Extending the limitation period in medical negligence cases - a subjective approach

In Hogan v Thornley,¹ the Supreme Court of New South Wales (NSW) (the Court) considered the extension of a limitation period in the context of what a plaintiff knew or ought to have known about a claim against a specialist when the plaintiff suffered from memory loss. The Court found the plaintiff’s memory impairment justified an extension of time under s 62A of the Limitation Act 1969 (NSW) (the Act).

This article was written by Kate Hickey and Ryan Cain for the Australian Health Law Bulletin.

The decision is instructive of a court’s approach to interpreting discoverability in extension of limitation period applications. In this case, the Court found the relevant test was subjective rather than what a reasonable person in the plaintiff’s position knew or ought to have known.

Background

Between 1997 and 2016, the plaintiff (Mr Hogan) reported experiencing symptoms, including memory loss and fatigue. In 2003, the plaintiff was referred by his general practitioner (Dr Jaffe) to the defendant (Dr Thornley, endocrinologist) to investigate the symptoms, noting that the plaintiff had 'abnormal thyroid function' and a history of 'long standing lethargy, dyspnoea, hair loss, cold intolerance and a longstanding problem with memory'.² The defendant reported back noting that the plaintiff’s thyroid function was essentially normal. The plaintiff continued to consult with Dr Jaffe in the years following his consultations with the defendant.

In 2016 and 2017, as a result of declining health, the plaintiff consulted with another general practitioner, neurosurgeon and endocrinologist, and was diagnosed with a pituitary macroadenoma (a benign tumour). This resulted in the plaintiff undergoing further surgery. The plaintiff subsequently initiated legal proceedings against Dr Jaffe alleging negligence. The plaintiff alleged he suffered injuries and disabilities including injury to the brain, memory issues, visual issues, balance issues and that the risk of harm resulting from a delayed diagnosis of secondary hypothyroidism and/or pituitary adenoma was reasonably foreseeable to a person in the defendant’s position, such that the defendant was in breach of his duty of care to take precautions against that risk.³

In 2020, the plaintiff joined the defendant to the claim, outside the 12-year long-stop period.⁴ The plaintiff asserted that he had no recollection of his 2003 consultation with the defendant, attributing the lapse to his memory issues. Further, the plaintiff only became aware of his consultation with Dr Thornley following subsequent production of documents by Dr Jaffe.⁵

The defendant opposed the plaintiff’s application for an extension, on the basis the claim was time-barred and the delay caused prejudice, given the relevant consultation was two decades prior.⁶ In his filed defence, the defendant pleaded that the claim was barred by the long-stop limitation period, pursuant to s 50C(1)(b) of the Act.⁷

The plaintiff’s submissions accepted that the application to extend the long-stop limitation period could only succeed if he could establish the date of the filing of proceedings was no more than 3 years after the date on which the cause of action against the defendant was discoverable.⁸ The plaintiff argued that the defendant did not plead any defence under s 50C(1) of the Act⁹ and therefore it could be assumed that the cause of action could not have been discovered earlier than the three years prior to commencement of proceedings.¹⁰

Further, the plaintiff submitted that following his diagnosis and surgery in 2017, he was unable to know and ought not to have known know the facts required under s 50D of the Limitation Act, being that his injury had been caused by the fault of the defendant; this, it was submitted, was sufficient enough to justify proceedings.¹¹ The plaintiff also submitted that he took reasonable steps as an individual based on his state of knowledge providing instructions to his solicitors.¹² On the issue of prejudice, the plaintiff submitted that the defendant would not be prejudiced by any delay in the proceedings, as he had 'success to the relevant records and correspondence'.¹³

Aside from prejudice, the defendant argued that the cause of action was discoverable in September 2017 when the plaintiff was advised by his treating practitioner that he had been misdiagnosed in 2003. The defendant conceded that the plaintiff took reasonable steps instructing solicitors but submitted that he ought to have made it incumbent on his solicitors to make further investigations on the basis of his own poor memory.¹⁴ The defendant made further submissions that the cause of action had been discoverable had the plaintiff’s solicitors requested a Medicare Claims Record, which would have revealed the defendant as a treating practitioner.¹⁵

On the issue of prejudice, the defendant submitted that there would be significant 'actual and presumptive prejudice' to him on the basis that, although the relevant correspondence was available, the nature of the plaintiff’s claim extended beyond that and that the relevant consultations between all parties occurred 22 years ago.¹⁶

The Court’s decision

The Court was faced with two issues in determining the application for an extension. When was the cause of action discoverable? Would an extension of the limitation period result in unfair prejudice to the defendant?¹⁷

In NSW there is a general rule that actions for damages for personal injury must be commenced within 3 years from the date the cause of action is discoverable, or 12 years from the date of the act or omission.¹⁸ Section 62A of the Act¹⁹ gives the Court a discretion to extend the limitation period where it is just and reasonable to do so.²⁰ His Honour, Ierace J considered whether to exercise the discretion under s 62A to extend the limitation period, emphasising that the plaintiff bears the onus to demonstrate that doing so would not significantly prejudice the defendant. The defendant also has an evidentiary onus to raise considerations against the exercise of the Court’s discretion.²¹

Under s 62B of the Act, the Court has a wide discretion when considering whether to extend the 12-year long-stop limitation period. In this case, Ierace J affirmed that, pursuant to s 62B, the Court ought to have regard to all circumstances including the length of and reasons for delay, the nature and extent of the plaintiff’s injury or loss, and the time the cause of action was discoverable by the plaintiff.²²

Ultimately, the Court exercised its discretion to extend the long-stop limitation period, allowing the plaintiff to proceed with his claim against the defendant.

Discoverability

Section 62A of the Act relevantly provides:

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.
3. If a court orders the extension of the 12 year long-stop limitation period for a cause of action under this section, that limitation period is accordingly extended for the purposes of—
   1. an action brought by the applicant in that court on the cause of action that the applicant claims to have, and
   2. section 26 (1) (b) in relation to any associated action for contribution under section 5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946 brought by the person against whom that cause of action lies.

Section 62B(1) of the Act relevantly provides:

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—
   1. the length of and reasons for the delay,
   2. 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,
   3. the nature and extent of the plaintiff's injury or loss,
   4. any conduct of the defendant that induced the plaintiff to delay bringing the action,
   5. 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,
   6. the time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.²⁴

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 he had attended a consultation with Dr Thornley?²⁵

It was accepted that the plaintiff’s memory impairment pre-dated the diagnosis of the tumour. The plaintiff’s evidence was he did not have a recollection of consulting or corresponding with the defendant.²⁶ The plaintiff’s evidence that his memory was seriously impaired due to his condition was not challenged by the defendant nor was it suggested the plaintiff was feigning a loss of memory.²⁷

In determining whether to extend the long-stop period under s 62A of the Act (and the matters to be considered under s 62B), the Court considered a determinative question was when the cause of action as discoverable. The Court described the appropriate test under s 50D(2) of the Act 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.²⁸

Further, the Court highlighted that the test is what the plaintiff, and not his legal advisors, knew or ought to have known in the context of their investigations of the plaintiff’s claim.²⁹ This was in the context of Ierace J considering whether the plaintiff’s solicitors ought to have investigated a reference to the defendant in clinical records produced in 2017.³⁰ His Honour did consider that available records referencing the defendant were worthy of further inquiry by the plaintiff’s solicitors,³¹ and that it was unwise to rely exclusively on the plaintiff’s instructions as a reliable source, given the plaintiff’s impaired memory.³²

The Court held that the plaintiff’s memory impairment was relevant in assessing what he knew or ought to have known in this context.³³ In this situation, the plaintiff’s evidence included having no recollection of consulting with the defendant, and he was reliant on being told he did so in February 2020.³⁴ The Court did not attribute any delay in proceedings as being the fault of the plaintiff.³⁵ As such, the date of discoverability of a cause of action against the defendant was found to be February 2020, finding that the plaintiff did not know of a cause of action against Dr Thornley before that date and that he ought not have known of that fact before then.³⁶

Prejudice

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.³⁷ The Court also noted that Dr Jaffe’s solicitors had not initially produced all relevant records, including correspondence between the general practitioner and the defendant. Combined with the plaintiff’s lack of any independent recollection of consulting with the defendant, the Court considered the delay in producing all relevant records contributed to the delay in identifying the defendant’s involvement.³⁸

It followed that both parties were confined to the content of contemporaneous medical records and correspondence as the basis of their primary evidence. Therefore, the Court found that the defendant did not suffer any prejudice.³⁹

Analysis

The decision in Hogan v Thornley highlights a 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 have known 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.

The decision may represent a shift towards further personalisation and subjective analyses of limitation period applications. Cognitive limitations, such as memory impairment, may impede a potential litigant’s awareness of the material facts necessary to commence proceedings. When plaintiff solicitors are dealing with clients suffering from cognitive or memory impairments, extra care should be given to the instructions provided and into their investigations of potential defendants.

As confirmed by Ierace J, plaintiffs still bear the onus to satisfy a court that the long-stop limitation period should be extended and that doing so does not cause significant prejudice to a defendant/s. There is an additional evidentiary onus for defendants to raise any consideration against the exercise of this discretion, for example whether the plaintiff took reasonable steps to investigate a cause of action or the prejudice caused by extending the limitation period.

Whilst the decision in Hogan v Thornley demonstrates a subjective analysis of the plaintiff’s situation, delays inherently cause a risk of prejudice to defendants. A key policy principle for limitation periods in personal injury/medical negligence proceedings is to prevent an indefinite exposure to litigation.⁴⁰ The decision in Hogan v Thornley may have an effect of increasing long-term exposure to litigation for medical practitioners and their indemnity insurers. In a situation where the passage of time has eroded memories of parties to litigation, it is another reminder for medical practitioners to keep detailed and accurate contemporaneous records.

To read the full article and gain further insights into this case, click here.

¹ Hogan v Thornley [2025] NSWSC 640; BC202508927.
² Above, at [3]–[4].
³ Above n 1, at [11] and [12].
⁴ Per s 50C(1)(b) of Limitation Act 1969 (NSW) (Act), the 12-year long-stop limitation period 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.
⁵ Above n 1, at [31]–[34].
⁶ Above n 1, at [54].
⁷ Above n 1, at [13].
⁸ Above n 1, at [44].
⁹ Per s 50C(1)(a) of the Act, above n 4, the 3-year post discoverability limitation period is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff.
¹⁰ Above n 1, at [45].
¹¹ Above n 1, at [45]–[46].
¹² Above n 1, at [46]–[49].
¹³ Above n 1, at [51].
¹⁴ Above n 1, at [52].
¹⁵ Above n 1, at [53].
¹⁶ Above n 1, at [54].
¹⁷ Above n 1, at [56].
¹⁸ Act, above n 4, s 50C.
¹⁹ Act, above n 4, s 62A.
²⁰ Similar provisions across Australia including s 23A of Limitation of Acts (Vic) and s 31 Limitation of Actions Act 1974 (Qld).
²¹ Above n 1, at [55].
²² Above n 1, at [15] and [58]–[62].
²³ Act, above n 4, s 62A.
²⁴ Act, above n 4, s 62B(1).
²⁵ Above n 1, at [56].
²⁶ Above n 1, at [58].
²⁷ Above n 1, at [39].
²⁸ Above n 1, at [57].
²⁹ Above n 1, at [68].
³⁰ Above n 1, at [63]–[68].
³¹ Above n 1, at [65].
³² Above n 1, at [66].
³³ Above n 1, at [58].
³⁴ Above n 1, at [41].
³⁵ Above n 1, at [68].
³⁶ Above n 1, at [70].
³⁷ Above.
³⁸ Above n 1, at [72].
³⁹ Above n 1, at [70].
⁴⁰ NSW Law Reform Commission Report 50 (1986) — Community Law Reform Program: Ninth Report — Limitation of Actions for Personal Injury Claims (1986) [1.10]–[1.13].