Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Cox v Keys [2012] NSWCA 268
• Hearing dates: 7 August 2012
• Decision date: 28 August 2012
• Before: McColl JA at [1]; Macfarlan JA at [2]

Decision

(1) Grant leave to appeal in relation to the claim against Dr Lees.

(2) Otherwise dismiss the application for leave to appeal.

(3) Direct that within 14 days of the date of this judgment, the applicant file and serve a Notice of Appeal in the form provided to the Court, limited to the grounds and proposed orders relating to the applicant's claim against Dr Lees.

(4) Order that the order of Elkaim DCJ made on 1 September 2011 dismissing the applicant's Notice of Motion be set aside insofar as it related to the applicant's claim against Dr Lees.

(5) Allow the appeal in relation to the applicant's claim against Dr Lees.

(6) Order that the time for the applicant to file and serve a Statement of Claim against Dr Lees in the form already filed be extended to the date one month from the date of this judgment.

(7) Order Dr Lees to pay the applicant's costs of his application for leave to appeal, and appeal, in relation to Dr Lees.

(8) Order the applicant to pay the costs of Drs Keys and Yuen of the application for leave to appeal (including the concurrent hearing of the appeal that would have lain if leave had been granted).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: LIMITATIONS - Limitation Act 1969 ss 58, 60G - applicant seeks extensions of time to bring proceedings against general practitioners and radiologist - whether primary judge erred in refusing to grant extensions sought - whether "just and reasonable" to grant extensions - whether primary judge entitled to take into account that damages likely to be minimal against one practitioner - whether general practitioners would be prejudiced in defending proceedings by absence of clinical notes and inability to recall consultations - whether radiologist would be prejudiced by absence of x-ray request form
• Legislation Cited: Limitation Act 1969; Supreme Court Act 1970
• Cases Cited: Allen v Drayton Coal Pty Ltd [1995] NSWCA 14; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541; Cavanagh v New South Wales [2008] NSWCA 350; Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56; House v R [1936] HCA 40; 55 CLR 499; Sorrenti v Crown Corning Ltd & ACI Operations Pty Ltd (1986) 7 NSWLR 77; Warren v Coombes [1979] HCA 9; 142 CLR 531
• Category: Principal judgment
• Parties: Barry Charles Cox (Applicant/Appellant); John Thomas Keys (First Respondent); Laurence Alfred Lees (Second Respondent); Kwing Wing Yuen (Third Respondent)
• Representation: Counsel: D Campbell SC/S J Longhurst (Applicant/Appellant); W S Reynolds (First Respondent); J Downing (Second and Third Respondents); Solicitors: RMB Lawyers (Applicant/Appellant); Avant Law Pty Ltd (First Respondent); HWL Ebsworth Lawyers (Second and Third Respondents)
• File Number(s): CA 2011/166843

Decision under appeal

• Citation: Cox v Dr Keys & Ors
• Date of Decision: 2011-09-01 00:00:00
• Before: Elkaim SC DCJ
• File Number(s): DC 2011/166843

Judgment

1 McCOLL JA: I agree with Macfarlan JA's reasons and the orders his Honour proposes.

2 MACFARLAN JA:

SUMMARY OF CASE AND CONCLUSIONS

3 In 1976 Mr Barry Cox, the applicant in this Court, had a left hip replacement following the fracture of his left femur in the previous year. From the time that he jarred his left leg in March 1982, he suffered considerable pain and disability in his left hip and to some extent, apparently consequentially, in his left knee. In 2007 he had reconstructive surgery undertaken on his left hip, which was partially successful. He contends that he received negligent medical advice in the period 1982 to 2007, which delayed the correct diagnosis and treatment of his condition.

4 On 19 May 2011 Mr Cox commenced proceedings for damages for negligence in the District Court against, inter alia, Dr John Keys, Dr Laurence Lees and Dr Kwing Yuen. Each are general practitioners although Dr Lees practised for many years as a radiologist and is sued in respect of a radiology report that he provided in that period.

5 By Notice of Motion filed on the same date, Mr Cox sought extensions of the time in which he could bring proceedings against the defendants under the Limitation Act 1969. By judgment of 1 September 2011, Elkaim DCJ extended the limitation period in respect of a claimed cause of action against Dr Keys concerning a consultation in 1999 and in relation to a radiologist who is not a party to this appeal. Mr Cox seeks leave to appeal against his Honour's decision to refuse an extension in relation to claims against Dr Keys concerning a 1986 consultation, against Dr Lees in relation to a radiology report supplied to Dr Keys in 1986 and against Dr Yuen concerning a 1998 consultation. The application has been heard concurrently with the appeal that would lie if the application were granted. Prior to the hearing, the Chief Justice gave a direction under s 46A(2) of the Supreme Court Act 1970 that the Court be constituted on the hearing of that appeal by two Judges of Appeal, the appeal being one within the class referred to in s 46A(1)(d).

6 For reasons given below I have concluded that his Honour did not err in refusing an extension in relation to the claim against Dr Keys concerning the 1986 consultation, and in relation to Dr Yuen. As an appeal on those claims would be bound to fail, I would refuse leave to appeal.

7 I have concluded however that his Honour erred in declining to grant Mr Cox an extension of time to proceed against Dr Lees. In respect of that claim, I would grant leave to appeal and allow the appeal.

RELEVANT LEGISLATIVE PROVISIONS AND LEGAL PRINCIPLES

8 The applications concerning Drs Keys, Lees and Yuen proceeded upon the assumption that any loss suffered by Mr Cox as a result of their alleged negligence was suffered at the time the negligence occurred, that is, in 1986 in the case of Drs Keys and Lees and in 1998 in the case of Dr Yuen.

9 In the case of Drs Keys and Lees the claimed causes of action therefore accrued, if at all, prior to 1 September 1990, resulting in a six-year limitation period for commencement of action against them from 1986 (see ss 14(1) and 57A). The Court's power to extend the limitation period under s 58 is applicable to those causes of action (see s 57A). That power, which is exercisable even if the relevant limitation period has expired, was conferred in the following terms:

"(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action, and

(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,

the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subsection (1) of section 26, the limitation period is extended accordingly."

10 The parties accepted that the pre-condition stated in s 58(2)(a) was satisfied in respect of the claims against Drs Keys and Lees. The only issue on appeal concerning the satisfaction of the pre-condition in s 58(2)(b) arose on a draft Notice of Contention relied upon by Dr Keys.

11 The claimed cause of action against Dr Yuen only accrued, if at all, after 1 September 1990, rendering inapplicable the power conferred by s 58 (see s 57A). Instead the powers conferred by subdivisions (2) and (3) of Part 3 of the Limitation Act (ss 60A to 60J) were applicable (see ss 60B and 60G(1)). Exercise of the power contained in s 60C would not have availed Mr Cox in the present case as it only permits an extension for a period not exceeding five years (s 60C(2)). As a result it was necessary for Mr Cox to rely upon s 60G which is in the following terms:

"(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines."

12 Section 60I specifies a number of pre-conditions to the making of an order under s 60G. Dr Yuen did not contend that any of those pre-conditions had not been satisfied.

13 Exercise of the power under s 60G(2) is expressly conditioned upon the court deciding that it is "just and reasonable" to grant the extension sought. This Court held in Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 that "appellate review of a decision whether extension of a limitation period is just and reasonable, is conducted in the same way as Warren v Coombes requires an appellate court to review a decision whether there has been a breach of a duty of care" (at [110]). Accordingly such a decision is not discretionary and the following principles stated in Warren v Coombes [1979] HCA 9; 142 CLR 531 apply:

" ... in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it" (at 551).

14 Although the phrase "may ... order" in s 60G(2) suggests that even when it believes it is just and reasonable to order an extension, the court retains a residual discretion as to its making, there can be little doubt that an order would be made virtually as of course once it had been determined that it was just and reasonable to do.

15 In the case of Drs Keys and Lees, the power conferred by s 60G(2) is applicable as well as that under s 58, as a result of the transitional provisions contained in Schedule 5 Clause 4(4) to the Limitation Act. Nevertheless the primary judge referred to the applicable section as s 58 only (Judgment [8]) and on appeal Mr Cox did not rely on s 60G as an alternative to s 58.

16 Unlike the power conferred by s 60G, that conferred by s 58 is not conditioned upon a finding of the court that it is just and reasonable to extend the limitation period. Rather, subject to other conditions precedent which are not presently relevant, it is an unqualified discretionary power. As a result, the principles stated in House v R [1936] HCA 40; 55 CLR 499 are applicable to appellate review of its exercise. In large measure these principles confine appellate review to cases where extraneous factors have been taken into account, material matters have been left out of account, there has been an error of law or the judge has misunderstood the facts.

17 As is apparent from a comparison of the House v R and Warren v Coombes principles identified above (see [13], [16]), the hurdle for Mr Cox to surmount in challenging the primary judge's decisions in relation to Drs Keys and Lees is higher than that concerning Dr Yuen.

18 Guidance as to the proper exercise of the discretion conferred by a legislative provision in relevantly identical terms to s 58 was provided in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541, in which Toohey and Gummow JJ said:

"The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent" (at 550).

19 McHugh J (with the concurrence of Dawson J) said:

"Once the learned judge had made a finding of actual prejudice, his decision to dismiss the application was inevitable. Besides the proved prejudice, the long delay gave rise to a general presumption of prejudice" (at 556).

THE CLAIM AGAINST DR KEYS

20 Mr Cox first consulted Dr Keys in 1982. He deposed that, having received what Dr Keys described as a "clear" x-ray report, Dr Keys advised him to treat his hip with heat.

21 Mr Cox further deposed as follows:

"13. From about 1982 to 1986 I estimate I would have jarred my hip about 3 times per year. Each time I jarred my hip, because of what Dr Keys told me in 1982, I treated my hip with heat. I remember it took about 3 weeks to heal each time.

14. The jarring of my hip and limping reached the point where my wife, Madelaine, told me to go back and see Dr Keys.

15. I saw my GP, Dr Keys, on or about 6 November 1986 about the pain in my left hip and knee. He referred me to Oak Flats X-Ray and Ultrasound to have an x-ray performed on my left hip and left knee. The x-ray was reported by Dr Laurence Lees. Annexed hereto and marked with the letter "A" is a copy of that report. At this point the pain was radiating from my hip to my knee cap.

16. The report, dated 6 November 1986 stated:

'The prosthesis and it's [sic] socket are in normal relationship and appear firm and unchanged as compared to the earlier films with intact trochantal wire. No specific cause for the symptoms is seen.'

17. After the x-ray I saw Dr Keys who said words to the effect of 'it's just soft tissue damage.' He recommended that I again treat it with heat" (Affidavit of Mr Cox dated 18 May 2011).

22 In cross-examination Mr Cox gave the following evidence:

"Q. According to it would appear from your affidavit that at the time you saw Dr Keys in November 1986, the healing process was still in that three week period?

A. Yes. What, what would happen, I don't know that it was a three week period, it would probably, like I'd hurt myself, I'd probably go about like two or three weeks without sleep, like it hurt that much that when I went to bed I'd spend the whole night, I'd look at the clock and it'd be 1 o'clock and I'd look again and it'd be 2 o'clock and I'd be in agony and sometimes I'd get up and try and straighten up and then go back to bed. And what happened slowly from sleep derivation I started shaking and I used to take lots of vitamin B to try calm my nerves and I used to get really bad and I'd cry, I, I couldn't control my emotions. It used to just wear me down. And when I got to that point I'd go see the doctor and my wife would say, 'You need to do something' and she'd make an appointment, I'd go see the doctor and, and see if I could get something done about it.

...

Q. You were treating yourself with heat?

A. Yes.

Q. But in 1986 you went to see Dr Keys?

A. Yes.

Q. What was it that made you go on that occasion, was it a particularly severe episode or did something else happen?

A. Yep, it would have been because of my nerves. Because I - I was just shattered. Like I went to get medication to help me sleep and to find out about my hip ...

...

Q. Was the pain in your hip, when you saw Dr Keys in November of 86 any more severe than it had been on any of the other episodes that you'd had in the period between 82 and 86?

A. No, it would have been the same" (Transcript 31/08/11, pp 12 - 14).

Dr Keys' evidence

23 In his affidavit, Dr Keys stated that he recalled Mr Cox consulting him on a number of occasions, that Mr Cox had had a hip replacement "many years ago" and always had a limp, and that it was "normal for him to complain of pain and irritability in relation to the hip" [7].

24 Dr Keys said that he had no independent recollection of the particular consultations and did not recall Mr Cox complaining of "severe pain" in relation to his hip.

25 Dr Keys found notes of many consultations that he had with Mr Cox but none relating to consultations in 1982 or 1986.

Professor Bruce's expert report

26 Mr Cox tendered an expert report of Professor Warwick Bruce, an orthopaedic surgeon.

27 Professor Bruce expressed the view that the x-rays obtained by Dr Keys in 1986 were inadequate but nevertheless showed "the pathology significantly" (despite Dr Lees' radiology report not identifying any problem). The following presently relevant comments appear in the remainder of the report:

"In your note [referring to a letter from Mr Cox's lawyer] you said that the patient was complaining of severe and disabling pain from 1986. From a clinical point of view I would expect the general practitioner to send the patient for orthopaedic review. From an x-ray point of view I would expect most general practitioners could not interpret this.

...

In 1986 if the patient was complaining of significant pain, I would expect the general practitioner to refer the patient. A lot of radiologists should have picked up the abnormalities at this stage. If the patient had been referred for orthopaedic review to me and was complaining of significant pain, I would have done a revision of both components and [it] would have been a straight forward revision with an excellent chance of 15 years longevity.

...

Most general practitioners could not expertly read x-rays of prosthetic joints. It is really the patient's symptomatology that should warrant referral to a specialist orthopaedic surgeon. If the reports had been reported as abnormal I am sure the general practitioner would have sent the patient off for expert review.

...

Revision in 1986 would have resulted in a significantly better outcome than revision in 2008."

The judgment at first instance

28 The primary judge rejected Mr Cox's submission that the evidence indicated that Dr Keys should have sent him to a specialist, saying:

"... The most significant factor, I think, is that the report from Dr Lees does not suggest any particular problem. Dr Keys had no reason to doubt the correctness of the radiology report. If he is to be criticised for not referring the plaintiff to a specialist the particular history given to him by his patient must be relevant. It is not surprising that he has no recollection of the consultation. Absent his notes I agree with his observation ... that he would be unable to meet the allegations against him.

Although the existence of actual prejudice is not necessarily conclusive, there also needs to be considered the very long time since 1986 during which any memory the doctor may have had of the relevant events would have greatly faded or even been extinguished. I am thus of the view that it would not be just and reasonable to extend time to enable the plaintiff to pursue his action in respect of the alleged negligence of Dr Keys in 1986" (Judgment [19] - [20]).

Resolution of the application and appeal

29 On appeal Mr Cox submitted that the primary judge's conclusion that Dr Keys would be prejudiced in defending the proceedings by the absence of any note of his 1986 consultation with Mr Cox "was to misconceive the true nature of what was being alleged", which was:

"... that faced with ongoing complaints of pain, from a patient well know[n] to him, unexplained by examination or x-ray he inexplicably neglected to refer his patient off for further specialist review (he having to the knowledge of the doctor previously having been seen, assessed and operated upon by specialists)" (Summary of Claimant's Argument dated 2 December 2011).

30 I reject this submission. The point made by the primary judge was that to fairly criticise Dr Keys for not referring Mr Cox to a specialist when Dr Lees had reported to Dr Keys that Mr Cox's x-rays were "clear", one would need to know what "history" Mr Cox had given Dr Keys. His Honour was no doubt referring in particular to the symptoms, both past and present, that Mr Cox had reported to Dr Keys. His Honour's point accords with commonsense and is consistent with Professor Bruce's report. Professor Bruce states that "Most general practitioners could not expertly read x-rays of prosthetic joints. It is really the patient's symptomatology that should warrant referral to a specialist orthopaedic surgeon". Furthermore, in his discussion of the 1986 consultation, Professor Bruce refers to Mr Cox "complaining of severe and disabling pain" and at another point to him complaining of "significant pain". I appreciate that elsewhere in his report Professor Bruce refers to complaints of "pain" simpliciter, but, as I read the report, these references relate to consultations held at other times.

31 I do not accept Mr Cox's submission that Professor Bruce's reference to the complaint of "severe and disabling pain" was simply a recitation by Professor Bruce of an element of his instructions, without any intention to attach significance to it. The context of the reference does not in my opinion support that view, which is in any event contradicted by Professor's Bruce's statement that "in 1986 if the patient was complaining of significant pain, I would expect the general practitioner to refer the patient" (emphasis added).

32 Although Mr Cox did not say in his affidavit that he had informed Dr Keys at his 1986 consultation that he had severe pain in his hip, one may infer from his evidence in cross-examination (see [22] above) that at a hearing of proceedings against Dr Keys he would be likely to give evidence to that effect. Accordingly, I would not uphold Dr Keys' draft Notice of Contention (see [10] above). That does not however entitle Mr Cox to succeed on the present application. Bearing in mind Dr Keys' lack of notes and understandable lack of recollection after almost 26 years, he would in my view be prejudiced by an inability to respond adequately to such evidence. On Mr Cox's evidence, Dr Keys advised him that he had a soft tissue injury. Due to the passage of time and the absence of notes, Dr Keys would be unable to explain why he gave such advice, if he did, and failed to refer Mr Cox to a specialist.

33 In these circumstances I do not consider that Mr Cox has demonstrated any error of the primary judge which vitiated the exercise of his discretion. Mr Cox's challenge to his Honour's decision insofar as it relates to the consultation with Dr Keys in 1986 accordingly fails.

THE CLAIM AGAINST DR LEES

Dr Lees' radiology report

34 Dr Lees' "clear" radiology report of 6 November 1986, supplied to Dr Keys prior to his consultation with Mr Cox in 1986, was in the following terms:

"HIP - LEFT.

An early type Charnley's total hip replacement has been effected at some time in the past and comparison with films taken in 1982 is made. The prosthesis and it's [sic] socket are in normal relationship and appear firm and unchanged as compared to the earlier films with intact trochantal wire. No specific cause for the symptoms is seen.

KNEE - LEFT.

The knee joint is well preserved with normal cartilages and smooth margins".

Professor Bruce's expert report

35 Professor Bruce made the following comments about the x-rays referred to in Dr Lees' report:

"As far as the radiologist is concerned, an expert orthopaedic radiologist could easily pick this up [referring to the causes of the pain of which the patient complained] with migration, osteolysis, cement fracture and wear. An average radiologist should have picked this up as there has been progression from the x-rays in 1982. I note the report is normal. The x-ray is certainly not normal" (p 2).

36 As noted earlier, Professor Bruce also said:

"In 1986 if the patient was complaining of significant pain, I would expect the general practitioner to refer the patient. A lot of radiologists should have picked up the abnormalities at this stage" (p 3).

Dr Lees' evidence

37 In his affidavit, Dr Lees indicated, unsurprisingly, that he had no recollection of reviewing and reporting on the x-rays in 1986 (at [4]). He then said:

"8. At the time of reviewing the 1986 x-ray films it was my usual practice to first review the x-ray request form. The request form assists me to identify the referring practitioner's concern and the focus I am to adopt when reviewing the film/s. This is to ensure I assess whether the x-ray films provide an answer for the query, question or concern raised by the referring practitioner.

9. When reviewing Mr Cox's x-ray films, in accordance with my invariable practice I focused on the areas of the films which were relevant to the query, question or concern raised by Dr Keys.

10. I do not have the referral form completed by Dr Keys. I have not seen or reviewed the referral since the preparation of the x-ray report in 1986".

38 In his oral evidence-in-chief, Dr Lees indicated that he is a general medical practitioner and has been qualified since 1952. For 30 years he practised as a radiologist. He admitted to being "a bit hard of hearing", which was worsened by a head cold he had whilst giving evidence.

39 Dr Lees gave the following evidence in cross-examination:

"Q. Back in 1982 and 1986 all you needed to look at to tell whether there had been a difference in the artificial hip between those 4 years were the films themselves, that's all you needed wasn't it?

A. A lot depends upon what is on the request form and looking at the report I would say the request form only required that is there any change between them. Well we haven't got the request form available.

...

Q. ... as a radiologist if the films are still in existence all you have to do to confirm your opinion is to look at them, even now?

A. Yes.

...

Q. So that without anything else you're able to give an opinion in this case, that's right isn't it?

A. Opinion on?

Q. On whether there has been any change between the 1982 and the 1986 films?

A. As far as those two films are concerned, yes" (Transcript 31/08/11, pp 81 - 82).

40 Dr Lees gave the following evidence in re-examination:

"Q. Mr Longhurst [counsel for the applicant] asked you some questions and you responded by indicating that it was important to see the referral form?

A. Yes.

Q. Other than being asked to contrast two different sets of X-rays what are some of the other things that you can be asked to do on a referral form?

A. For a plain film examination of that description probably very little else" (Transcript 31/08/11, p 83).

The judgment at first instance

41 For the following reasons, the primary judge declined to grant Mr Cox an extension of time to bring proceedings against Dr Lees:

"[30] ... Although there was no specific evidence of [Dr Lees'] age I think I can infer that he must be not less than 80 years of age. It was obvious to me that he was frail and hard of hearing. I think these are significant facts, although they need to be considered in the light of Dr Lees still practicing as a general practitioner.

[31] Dr Lees' evidence was to some degree confusing. Dr Lees said there would be no difficulty in comparing the 1982 x-rays to those taken in 1986. He also, however, said that any interpretation required information that would be contained in the referral form, which no longer exists. A little later, however, he said the referral form was not likely to have contained much besides a request for comparison of films. This in itself is contradicted by his report, which suggests that some detail of the plaintiff's symptoms had been provided.

[32] Dr Lees is no longer a specialist radiologist. He has not practised in that capacity since 1992. He is roundly criticised by Professor Bruce in his interpretation of the 1986 x-rays. In my view the passage of time, his long absence from practise as a radiologist, the missing referral forms, his age and his apparent difficulty with simple propositions in the witness box (even if only due to him being hard of hearing) all combine to create an actual prejudice that would prevent a finding that it is just and reasonable for the plaintiff to be able to pursue the cause of action against Dr Lees. I therefore reject the plaintiff's application for an extension of time against the second defendant.

[33] The plaintiff submitted that Dr Lees would in reality only be a 'bit player' in any proceedings because the insurer would qualify a specialist radiologist. The latter fact is no doubt correct but that would not exclude Dr Lees' involvement as the person alleged to have been negligent and entitled to defend his report".

Resolution of the application and appeal

42 I appreciate that the primary judge had the advantage of hearing Dr Lees give evidence and I accept therefore that Dr Lees gave the appearance, as his Honour said, of being frail and hard of hearing. However, having read Dr Lees' affidavit and the five page transcript of his oral evidence, his evidence seems to me to have been reasonably coherent and to the following effect:

(a) In preparing his radiology report, Dr Lees compared the 1986 x-rays with the 1982 x-rays.

(b) When practising as a radiologist, x-ray request forms enabled him to understand and address the referring practitioner's concerns.

(c) Based on the terms of his 1986 report in this case, Dr Lees believes that the only request made to him in the now missing x-ray request form was to advise whether there was any change between the 1982 and 1986 x-rays.

(d) Whether he was correct in advising that there was no such change could be ascertained now, simply by inspecting the two sets of x-rays.

43 In his report Dr Lees said under the heading "HIP - LEFT" that he could not identify any "specific cause for the symptoms". As the x-ray request form is missing, it is not known of what reported symptoms Dr Lees was informed. If Mr Cox's complaint against Dr Lees was that his report failed to identify a cause for reported symptoms, the absence of the x-ray request form would be significant and would render it difficult for Dr Lees to defend Mr Cox's proceedings. However the complaint is that Dr Lees failed to detect significant differences between the 1982 and 1986 x-rays. Dr Lees conceded in cross-examination that the merits of this complaint could be determined now by a simple comparison of the two sets of x-rays.

44 In these circumstances I do not consider that Dr Lees will be prejudiced by the absence of the x-ray request form or by any of the other circumstances identified by the primary judge in responding to Mr Cox's claim as presently formulated. In my view, his Honour therefore erred in denying Mr Cox an extension of time to proceed against Dr Lees.

THE CLAIM AGAINST DR YUEN

Mr Cox's evidence

45 Mr Cox gave evidence that after an initial consultation with Dr Yuen, he returned to see him on 6 January 1998, with x-rays that had been taken in the interim. Mr Cox said that he was feeling "a lot better" then (Transcript pp 7 - 8) and that Dr Yuen "said that he would leave it for now but if anything changed to come back and he'd refer me to Dr Ho", an orthopaedic surgeon. Mr Cox said it did "get worse". He said that he had a three or four week episode of constant pain which occurred three or four times in 2008 (Transcript p 8).

Dr Yuen's evidence

46 Dr Yuen said in his affidavit of 23 August 2011 that his notes indicated that at the consultation with Mr Cox on 6 January 1998 he observed degenerative changes in the x-rays of Mr Cox's left hip and that he referred Mr Cox to Dr Ho. He deposed that, in accordance with his usual practice, he would have written out a referral and given it to Mr Cox. Dr Yuen adhered to this evidence in cross-examination.

The judgment at first instance

47 The primary judge referred to the evidentiary conflict between Mr Cox and Dr Yuen as to whether Dr Yuen gave Mr Cox a referral to Dr Ho at the consultation on 6 January 1998, or simply indicated that Mr Cox should return to see him if his condition worsened. His Honour considered that Dr Yuen would be able to deal with that issue at the hearing of proceedings against him and would not be prejudiced by the delay in their commencement. That finding is not challenged on appeal.

48 The primary judge then referred to Dr Yuen's argument that it would be futile to extend the time to bring proceedings against him because any damages "would be so minimal as to be out of proportion with the costs and stress of defending the claim" because "[a]t best [Mr Cox's] damages would have been confined to a period of about three months during most of which the plaintiff would have been in practical remission" (Judgment [39]). In other words, by not returning to see Dr Yuen when his condition worsened, Mr Cox failed to mitigate his loss.

49 The primary judge concluded as follows:

"The plaintiff's response to this argument was that he had lost faith in Dr Yuen and therefore it was reasonable that he did not return to see him. This argument I think has a fatal flaw: even accepting the loss of faith in Dr Yuen there is no reason why the plaintiff could not have consulted another general practitioner to obtain the referral. The plaintiff had been pleased with the suggestion of Dr Ho. No evidence was put forward as to why the plaintiff could not have consulted another doctor to obtain the referral. I would add that even if the plaintiff was disillusioned with Dr Yuen I do not see why that would have prevented him, even if only by telephone, in requesting the referral to Dr Ho.

If the extent of the plaintiff's damages against Dr Yuen are limited to three or four months, during most of which time the plaintiff was not suffering one of his periodic exacerbations, then damages would be very small indeed. The plaintiff submitted that the size of the damages should not be taken into account. Once it was established that the plaintiff might recover damages then the extension should be granted. I am, however, looking at whether an extension of time would be just and reasonable and in my view I can take into account the likely size of the damages together with the length of time that has passed during most of which Dr Yuen has been entitled to assume that he would not be sued. My conclusion is that it would not be just and reasonable to extend time for the action against Dr Yuen" (Judgment [40] - [41]).

Resolution of the appeal

50 As noted in [13] above, the primary judge's decision, in the case of Dr Yuen, was not discretionary, at least in so far as his Honour found that it would not be "just and reasonable" to extend time. Nevertheless, respect and weight must be given to his Honour's view.

51 I cannot see any error in his Honour's approach. On Mr Cox's evidence, the probabilities are that in the three or four months following his appointment with Dr Yuen, Mr Cox continued to feel "a lot better" and therefore suffered minimal, if any, discomfort. When his condition worsened, Mr Cox should, on his own evidence of Dr Yuen's advice to him, have returned to see Dr Yuen, or consulted another medical practitioner. The consequences of him not doing so cannot be visited on Dr Yuen.

52 Mr Cox did not lead any evidence to suggest that medical intervention in that three or four month period might have made a difference to the subsequent course or treatment of his condition. Nor did he lead any evidence to suggest that such evidence, although not presently available, might be available at the final hearing of the proceedings (see Sorrenti v Crown Corning Ltd & ACI Operations Pty Ltd (1986) 7 NSWLR 77 at 79). As a result his Honour's conclusion that the evidence before him did not indicate that any damages awarded to Mr Cox would be more than minimal was well-founded. This was a factor that the primary judge was entitled to take into account in exercising his discretion (see Allen v Drayton Coal Pty Ltd [1995] NSWCA 14 at [203]).

53 Accordingly I do not consider that there was any error in his Honour's approach and I would refuse leave to appeal.

ORDERS

54 As Mr Cox was unsuccessful at first instance in obtaining an extension of time in relation to his claim against Dr Lees, the primary judge presumably ordered Mr Cox to pay Dr Lees' costs. In his draft Notice of Appeal, Mr Cox sought an order that Dr Lees pay his costs at first instance in the event that Mr Cox was successful on appeal. Mr Cox is, in my view, entitled to succeed on appeal but I would nevertheless not make an order that Dr Lees pay his first instance costs.

55 Present authority indicates that even a successful applicant for an extension of time should usually pay the potential defendant's costs, at least where the latter's resistance to an extension was reasonable (Cavanagh v New South Wales [2008] NSWCA 350 [38]). As Dr Lees' opposition to an extension of time was reasonable, given the absence of the x-ray request form, and Mr Cox did not advance any argument as to why the usual position should be departed from, I would not disturb the order for costs made in favour of Dr Lees at first instance.

56 For the reasons that I have given, I propose the following orders:

(1) Grant leave to appeal in relation to the claim against Dr Lees.

(2) Otherwise dismiss the application for leave to appeal.

(3) Direct that within 14 days of the date of this judgment, the applicant file and serve a Notice of Appeal in the form provided to the Court, limited to the grounds and proposed orders relating to the applicant's claim against Dr Lees.

(4) Order that the order of Elkaim DCJ made on 1 September 2011 dismissing the applicant's Notice of Motion be set aside insofar as it related to the applicant's claim against Dr Lees.

(5) Allow the appeal in relation to the applicant's claim against Dr Lees.

(6) Order that the time for the applicant to file and serve a Statement of Claim against Dr Lees in the form already filed be extended to the date one month from the date of this judgment.

(7) Order Dr Lees to pay the applicant's costs of his application for leave to appeal, and appeal, in relation to Dr Lees.

(8) Order the applicant to pay the costs of Drs Keys and Yuen of the application for leave to appeal (including the concurrent hearing of the appeal that would have lain if leave had been granted).

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Decision last updated: 28 August 2012