraph 34 pertains broadly to the subject matter of the telephone conference. It details that a telephone conference occurred whereby Mr Porthouse received a medical opinion regarding the cause of the plaintiff's IVC injury and nothing more. It does not constitute a disclosure and privilege consequently was not waived.
6. For the same reason, paragraph 48 sentences 1 and 2 do not constitute disclosure waiver.
7. Paragraph 48, sentences 3 and 4, do however disclose in finer detail the subject matter of the 21 August 2017 telephone conference. The gist of the conversation, i.e. "general discussion on the cause of [the Plaintiff's] wound dehiscence and subsequent multiple abdominal hernias", was disclosed by sentence 3. Further, sentence 4 impresses that the telephone conference caused Mr Porthouse to seek the plaintiff's instructions to qualify a general surgeon. This partial disclosure was made voluntarily and is inconsistent with the maintenance of confidentiality. It is for this reason that the plaintiff waived privilege to the transcript of 21 August 2017 telephone conference and the Court made the abovementioned finding as to disclosure.
8. I now return the question of whether the Court should order to extend the 12 year long-stop limitation period by considering the relevant statutory provisions.

RELEVANT LEGISLATION

1. The parties agreed that, as this is a personal injury matter, Div 6 of Pt 2 of the Act applied. Section 50C of the Act relevantly provides: 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: … (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. Note: The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3. …
2. Division 4 of Pt 3 of the Act relevantly contains ss 62A, 62B and 62F which provide as follows: 62A Extension of 12 year long-stop limitation period (1) A person claiming to have a cause of action to which Division 6 of Part 2 applies may apply to a court for the extension of the 12 year long-stop limitation period applicable to the cause of action under that Division. (2) The court is to hear such of the persons likely to be affected by the application as it sees fit and may, if it decides that it is just and reasonable to do so, order the extension of the 12 year long-stop limitation period applicable to the cause of action for such period as the court determines, but not so as to extend that period beyond the period of 3 years after the date on which the cause of action is discoverable (within the meaning of Division 6 of Part 2) by the plaintiff. … 62B Matters to be considered in determining application for extension of 12 year long-stop limitation period (1) In exercising the powers conferred on it by section 62A, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay, (b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available, (c) the nature and extent of the plaintiff's injury or loss, (d) any conduct of the defendant that induced the plaintiff to delay bringing the action, (e) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received, (f) the time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff. … 62F Effect of expiry of limitation period prior to extension (1) Applications and orders may be made under this Division as if Division 1 of Part 4 [regarding the extinction of right and title] had never been in force. (2) An order under this Division in respect of a limitation period, and an application for such an order, may be made under this Division even though the limitation period has already expired. (3) If a limitation period that has expired is extended by order under this Division, that expiration of the limitation period has no effect for the purposes of this Act.
3. Section 62A(2) of the Act states that the Court cannot extend the 12 year long-stop limitation period "beyond the period of 3 years after the date on which the cause of action is discoverable (within the meaning of Division 6 of Part 2) by the plaintiff". Division 6 of Part 2 contains s 50D, which provides: 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. …

SUBMISSIONS

1. The parties provided the following submissions: 1. Plaintiff's Written Submissions filed 29 March 2019; 2. Plaintiff's Supplementary Written Submissions filed 8 May 2019; 3. Defendant's Written Submissions filed 15 April 2019; and 4. Defendants Further Written Submissions filed 16 May 2019.

Matters to be considered in determining application for extension of 12 year long-stop limitation period: s 62B(1)(a)-(e)

Section 62B(1)(a): the length of and reasons for the delay

1. The plaintiff submitted that there are several reasons for the delay. He was unaware of what caused his post-operative injuries and disabilities prior to his receipt of expert medico-legal reports. As at November 2014, when the plaintiff contacted his solicitors, he did not know what, if any, legal claim was available to him. He gave evidence that he had not been told that he would develop lymphoedema. He was not aware, until advised by his solicitor, that that damage to his IVC was the cause of his subsequent thromboses and oedema/lymphoedema and possible chronic venous insufficiency. Further, the plaintiff was not advised and/or aware of the impact that his lower limb oedema/venous insufficiency would have on his future. The plaintiff, however, submitted that once he became aware of these facts he acted expeditiously.
2. The plaintiff became aware, to some degree, of the 12year long-stop limitation period following contact with his solicitor in November 2014. He gave evidence that there was a reference to a 12 year cut-off point included in disclosure documents, which he had been provided by his solicitor. However, counsel for the plaintiff submitted that the plaintiff did not truly understand the implications and ramifications of the 12 year limitation period, nor did he know that it would expire in January 2016.
3. The plaintiff's wife was a nurse whom, until 2011, was employed by the first defendant. Further, she worked with several of the plaintiff's treating medical practitioners, including Dr Grant. The plaintiff submitted that he did not want to compromise his wife's professional relationships nor jeopardise her employment through an investigation of his legal rights. This circumstance prevented him from doing so at an earlier time.
4. Prior to October 2011, the plaintiff was unable to return to work in any meaningful way due to his lower limb oedema. However, in October 2011 he and his wife bought the newsagency, which was done in an attempt to normalise his life as best they could. The plaintiff gave oral testimony that during that period he was focused on building that business.
5. Another reason for the delay was due to the investigation by his solicitors requiring the collection, review and analysis of medical records which covered a period of more than ten years. Staff turnover at Monaco Solicitors also resulted in changes to the solicitor with carriage of the plaintiff's matter.
6. Further, the plaintiff was responsible for some of the costs incurred in course of his solicitor's investigation. He experienced some difficulty in providing the funds for medical records and medico-legal reports.
7. Ultimately, there were two chief factors which prompted the plaintiff to retain legal representation. First, in 2014 his bowel began to frequently protrude through his hernia. Second, it was confirmed that he was unable to work in any capacity.
8. Finally, I note that counsel for the plaintiff submitted one other reason for delay was that a legal practitioner could not be instructed to commence proceedings prior to the receipt of the medico-legal reports without said practitioner breaching cl 4 of Sch 2 of the Legal Profession Uniform Law Application Act 2014 (NSW). That is, until receipt of those reports, the prospective proceedings did not have reasonable prospects of success. However, the purview of s 50D solely concerns the facts that a plaintiff himself did (or, ought to) know. The plaintiff cannot logically claim that his delay was caused by a lack of understanding as to the 12 year long-stop limitation period but also assert that another contributing factor for that delay was his consideration of the ethical standards to which legal practitioners must adhere. This submission is incongruent and untenable. I reject it.

Section 62B(1)(b): the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available

1. The plaintiff submitted that there is no real or substantive prejudice to either of the defendants, as all the relevant medical evidence, save for the Dr Grant's personal records, were available and accessible to all parties.

Section 62B(1)(c): the nature and extent of the plaintiff's injury or loss

1. The abovementioned medical issues and the plaintiff's sale of his newsagency business are what constitute the injury and losses caused by the defendants' negligence, as alleged.

Section 62B(1)(d): any conduct of the defendant that induced the plaintiff to delay bringing the action

1. Both parties agreed that neither of the defendants caused the plaintiff to delay bringing these proceedings.

Section 62B(1)(e): the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received

1. Following the retention of legal representation in November 2014, the plaintiff submitted that the procurement and review of medical records and medico-legal expert opinion was conducted efficiently and with due diligence.

Section 62B(1)(e): The time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff

1. The plaintiff gave evidence that he was informed on 19 January 2004 of his bilateral deep vein thromboses which was, as he was told, the likely cause for his post-operative oedema and other symptoms. He was not advised, however, that the cause of this condition was, more likely than not, the alleged narrowing of his IVC and/or failure to adequately anti-coagulate him following the repair of his IVC on 16 January 2004. Consequently, the plaintiff was and remained under the false impression that his bilateral deep vein thromboses were a consequence of his retroperitoneal lymph node dissection procedure until he received the Morris Report, or alternatively, the Niesche Report.
2. Prior to his receipt of that/those reports the plaintiff was also unaware that the injury was caused by the (alleged) fault of the defendants.
3. Counsel for the plaintiff relied on Baker-Morrison v State of New South Wales [2009] NSWCA 35 ("Baker-Morrison") (per Basten JA (at [42])) as authority for discoverability requiring legal and medical information to allow a prospective plaintiff to come to a professionally informed decision as to whether the injury is sufficiently serious to justify the bringing of an action on the cause of action (s 50D(1)(c) of the Act). The plaintiff, therefore, submitted this was unknown to the plaintiff until he received the Morris Report, and to a lesser extent, the Niesche Report.

Ought to have known: s 50D(2)

1. The plaintiff, citing Baker-Morrison (per Basten JA (at [58])), submitted that, generally, the step of instructing a solicitor is sufficient to satisfy the element of taking all reasonable steps.
2. The plaintiff submitted that the Court in Kay v Sydney Airport Corp Ltd [2014] NSWSC 744 (Adamson J (at [236]-[244])) held a plaintiff is not fixed with constructive knowledge of a fact in circumstances where the solicitor may have known a particular fact. This point was made in reference to the time which elapsed between the respective receipt by Monaco Solicitors, by contrast to the plaintiff, of the Niesche Report and the Morris Report.
3. The plaintiff submitted that what he ought to know could only occur upon the receipt of expert evidence. Hence, prior to the receipt of the Morris Report (or, in the alternative, the Niesche Report) he did not know or ought not to have known the causal relationship between the injury and the fault of the defendant (PWS [103]-[107]).

Statutory purpose

1. The defendant submitted that, in the context of a discretionary power to extend the time in which to sue after the expiry of the limitation period, the rationales of the limitation period assume significance, citing Itek Graphix Pty Ltd v Elliott (2011) 54 NSWLR 207; [2001] NSWCA 442. In that case, Ipp AJA (at [78]) referred to the statements in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 made by McHugh J at 552, which identified four broad rationales for the enactment of limitation periods, generally, namely: 1. relevant evidence is likely to be lost with the passing of time; 2. it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; 3. it is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; and 4. the public interest requires that disputes be settled as quickly as possible.
2. Justice McHugh observed that these rationales were of crucial importance in construing legislation that enacts limitation periods. Acting Justice Ipp also (at [87]) said: [87] … [T]he general question that has to be asked is what is fair and just … or what does the justice of the case require …. In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period … including the four rationales to which McHugh J referred." [Emphasis added.]
3. The defendant cited the Second Reading Speech of the Limitation (Amendment) Bill 1990 (NSW) (New South Wales, Parliamentary Debates, Legislative Council, 4 June 1990, 4994 (E P Pickering)): By limiting the time within which a plaintiff may make a claim, the defendant's potential liability is made finite and can be predicted with certainty. This is an important element in obtaining insurance against damages for liability. It is desirable, if not essential, that insurers be made aware reasonably quickly of potential claims, and that they be in a position to determine the possible size of claims. This is necessary to allow insurers to determine their future liabilities with some degree of accuracy, and on occasion, satisfy their need to inform reinsurers. Current arrangements make those financial assessments extremely difficult. The public interest demands that the proceedings be commenced with as little delay as possible, for delay can only prejudice the fair trial of the issues involved. The litigation of claims at a time when witnesses or records may no longer be available or reliable has to be discouraged. This is especially significant in personal injury actions which rely so much for their resolution on the proof of factual matters. There comes a time when a potential defendant can be secure in his reasonable expectation that he ought not to be called upon to resist a claim when evidence has been lost, memories have faded and witnesses are unavailable. Limitation legislation thus aims at the prevention of avoidable delay. However, its operation may lead to particular instances of hardship where the plaintiff could not be said to have acted improperly or unreasonably in failing to commence action within the limitation period. This is particularly true in relation to latent injury or disease.
4. Further, the defendant cited the Review of the Law of Negligence (Final Report, September 2002) ("Ipp Report") at [6.35]-[6.36]. The resultant submission was that, as the plaintiff's case does not "concern a latent injury in any true sense", it is contrary to the "stated purpose" of the 12 year long-stop limitation period.
5. The defendant also referred to Pomare v Hogan (No 3) [2019] NSWSC 497 in relation to the interpretation of s 50D of the Act.

Matters to be considered in determining application for extension of 12 year long-stop limitation period: section 62B(1)(a)-(e)

Section 62B(1)(a): the length of and reasons for the delay

Section 62B(1)(e): the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received

1. The defendant submitted that the length of the delay was significant. Moreover, it was asserted that the plaintiff's "failure" to seek legal advice prior to November 2014 had not been adequately explained. The only (apparent) reason advanced for this failure was a deliberate decision not to pursue that course due to the plaintiff's desire not to jeopardise his wife's professional relationships. However, as she ceased employment in 2011, it remains unexplained why advice was not sought by the plaintiff until November 2014.

Section 62B(1)(b): the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available

1. The defendant submitted that some medical records are no longer in existence and by virtue of that fact the defendant is placed in a prejudiced position.

Section 62B(1)(f): the time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff

1. The defendant submitted that, whilst the plaintiff may have not subjectively known the facts to which s 50D of the Act refers, he ought to have known those facts and taken all reasonable steps. State of New South Wales v Gillett [2012] NSWCA 83 (per Beazley P, with Young and Whealy JJA agreeing) was relied upon to submit that an inquiry into the steps actually taken by the plaintiff must be made in order to determine what would have been reasonable steps to have taken in the particular circumstances of a given case.
2. The defendant submitted that no steps were taken by the plaintiff to ascertain particular facts necessary to give rise to liability until 25 November 2014, when he contacted Monaco Solicitors.
3. Citing Commonwealth of Australia v Smith [2005] NSWCA 478 and Commonwealth v Nelson [2001] NSWCA 443, the defendant submitted the evidence established that the plaintiff was aware of his symptoms from which he was suffering following surgery, for which he had sought medical treatment over many years prior to November 2014. Ultimately, his "ignorance" of the "medical label" for his symptoms does not establish lack of knowledge as to the fact that the injury" had occurred for the purpose of s 50D(1)(a) of the Act.
4. Similarly, the plaintiff ought to have become aware of the causal relationship (s 50D(1)(b) of the Act) between his post-operative oedema and deep venous thromboses, which was (allegedly) due to the damage and subsequent repair of his IVC and a failure to adequately coagulate. The plaintiff's ignorance does not overcome the requirement that he ought to have become so aware of that fact. The plaintiff sought the services of medical specialists over many years to whom such enquiries could have been directed and there is no reason which precluded him from enquiring as to the cause of his medical issues. Further, had the plaintiff done so but not received a satisfactory answer, there was also nothing proffered as an explanation as to why he could not seek further medical advice as to cause.
5. Ultimately the plaintiff ought to have known the facts contained in s 50D(1). If he had taken all reasonable steps, he would have investigated those facts by the end 2004, or within a reasonable period thereafter.
6. The defendant thus submitted that the plaintiff ought to have sought legal advice earlier than November 2014.

CONSIDERATION

1. The plaintiff alleges that his IVC thromboses and subsequent medical issues were caused, or materially contributed to, by the IVC repair on 16 January 2004 and the first defendant's and/or second defendant's post-operative failure to properly provide anticoagulation therapy. Pursuant to s 50C(b) the period of 12 years, therefore, began to run on 16 January 2004. It then follows that the 12 year long-stop period expired on 16 January 2016.
2. The plaintiff submitted that the cause of action was discoverable in November 2017 or, in the alternative, on 5 April 2017; those being the dates he received the Morris Report and Niesche Report, respectively.
3. The defendant contended that, by the end of 2004, the plaintiff knew both that he had suffered an injury and that the consequences of which were serious. While the defendant accepted the plaintiff did not have knowledge in 2004 to satisfy s 50D(1)(c) it was submitted that, had all reasonable steps been taken he would had acquired such knowledge a reasonable period thereafter. Hence, the defendant submitted that the cause of action was discoverable well before the plaintiff contacted his solicitors in November 2014. It follows that, if that was the case, the Court has no jurisdiction to extend the 12 year long-stop limitation period beyond the period of 3 years after the cause of action is discoverable: s 62A(2) of the Act.
4. I accept the submissions of the defendant as to the statutory purpose of the Act. However, notwithstanding the veracity of the points raised, the fact remains that in ascertaining the statutory purpose of the Act, the inclusion of s 62A by the legislature must be taken into account. That is, the legislature, through the inclusion of s 62A, empowers the Court, at its discretion, to extend the 12 year long-stop limitation period if, having regard to those provisions, doing so was just and reasonable.

Discoverability

1. The main issues in dispute relate to the point in time when the cause of action was discoverable by the plaintiff and whether it was, in fact, just and reasonable to extend the 12 year long-stop limitation period.
2. There was no dispute that plaintiff was aware that he suffered post-operative injuries in 2004: s 50D(1)(a) of the Act.
3. However, I accept that, until receipt of the Morris Report, the plaintiff was unaware the IVC repair likely led to its narrowing which, in turn, caused the development of caval thromboses and his subsequent health issues. I therefore accept that the plaintiff did not know that what caused his injuries were the alleged fault of the defendants until November 2017: s 50D(1)(b). Nor did he acquire the requisite professional advice to know his injuries were sufficiently serious to justify the bringing of an action on the cause of action until he received the Morris Report: s 50D(1)(c).
4. Whilst ultimately nothing turns on the plaintiff's wife having been employed as a nurse until 2011, I do accept this circumstance did influence his delay in obtaining legal advice. I also accept that the plaintiff was focussed on his health and returning to work, and later, on the newsagency business until it was sold in 2011.
5. The second defendant's clinical notes regarding the plaintiff have been destroyed. However, the first defendant's medical records, which concern the plaintiff's preoperative and postoperative retroperitoneal lymph node dissection procedure, are available.
6. Further, the plaintiff possesses and has served medical records and/or treatment reports from: the first defendant; Wyong, Hospital; Gosford Hospital; Dr Green; Warnervale GP Super Clinic; Dr Aroney; Professor Meyers; Dr Gani; Dr Meek; Dr Di Lernia; and Royal North Shore Hospital.
7. The plaintiff also possesses his radiology films, MRI scans, CT scans, Ultrasounds and X-rays from 2003 to 2015.
8. It follows that there is ample evidence relevant to this matter that would ensure a fair trial. I, therefore, find that the defendant is not at risk of facing prejudice.
9. Thus, the present application turns on whether the plaintiff ought to have known the requisite facts of discoverability, in particular s 50D(1)(b) and (c).
10. It is clear that the plaintiff has suffered immensely due to the 2004 post-operative complications. That fact must be considered by the Court in determining whether to extend the 12 year long-stop limitation period: s 62B(c).
11. The defendant's submission, that the plaintiff ought to have enquired as to the true cause of his condition and, if faced with unsatisfactory advice sought further medical advice, is flawed. It assumes that the plaintiff could identify incorrect advice being given by a medical professional. The argument presupposes that the plaintiff possessed the necessary medical knowledge to discern between satisfactory and unsatisfactory medical opinion. I reject it.
12. The plaintiff was not a man who failed to seek medical advice. On the contrary. He did, in fact, engage specialist medical treatment and advice following his surgery in 2004 and thereafter. However, despite doing so and having had the benefit of various medical services, the cause of his issues was never relayed to him.
13. It can be deduced that medical services were not sought, or delivered, with the cause of his condition as being the main priority. Rather, it was contended that the central, if not sole, concern was the management and improvement of the plaintiff's health. I accept that this was the case.
14. I reject that the plaintiff ought to have investigated the cause of his condition and/or sought legal advice in 2004, or a reasonable time thereafter, as the defendant submitted.
15. Rather, I find that the cause of action was not discoverable between 2004 and 2011. The plaintiff did not develop wounds on his lower legs until 2011. During that period he was focussed on improving his health in the hope of regaining capacity to work.
16. In 2012, he was diagnosed with diabetes and in 2014 he developed open wounds in his abdomen.
17. In November 2014, the plaintiff retained legal representation. Engaging Monaco Solicitors was the initial step which led to investigating a potential cause of action. This involved the procurement of extensive medical records and, later, medico-legal reports. Legal advice received on and after 25 November 2014 provided the plaintiff a clearer appreciation for his legal rights and remedies. However, it did not and could not inform the plaintiff as to what was the cause of his injuries. That fact remained elusive and it follows that until that fact was known the cause of action was not discoverable.
18. Knowledge of causation could only be attained through expert medical opinion. This occurred once the plaintiff received the Morris Report. It was the Morris Report that first informed the plaintiff, in certain terms, that his caval thrombosis was, more likely than not, caused by the repair and consequent narrowing of his IVC. Hence, I find that the plaintiff came to know requisite facts of ss 50D(1)(b) and 50D(1)(c), and the cause of action became discoverable, in November 2017 when he received the Morris Report from Monaco Solicitors. I reject the defendant's submission that the plaintiff ought to have known those facts at an earlier time.
19. Counsel for the defendant submitted that, pursuant to s 62A(2) of the Act, the Court's jurisdiction is limited to extending the 12 year long-stop limitation period beyond three years of the date on which the cause of action was discoverable. The Court does not have a power to make an order nunc pro tunc extending the limitation period. I accept this submission.
20. Deriving from that submission, counsel for the defendant submitted the Court has no jurisdiction to made an order under s 62A(2) unless satisfied the putative action was not discoverable before 17 May 2016. It is not necessary to finally resolve that submission because I have found that the cause of action was discoverable in November 2017 on that basis. The Court does have jurisdiction to extend the limitation period until at least November 2020 and will make an order to that effect.
21. Counsel for the defendant submitted that the plaintiff's filing of a summons for the present application does not constitute the commencement of proceedings. There would seem to be merit to that submission. The Uniform Civil Procedure Rules 2005 (NSW), r 6.6(d)(ii), requires that proceedings on a claim for damages in respect of personal injury must be commenced by statement of claim. It is, however, again unnecessary to presently resolve that issue because an extension of the limitation period would permit the plaintiff to file a statement of claim before November 2020.
22. In coming to decide to extend the 12 year long-stop limitation period I have considered the circumstances of the present case to which the Court must have regard: s 62B (a)-(f) of the Act. I have found that the nature and extent of the plaintiff's injury and its resultant effects to his life to be most significant. There has been considerable delay since the 16 January 2004 surgery. This fact is not insignificant. However, the full extent as to the seriousness of the plaintiff's injury was not appreciable until his condition deteriorated further following his development of open abdominal wounds in 2014. The plaintiff took active steps to obtain legal and medical advice after this event in November 2014. However, despite this, as outlined above, the cause of action remained undiscoverable until November 2017. Further, the available evidence will not place the defendant in a prejudiced position at trial as a result of the plaintiff's delay bringing proceedings. I thus conclude that the 12 year long-stop limitation period should be extended to November 2020, which accords with the limit that s 62A(2) of the Act permits and produces a just and reasonable outcome to the affected parties.
23. I reserve costs of the proceedings.
24. The plaintiff shall bring in short minutes of order reflecting this judgment within 7 days of its publication. 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. Decision last updated: 10 August 2020