GILMORE v QUITTNER [2011] NSWSC 809 (2 August 2011)

Last Updated: 3 August 2011

Supreme Court New South Wales

Case Title:	GILMORE v QUITTNER
Medium Neutral Citation:	[2011] NSWSC 809
Hearing Date(s):	22, 23 February 2011
Decision Date:	02 August 2011
Jurisdiction:	Common Law
Before:	Hall J
Decision:	The Amended Notice of Motion seeking orders under the Limitation Act 1969 extending the limitation periods is dismissed
Catchwords:	LIMITATION OF ACTIONS - claim in tort - medical negligence - extension of time to join two specialist medical practitioners (the respondents) - issues as to scope of duty, breach and causation - evidence required to satisfy the "gateway" provisions under s.60E(1) and s.60I(1) of the Limitation Act - delay - applicant held knowledge of matters relevant to statutory criteria under "gateway" provisions - the "just and reasonable" test not satisfied - applicant's burden of proof re same not satisfied - not shown to have evidence available to establish elements of a cause of action in tort or for breach of duty - not shown to have a viable cause of action.
Legislation Cited:	Limitation Act 1969 Limitation (Amendment) Act 1990
Cases Cited:	Australian Croatian Cultural & Educational Assoc 'Braca Radici' Blacktown Limited v Benkovic [1999] NSWCA 210 Brisbane South Regional Health Service v Taylor [1996] HCA 25; (1996) 186 CLR 541 Commissioner of Australia v Smith [2007] NSWCA 169 Commonwealth of Australia v Lewis [2007] NSWCA 127 Commonwealth of Australia v Pearce [2006] NSWCA 210 Commonwealth of Australia v Shaw [2006] NSWCA 209 (2006) 66 NSWLR 325 Conray v Scotts Refrigerated Freightways Pty Limited [2008] NSWCA 60 Drayton Coal Pty Limited v Drain (Court of Appeal, unreported 22 August 1995) Galea v Commonwealth [2008] NSWSC 44 Harris v Commercial Minerals Limited [1996] HCA 49; (1996) 186 CLR 1 Lopinto v The Central Sydney Area Health Service & Ors [2006] NSWSC 488 Martin v Abbott Australia Pty Limited (1989) 2 NSWLR 430 McLean v Sydney Water Corp [2001] NSWCA 122 PD v The Australian Red Cross Society (NSW) Division (1993) ATR 81205 Rutter v The State of NSW [2005] NSWCA 231 Schering-Plough Pty Limited v Page [2002] NSWCA 4 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 Yu v Speirs [2001] NSWCA 373
Texts Cited:
Category:	Interlocutory applications
Parties:	Peter Hugh Walter GILMORE v Dr George Andrew QUITTNER
Representation
- Counsel:	Plaintiff: D Campbell SC/T Meakes Respondents: G Evans
- Solicitors:	Plaintiff: Benjamin McInnes Lawyers Respondents: Hinde & Ginges Solicitors
File number(s):	2005/269136
Publication Restriction:

Judgment

HALL J:

(A) INTRODUCTION AND BACKGROUND

(1) The proceedings

1. Proceedings were commenced in this Court by Statement of Claim filed on 23 March 2005 in which the plaintiff, who is the applicant in the present application (to whom I shall refer in this judgment as "the applicant" ), alleged that the defendant, Dr George Andrew Quittner, a medical practitioner, was negligent in his treatment of him. He was a patient of and treated by the defendant at his medical practice from the early 1990s until 2004.
   
2. The applicant had a lengthy and complicated medical history prior to 2001, the year in which he consulted Dr David A Waugh, consultant physician and nephrologist (initially on 1 March 2001) and Dr Gavin Barr, gastroenterologist (seen on 6 November 2001), the respondents to the present application for an extension of the limitation period in respect of each practitioner.
   
3. The applicant initially filed a Notice of Motion under the Limitation Act 1969 ( "the Act" ) on 3 April 2009 in which he sought orders for an extension of the limitation period for the institution of proceedings against Dr Waugh and Dr Barr, as second and third defendants to the existing proceedings.
   
4. On 10 September 2010, the applicant filed an Amended Notice of Motion and an order was sought extending the limitation period in respect of Dr Waugh and an order joining Dr Barr as third defendant and extending the limitation period in respect of a cause of action against him under the provisions of s.60C(2), s.60E and/or s.60G and s.60I of the Act.
   
5. A Statement of Claim was filed against Dr Barr on 5 November 2009. The Amended Notice of Motion also seeks an order for leave for the filing of an amended statement of claim. No Statement of Claim has been filed with respect to Dr Waugh.
   
6. In support of the applications, the applicant principally relied upon his own affidavit sworn 9 September 2010, and that of his solicitor, Mr Timothy John Benjamin, sworn 10 September 2010.
   
7. Mr Benjamin, in his affidavit, stated that the plaintiff's case involved a claim against three doctors for an alleged failure to diagnose and properly treat a Hepatitis C virus infection in the plaintiff. Central to the applicant's case is a contention that he developed a Beta-cell non-Hodgkin's lymphoma allegedly due to a failure by the respondents (and Dr Quittner) to diagnose and treat a Hepatitis C condition. The applicant was treated (successfully) for the lymphoma (in 2003-2004) and for the Hepatitis C (in 2004). As discussed in greater detail below, Dr Waugh was involved in the applicant's treatment for a few months in 2001. Dr Barr saw him once only in November 2001. From 2002, the applicant's medical case was in the hands of a number of other medical specialists.
   
8. The applicant was represented on the application by Mr D Campbell SC, with him Mr T Meakes of counsel. The respondent was represented by Mr G Evans of counsel.
   
9. The length of this judgment exceeds what usually is necessary in determining an extension of time application. There are a number of reasons for that:-
   

· The applicant has had a very lengthy and complex medical history necessitating investigations and treatment by a significant number of medical practitioners.

· The results of investigations and treatment, in particular, in relation to the applicant's renal disease, have generated a large volume of reports.

· The issues arising on the application for extending the limitation periods require a close examination of the results of the relevant investigations, medical procedures and treatment.

10. Before turning to the detailed evidence and the issues arising on the applications under the Act, it is necessary to refer to the history of the proceedings against Dr Quittner and to the facts concerning the applicant's medical and hospital treatment.
    

(2) History of the proceedings

11. The primary proceedings against Dr Quittner may be summarised as follows:-
    

(1) The applicant alleged that Dr Quittner, his former general practitioner, failed to organise for him to have Hepatitis C serology until September 2001 (Statement of Claim at [15]).

(2) That Dr Quittner had, inter alia, failed to advise him to have such serology and investigate causes of abnormal liver function tests and refer him to an appropriate specialist (Statement of Claim at [17]).

(3) Had he been diagnosed as having Hepatitis C and appropriately treated, then he would not have suffered "any further damage or loss" from having contracted Hepatitis C. Importantly, in this respect, the particulars of injury include alleged ongoing damage to the applicant's liver and kidneys, including chronic renal impairment and "Beta-cell non-Hodgkin's lymphoma" .

12. On 18 May 2005, a Defence was filed on behalf of Dr Quittner.
    
13. On 2 September 2005, a Statement of Particulars was filed which set out particulars of alleged "injuries" . These repeated ongoing infection with Hepatitis C, ongoing damage to liver and kidneys as a consequence including chronic renal impairment and lymphoma.
    
14. On 5 April 2006, an Amended Defence was filed on behalf of Dr Quittner.
    
15. In the Notice of Motion filed on 3 April 2009 referred to in paragraph [3], the applicant sought an order extending the limitation period for the purpose of commencing proceedings against Dr Waugh and Dr Barr pursuant to s.60G of the Act. The Notice of Motion was supported by Mr Benjamin's affidavit of 3 April 2009.
    

(3) Overview

16. The applicant is presently 53 years of age (date of birth 18 May 1958). He has conducted his own practice as an accountant for many years. He participated as an amateur sprinter before his serious medical problems intervened.
    
17. He has, over the years, come under the care of a very large number of medical practitioners, including specialists and sub-specialists, for treatment of a range of problems. He suffered symptoms of kidney disease from at least the 1990s. These have included, relevantly, the following medical conditions:-
    

(1) Chronic renal (kidney) impairment involving or including:-

(a) microhaematuria and proteinuria; and

(b) membranoproliferative glomerulonephritis.

(2) He has, in more recent years, been diagnosed with:-

(a) lymphoma; and

(b) Hepatitis C.

18. The applicant was, as indicated above, treated for many years by Dr Quittner. Dr Quittner referred him to Dr Waugh in March 2001. Dr Waugh very soon thereafter arranged for a renal biopsy to be performed (on 14 March 2001) at Royal North Shore Hospital. The biopsy procedure was followed by complications, in particular, a severe post-biopsy haemorrhage which resulted in the applicant's prolonged hospitalisation and treatment for the haemorrhage. He made a slow recovery from that complication.
    
19. On the basis of a pathology examination undertaken as a result of the biopsy, an initial diagnosis of the applicant's renal problems was made, namely, mesangioproliferative lgM nephropathy.
    
20. The renal biopsy also revealed, significantly, areas of B lymphocyte infiltration raising the possibility of a lymphoma, a malignant form of cancer. In due course and in circumstances discussed below, the applicant was diagnosed with a Beta-cell non-Hodgkin's lymphoma.
    
21. At least partly by reason of the complications arising from the post-biopsy haemorrhage, the investigation and treatment of the Hepatitis C infection was not pursued, with specialists giving priority to the investigation and treatment of the applicant in 2002 and 2003 for the potentially life-threatening lymphoma.
    
22. He came under the care of Dr Mark J Penny, Consultant Physician Nephrology & Hypertension, on 20 July 2002 at the request of Dr Quittner, that is, a little over 12 months after he first saw Dr Waugh.
    
23. Dr Penny, in his report dated 4 April 2006 to the applicant's previous solicitors, Lamrock Solicitors ("Lamrocks" ), stated that he did not provide specific treatment for the applicant's diagnosed renal disease having regard to its stability over the previous decade or so. He said that he was much more concerned that the applicant's treatment based on the presence of lgM K paraprotein and lgM deposition shown on the renal biopsy in association with a lymphoma, rather than on the renal disease. The applicant agreed with Dr Penny's suggestion that he see Dr Sam T Milliken, a haematologist, at St Vincent's Hospital. An appointment was made for the applicant to attend Dr Milliken. However, he did not attend. Dr Penny noted "... on one or two occasions I expressed to Dr Quittner my concerns about Mr Gilmore not having seen Dr Milliken" (Dr Penny, 4 April 2006, at p.3). As discussed below, it was some considerable time before the applicant acted on Dr Penny's advice and attended on Mr Milliken.
    
24. In his report dated 17 November 2008 to the applicant's solicitors, Dr Penny stated that, in July 2002, his major concern was that the applicant had lymphoma with likely renal involvement which had not been assessed between diagnosis in 2001 and when he came to see him in the second half of 2002.
    
25. Dr Penny's report indicates, consistently with what is set out above, that the focus of attention, from a treatment point of view, was not upon the Hepatitis C related condition, glomerulonephritis (a form of kidney disease involving inflammation of the glomeruli) but, on the lymphoma with referral having been made to Dr Milliken (Dr Penny, 4 April 2006, at p.2 [l]). Dr Penny noted at p.5 of his April 2006 report that the evidence suggested the presence of glomerulonephritis dating back to the early 1990s with renal impairment, haematuria, low level proteinuria and an elevated lgM.
    
26. Dr Penny noted that the applicant did not see Dr Milliken until after he re-presented to him (Dr Penny) in April 2003 feeling extremely unwell with acute renal failure. The delay between July 2002 and April 2003 is discussed below. The applicant, at Dr Penny's insistence, saw Dr Milliken, who immediately undertook treatment (including chemotherapy over several courses) until November 2003. Dr Milliken was the supervising specialist in respect of the applicant's lymphoma treatment in that period.
    
27. Dr Penny observed in his report dated 17 November 2008 at p.2:-
    

"... Although one cannot be certain as in a less acute situation there may habve [sic] been more consideration given to the role of Hepatitis C, it is unlikely that this 6 month delay affected his long term renal progress."

28. This observation has particular relevance to the allegations sought to be made as to the delay by Dr Waugh and Dr Barr in investigating and treating the Hepatitis C. Dr Penny's approach in treating the applicant, as discussed below, was not to administer treatment for Hepatitis C in 2002 or 2003. As the history reveals, Dr Penny and Dr Milliken pursued treatment of the lymphoma. There is no suggestion in Dr Penny's detailed analysis in his April 2006 report that the delay in treatment of the applicant for Hepatitis C until 2004 had any adverse additional or permanent effects.
    
29. There are three aspects to the issue of "delay" . The evidence indicates, firstly, that the Hepatitis C had been a very long standing condition. Secondly, no specialist involved in the applicant's treatment in the years 2002, 2003 or 2004 perceived the need for any immediate treatment of the known Hepatitis C condition. Thirdly, as stated above, there was no statement in Dr Penny's report or in any report in evidence that suggested any omission or delay by treating specialists in 2001 or in the period from 2002 to 2004, constituted a breach of duty or that any failure to treat the Hepatitis C by Dr Waugh or Dr Barr in the relevant period in any way contributed to the development of the lymphoma or contributed to the development of any renal disease or abnormality.
    
30. It is also to be noted that, in relation to Dr Penny's last-mentioned report (p.2), a further renal biopsy performed in May 2004 confirmed an established membranoproliferative glomerulonephritis with severe tubulointerstitial disease (and subsequent testing also confirmed that the applicant had an active Hepatitis C with a high viral load). There was no suggestion that irreversible damage (or, in particular, the lymphoma) occurred by reason of any failure to treat the Hepatitis C condition in the period 2001 to 2004 nor any suggestion of a breach of duty for any failure or omission by any of the specialist medical practitioners who were involved in any of the years in that respect.
    
31. The Hepatitis C condition, as earlier noted, was treated in 2004 with a successful outcome.
    
32. Importantly, as the evidence referred to below establishes, the lymphoma was already in existence as at March 2001. It was, of course, because of its discovery at that time that medical attention was directed to treating the lymphoma. This fact contradicts a fundamental contention made in the course of submissions for the applicant, namely, the contention that the lymphoma occurred after Dr Waugh's and Dr Barr's consultations.
    
33. The proposition, subjacent to the applicant's allegations, that the Hepatitis C condition arose after the consultations with the two specialists in 2001 (the respondents) and contributed to the development of the lymphoma, accordingly, is not supported by the evidence. The evidence as to its existence as at March 2001 is to the contrary.
    
34. As indicated above, Dr Penny, in his report, made it clear that the Hepatitis C and the related membranoproliferative glomerulonephritis had, in fact, existed for very many years prior to 2001.
    
35. Dr Penny noted that the applicant developed nephrotic syndrome and hypertension. However, he also wrote that between 2002 and 2004, "He adamantly refused a renal biopsy" (Dr Penny, 4 April 2006, at p.3). The repeated refusal to undergo a biopsy, in part, delayed treatment of the Hepatitis C with Interferon which commenced in 2004.
    
36. Dr Penny referred to the applicant's admission to St Vincent's Hospital in the period April to June 2004 in relation to what was termed "acute-on-chronic renal failure" , nephrotic syndrome and severe hypertension. The applicant again refused renal biopsy. Dr Penny then wrote (at p.3):-
    

"... I finally insisted on him having a renal biopsy as I had been treating him blindly for some six months and otherwise could not determine ongoing therapy. He and I agreed to a laparoscopic procedure so that any bleeding could be controlled. This was performed by Dr Phillip Brenner on 1 May 2004 ..." .

37. Dr Penny concluded in his April 2006 report (p.4):-
    

"Current medical issues

...

Hepatitis C and Lymphoma: to date, there has been no recurrence of his lymphoma, and that his hepatitis therapy has also been successful with sustained clearance of Hepatitis C viraemia."

38. Dr Penny expressed the opinion that it was likely that the membranoproliferative glomerulonephritis had been present since the early 1990s with renal impairment and that the elevated serum lgM could have been in response to Hepatitis C or indolent lymphoma (p.5). He also indicated that there had been an accelerated phase of his glomerulonephritis during the treatment of his lymphoma.
    

(B) THE HISTORY OF MEDICAL CONSULTATIONS AND TREATMENT

(1) The chronology of events

39. It is necessary to place, in somewhat greater detail, the above events in chronological sequence. This will involve a degree of repetition of certain aspects referred to above. However, it is convenient to an understanding of the history of treatment that it be seen in a temporal sequence. Accordingly, the 18 year period from 1992 to date has been analysed below into three periods.
    

(2) The first period: December 1992 - March 2001

40. According to the applicant's evidence, he initially saw Dr Quittner on 31 December 1992, as part of a general review his condition. The written submissions for the applicant, however, state that Dr Quittner treated him from 1993 until 2004.
    
41. Dr Quittner sought a report from a Dr Lloyd Ibels, a specialist physician and nephrologist. In a report dated 17 March 1993, it was disclosed that in the past, the plaintiff had suffered from having blood in his urine. This had been treated, apparently successfully, principally through a number of lifestyle changes.
    
42. The medical history includes a reference to the applicant having stepped on a syringe on Bondi beach in 1979. He had treatment for having done so. The tip of the needle attached to the syringe remained lodged in his left big toe. As I understand it, this incident is said to provide a possible explanation as to how the applicant may have contracted Hepatitis C.
    
43. Annexed to the applicant's affidavit were copies of clinical notes relating to his admission to Royal Prince Alfred Hospital dated 3 August 1979 as well as copies of reports of Dr Ibels. In his report of 2 January 1990, Dr Ibels reported to Dr Frank Breslin, urologist, on the applicant's condition concerning a two year history of haematuria. Dr Ibels wrote that "... he certainly has primary glomerulonephritis" . I note that this diagnosis is consistent with specialist medical opinions expressed many years later in the period 2002 to 2005. Dr Ibels stated that he had organised further evaluation of his glomerulonephritis.
    
44. A copy of that report was sent to a Dr P G Middleton who, it seems, was then the applicant's general practitioner before Dr Quittner.
    
45. At some stage during the year 1990, Dr Ibels ordered a liver function test. The results of that test suggested the plaintiff had abnormal liver function (known as " elevated LFTs "): Affidavit of Peter Gilmore dated 9 September 2010 at Exhibit "PG5". The applicant continued to have elevated LFT's between 1993 and 2001: Affidavit of Peter Gilmore dated 9 September 2010 at [9].
    
46. In his report of 17 March 1993, Dr Ibels noted that in 1990 he had advised a review a month after the last time he saw him "... but he did not re-appear for that consultation" (see also below reference to Dr Janet Rimmer's reference to the applicant's failure to appear for a scheduled review). I note at this point that in the period 2002 to 2003, Dr Waugh, Dr Penny, Dr Feller and Dr Milliken all refer to later occasions when the applicant failed to appear for consultations for treatment. This is a factual matter that is to be taken into account in the evaluation of the evidence relevant to allegations of delay in treatment relied upon by the applicant including the alleged failure by Dr Waugh and Dr Barr to perform follow-up investigations and treatment for his Hepatitis C, a matter to which I will return below.
    
47. In her report dated 22 March 1993, Dr Janet Rimmer, specialist physician, noted that liver function tests revealed an elevated ALT and AST. Dr Rimmer had discussed the matter with Dr David Byrnes, gastroenterologist, who recommended that the applicant should have Hepatitis B and C serology undertaken and continue to have liver function tests. If the tests remained elevated, a liver biopsy was considered a possibility.
    
48. Dr Rimmer noted in her report of 22 March 1993:-
    

"... Peter was to return for review today, however, he did not attend ..."

49. In his affidavit (paragraph [8]), the applicant, by way of a contradiction to Dr Rimmer's statement, said that his symptoms improved and that he cancelled his further appointment.
    

(3) The second period: 1 March 2001 - July 2002

50. In 2001, the applicant was found to have had elevated levels of creatinine and he was mildly anaemic. He was referred to Dr Waugh for assessment of his kidney and liver functionality.
    
51. On 1 March 2001 the applicant first saw Dr Waugh in relation to ongoing kidney and liver symptoms. In his report also dated 1 March 2001, Dr Waugh noted that there were, in his opinion, two possible explanations for the applicant's symptoms. The first was an underlying renal deterioration. However, that deterioration, it was said, could not explain all of the applicant's symptoms. Dr Waugh also opined that an underlying viral illness may have been present and he referred to an intention to test the applicant for Hepatitis B and C. He completed a pathology request form to that end.
    
52. On 12 March 2001 the applicant again attended on Dr Waugh. A CT guided renal biopsy was ordered at about that time.
    
53. The renal biopsy was performed on 14 March 2001. It revealed the presence of lymphocyte cells (cells indicative of the presence of a B cell non-Hodgkin's lymphoma). The applicant was then referred to Dr Christopher K Arthur, clinical haematologist, for review or confirmation of a lymphoma. Dr Arthur recommended a " wait and see " approach: Affidavit of Peter Gilmore dated 9 September 2010 at [15].
    
54. I note at this point that it was Dr Waugh's recommended investigations that, in due course, led to the detection and the successful treatment of the applicant's potentially life-threatening lymphoma.
    
55. On 16 March 2001, the applicant returned to hospital complaining of severe pain in the area of his kidneys. He was diagnosed with a renal (retroperitoneal) haemorrhage as a result of the biopsy that had been performed. He required a blood transfusion: St Vincent's Pathology Report at Exhibit "TB9" of the Affidavit of Mr Benjamin sworn 10 September 2010.
    
56. The applicant was hospitalised for a period of approximately two weeks after the biopsy. During that time Dr Waugh obtained his consent to undertake a bone marrow biopsy. This was done and it seems that, to some extent, it reinforced the lymphoma diagnosis.
    
57. Dr Arthur reported to Dr Waugh by letter of 23 March 2001. Dr Arthur noted that the renal biopsy had been undertaken by reason of an elevated creatinine which was suggestive of nephritis. He noted the biopsy confirmed a nephropathy with IgM nephropathy. However, it was also noted there was an abnormal lymphoid infiltrate consistent with mantle cell lymphoma.
    
58. The applicant was recorded as still having pain following the retroperitoneal haemorrhage. Dr Arthur noted CT scans of the chest and abdomen showed very small mesenteric and para-aortic lymph nodes. The kidney, however, did not appear to be obviously enlarged and there were no signs of lymphoma on the chest CT scan. The spleen was enlarged but not massively so.
    
59. Dr Arthur stated that it was important to obtain additional evidence for lymphoma elsewhere and it would be important for staging procedures, including a gallium scan and bone marrow examination, to be carried out.
    
60. Dr Arthur said that he explained the position to the applicant and the need for further evaluation, including, in particular, that if there was confirmation that there was a lymphoma, then it would require treatment with chemotherapy and possible radiotherapy.
    
61. On 24 April 2001, Dr Waugh again wrote to Dr Quittner enclosing two reports from Royal North Shore Hospital and St Vincent's Hospital concerning the applicant's kidney biopsy and bone marrow report. He noted that no definite diagnosis had been reached by Dr J Turner, an expert on lymphoma. He also noted:-
    

"Dr Turner does favour small lymphocytic lymphoma of a low grade nature. I think at this stage a wait and see approach is all that can be taken. Certainly no chemotherapy is indicated. I understand Peter has a review shortly with Chris Arthur."

62. Dr Waugh then noted, with regard to the management of the applicant's renal problems that it was important to make sure his blood pressure was kept under tight control at specified levels. The letter concluded:-
    

"Given the infiltrate in his kidney, I would monitor a creatinine clearance and 24 hour urine protein estimation at least every three months."

63. Dr Waugh wrote again to Dr Quittner on 3 May 2001. He noted that the applicant had returned to see him on 1 May 2001. That was the last consultation Dr Waugh had with the applicant. Dr Waugh said that he had had a long discussion with him concerning the results and provided him with a copy of Dr Turner's report.
    
64. The applicant reported that he was feeling better and was training and running quite quickly. He was eating well and gaining weight and had improved muscle tone.
    
65. Dr Waugh went on to state:-
    

"With regard monitoring of his medical problems, I would suggest the following:-

(1) A creatinine clearance and 24 hour urine protein excretion every 6 months.

(2) Measurement of serum EPG to monitor the paraprotein level every 3-6 months.

(3) Monitoring beta 2 microglobulin levels

( 4) A CT of his abdomen at intervals suggested by Chris Arthur probably every 6 months.

He requires no specific medication including antihypertensives at this stage. I have advised him to have a mild reduction in protein intake to around .8 g/kg/day and to maintain a generally healthy diet. He is coming back to see you to discuss referral to a nutritionist."

66. The applicant's evidence was that, following his attendance on Dr Waugh in March 2001, Dr Waugh did not discuss the contents of his report of 1 March 2001 to Dr Quittner with him or the possibility of Hepatitis C being involved.
    
67. The applicant said he resumed athletics training in May 2001.
    
68. He said that Dr Waugh had him complete consent forms for a series of tests. He said that subsequently, Dr Waugh told him no firm diagnosis of lymphoma type disease was made.
    
69. The applicant asserted that Dr Waugh had said to him that the biopsy had not thrown much light on the diagnosis or prognosis of his kidney disease - his case was "interesting" due to the lymphocyte element and that he was using his case as a case study for students.
    
70. In a letter sent by Dr Waugh to the applicant dated 10 December 2001, there is reference to the fact that Dr Waugh had attempted to contact the applicant a number of times since his last attendance on 1 May 2001. The portion of the letter pertaining to that aspect was objected to as being evidence of the fact as to the applicant's absences. However, I admitted it into evidence as a statement relevant to the basis upon which Dr Waugh acted, that is, attempts by him to contact his patient. In any event, the applicant's own evidence established that he was overseas frequently during that time (see below).
    
71. The applicant did not attend on Dr Waugh after his visit on 1 May 2001.
    
72. The applicant's evidence was that he consulted Mr Madden of Blessington Judd in relation to his rights against Royal North Shore Hospital and/or Dr Waugh in relation to the renal biopsy, haemorrhage and associated condition. He was advised that there was no evidence of any negligence.
    
73. The applicant's account of his referral and association with Dr Barr is set out in paragraphs 19 to 22 of his affidavit. He was referred to Dr Barr by Dr Quittner on an urgent basis, whereupon he attended Dr Barr's surgery on 6 November 2001.
    
74. It is necessary, at this point, to refer to Dr Barr's brief role in the applicant's medical case. Dr Quittner was the referring doctor. Dr Barr is a specialist gastroenterologist. He report of 6 November 2001 sets out details of the applicant' medical history. Dr Barr said he had arranged for the applicant to have Hepatitis C PCR and screens "for other forms of liver disease" (p.1). He said he would ask Dr Waugh whether tests had been done to look for cryoglobulin-related renal disease which is rarely associated with Hepatitis C. Additionally, serum cryoglobulin were to be measured. He noted "Clearly, Peter will not want to have a liver biopsy to further assess the problem" . He concluded by stating that he would be in touch again when he returned for review following his tests. He sent a copy of this correspondence to Dr Waugh on the same date.
    
75. Douglass Hanly Moir Pathology issued test results in November 2011, noting Dr Barr on the sheet and that copies were sent to Dr Quittner and Dr Waugh.
    
76. Mansfield Pathology issued further test results on 12 December 2001, noting copies to Dr Barr and Dr Quittner.
    
77. There is nothing in the evidence before me to establish whether these results or their significance was relayed to the applicant by Dr Barr.
    
78. The applicant stated that Dr Barr did not specifically tell him of a potential connection between kidney disease and lymphoma. In paragraph [20] of his affidavit sworn 9 September 2010 he set out his discussion with Dr Barr, in particular, Dr Barr's reference to the danger of commencing interferon treatment. He said Dr Barr said he would speak to Dr Quittner about treatment of that kind.
    
79. The applicant stated that, although he understood that he "would be following up" with Dr Waugh and Dr Barr after seeing Dr Quittner, he did not hear directly back from either Dr Waugh or Dr Barr or from them via Dr Quittner. He said Dr Quittner spoke to him in April 2002 but by then he felt "disillusioned" by the lack of contact from Dr Waugh and Dr Barr. He said instead he asked Dr Quittner to refer him "to doctors at St Vincent's Hospital" .
    
80. On 15 November 2001, Dr Waugh wrote to Dr Barr. He noted that he had seen the applicant earlier in the year on referral by reason of his elevated serum creatinine, haematuria and excessive fatigue. Dr Waugh went on to state:-
    

"I thought he most probably had IgA nephropathy and in view of the rising creatinine thought he should be biopsied. As I think you are aware this is an extremely complicated procedure from which he had a large bleed requiring several units of blood."

81. Dr Waugh reported that the kidney biopsy showed what was thought to be an IgM neuropathy in that he had positive staining for IgM and C3 in the mesangial area. After making certain other observations, Dr Waugh then continued:-
    

"... What was more interesting however, was that within the kidney there were areas of cellular infiltrate raising the possibility of a lymphoma. Consistent with this was that he appears to have paraprotein. However, we were really unable to identify other areas of involvement including a bone marrow. I now wonder whether the whole thing could not be explained by the Hepatitis C positivity.

When I first saw Peter, he did have some mild abnormalities of liver function tests and I thought in fact I had ordered a Hepatitis B and C but cannot find any documentation of this.

I have enclosed the pathology reports from North Shore."

82. The question as to why the applicant did not continue in the care of Dr Waugh and Dr Barr arose both on the affidavit evidence and during the course of the hearing of the application. In the applicant's affidavit at [21] he stated that he understood:-
    

"... that I would be following up with Drs Waugh and Barr after seeing Dr Quittner. However, I did not hear back from either Dr Waugh or Dr Barr either directly or through Dr Quittner. Eventually, in April 2002, Dr Quittner contacted me about following up with Drs Waugh and Barr but, by then, I felt disillusioned by the lack of contact from Drs Waugh and Barr. I asked Dr Quittner to instead refer me to doctors at St Vincent's Hospital, Darlinghurst."

83. Leaving aside the circumstances in which there were no further attendances by the applicant upon either Dr Waugh or Dr Barr subsequent to May 2001 (so far as Dr Waugh is concerned) and November 2001 (so far as Dr Barr is concerned), it is clear, on the applicant's evidence, that by April 2002, he had determined that he would seek medical treatment elsewhere.
    
84. It is noted in the written submissions for the respondents that the applicant continued to attend on Dr Quittner on various dates following his attendances on Dr Waugh and later Dr Barr. Dr Quittner's patient file records are said to establish the following attendances by the applicant on Dr Quittner:-
    

(1) 30 June 2001;

(2) 6 July 2001;

(3) 10 August 2001;

(4) 17 August 2001;

(5) 22 August 2001;

(6) 27 September 2001;

(7) 5 October 2001;

(8) 24 October 2001; and

(9) 30 October 2001.

85. Subsequent to the consultation with Dr Barr, Dr Quittner's notes indicate that the applicant attended on him on the following dates:-
    

(1) 6 November 2001 (the same date as he attended Dr Barr);

(2) 17 November 2001;

(3) 22 November 2001;

(4) 23 November 2001;

(5) 27 November 2001;

(6) 11 December 2001;

(7) 12 December 2001;

(8) 9 February 2002 (Dr Moya Molloy);

(9) 13 March 2002;

(10) 12 April 2002;

(11) 17 April 2002;

(12) 6 May 2002;

(13) 8 May 2002;

(14) 16 May 2002;

(15) 20 May 2002;

(16) 28 May 2002;

(17) 29 May 2002;

(18) 7 June 2002; and

(19) 17 June 2002.

86. I note at this point the submission made on behalf of the respondents that, given the consultations with Dr Quittner that followed the attendances by the applicant on Dr Waugh and Dr Barr, they would be prejudiced if the limitation periods were extended in that they were not privy to the content of any consultations, discussions or advice given to the applicant by Dr Quittner or to the applicant's response to any such advice. In this respect, a further submission was made:-
    

"... It is not possible for Dr Waugh or Dr Barr to anticipate the content of such a case at any trial ... " (Respondents' written submissions at [37])

87. The applicant sent Dr Waugh a letter dated 30 November 2001 in which he set out some matters of complaint. Dr Waugh replied by letter dated 10 December 2001. In his response, Dr Waugh stated:-
    

"I've tried to contact you on a couple of occasions since May, but you have been overseas".

88. I will return to the significance of the applicant's absences at various times overseas in the discussion below.
    
89. On 17 August 2001 a routine blood test was undertaken at the request of the applicant's life insurance provider, Colonial Underwriting. The test detected the presence of elevated LFTs and recorded a positive result for Hepatitis C. This information was conveyed to Dr Quittner in a report dated 30 August 2001.
    
90. The applicant then returned to Dr Quittner. Dr Quittner referred him to Dr Barr, who, as earlier noted, saw him on 6 November 2001. That, as previously observed, was the first, and the only time the applicant saw Dr Barr.
    
91. Dr Barr wrote letters dated 6 November 2001 to Dr Quittner and to Dr Waugh in which he stated that he considered that treatment for the Hepatitis C, in particular, by Interferon, should not commence at that time as such treatment could exacerbate the applicant's apparent depression.
    
92. Dr Barr raised a matter of importance in relation to treatment for the Hepatitis C condition. He specifically referred in his last-mentioned letter to the fact (as Dr Penny also later noted) that the applicant had refused to have a liver biopsy - a pre-condition to the commencement of Interferon treatment for Hepatitis C at that time under the Pharmaceutical Benefits Entitlement Scheme.
    
93. In response, Dr Waugh, when writing on 15 November 2001 to Dr Barr, noted, in relation to the applicant's assessment, the following:-
    

" ... I now wonder whether the whole thing [referring to the kidney disfunction] could not be explained by the Hepatitis C positivity.

When I first saw Peter he did have some mild abnormalities of liver function tests and I thought in fact I had ordered a Hepatitis B and C but I cannot find any documentation of this.

I have enclosed the pathology reports from North Shore.

... I suspect from a clinical point of view that the Hepatitis C positivity has been present for some time however, as he has a long history of abnormal liver function tests as well as when I first saw him, problems with chronic fatigue and abnormalities of his full blood count. "

94. In the latter half of November 2001, the applicant was overseas (transcript, p.28). In the period between 2001 and 2003, there is evidence that the applicant was overseas some 28 times in that period. His time spent out of Australia, to a point, explains the applicant's intermittent medical attendances.
    

(4) The third period: 20 July 2002 - Present

95. I have earlier referred to the fact that the applicant first saw Dr Penny at St Vincent's Hospital on 20 July 2002. Dr Penny, from that time, became the applicant's treating specialist in relation to his renal disease, along with Dr Milliken and other specialists.
    
96. Dr Penny has stated that, following the applicant's attendance on him on 20 July 2002, his assessment of the applicant was "... formalised by mid-October 2002, and I corresponded with Dr Quittner on the 18 th of October 2002" : Dr Penny, 4 April 2006, p.2.
    
97. In that period, 20 July 2002 and 18 October 2002, the applicant attended on Dr Quittner on eight occasions. There is no evidence and certainly no suggestion that in that period Dr Penny expressed to Dr Quittner any opinion as to any need for urgent treatment of the applicant's Hepatitis C or any suggestion that any such treatment should be undertaken in that period.
    
98. On 18 October 2002, Dr Penny provided Dr Quittner with an extensive and detailed report. In it, he noted that it would be reasonable for the applicant to have three monthly reviews. He referred the applicant to Dr Milliken with respect to his lymphoma.
    
99. The report of 4 April 2006 sheds further light on Dr Penny's opinion as to treatment. In particular, at least initially, he recommended no treatment for the renal disease on the basis that the applicant had been stable over the course of the previous decade.
    
100. It is of significance to the allegations of delay against Dr Waugh and Dr Barr in 2001 in treating or recommending treatment for the applicant's Hepatitis C that, even as at and after July 2002, neither Dr Penny or other specialists in 2002 to 2003 perceived the need for treating the Hepatitis C as a priority, this, of course, being in the context of the investigation and treatment of the applicant in relation to other medical conditions undertaken in those years.
     
101. Dr Penny wrote to the applicant's solicitors on 17 November 2008 responding to a number of points set out in a letter from those solicitors dated 10 July 2008.
     
102. In cross-examination, the applicant conceded that he did not see Dr Milliken, as had been recommended by Dr Penny in the months of October, November or December of 2002 by reason of the fact that he was overseas in those months. He said that he did not endeavour to see Dr Milliken because Dr Penny had not suggested to him that it had been urgent for him to do so. Dr Penny's reports do not provide the applicant with support for this latter proposition.
     
103. The applicant initially saw Dr Milliken in March 2003 at St Vincent's Private Hospital with chronic renal failure and severe lymphoma.
     
104. Dr Milliken noted in his report dated 22 March 2004 that a conclusive diagnosis of cancer in respect of the lymphoma was made in March 2003, after the applicant's presentation with chronic renal failure. Between that date and August 2003, he underwent five cycles of chemotherapy. In September and October 2003 four cycles of chemotherapy were administered, followed by further chemotherapy in November 2003 accompanied by stem cell treatment.
     
105. Dr Milliken opined that, in the absence of that treatment, the applicant would have died.
     
106. As to treatment of the Hepatitis C condition, Dr Penny noted in his 2006 report that the applicant, in September 2003, had developed nephrotic syndrome and hypertension. However, it was also noted that " [the applicant] adamantly refused a renal biopsy ".
     
107. According to Dr Penny's 2006 report, early 2004 saw ongoing problems with the management of the applicant's hypertension, although his renal function at that time was " stable ".
     
108. In the period between April to June 2004, the applicant was admitted to St Vincent's Private Hospital with " acute-on-chronic " renal failure. Reference is made in Dr Penny's report dated 4 April 2006 to Mr Fogarty that, during the applicant's prolonged admission to St Vincent's Private Hospital from April to June 2004, the applicant again refused a renal biopsy. Dr Penny finally insisted on him having a renal biopsy.
     
109. Dr Penny set out the detailed course of the renal illness together with details of the treatment provided to the applicant (p.3 of his report). This included examinations that occurred in March and September 2003, the applicant's admission to St Vincent's Hospital from April to June 2004 with acute-on-chronic renal failure, nephrotic syndrome and severe hypertension and hyperkalemia. It is then noted:-
     

"He again refused renal biopsy and was pulsed with 3 x 1 g methylprednisolone. I finally insisted on him having a renal biopsy as I had been treating him blindly for some six months and otherwise could not determine ongoing therapy. He and I agreed to a laparoscopic procedure so that any bleeding could be controlled. This was performed by Dr Phillip Brenner on 1 May 2004 and revealed acute tubular necrosis in keeping with his acute illness, but that he also had an established membranoproliferative glomerulonephritis with severe interstitial fibrosis. This is a rare form of glomerulonephritis and in the clinical context was most likely Hepatitis C - related although without cryoglobulinaemia. The treatment of his renal disease was therefore the treatment of his Hepatitis C. Dr Robert Feller, gastroenterologist and hepatologist, was subsequently involved in Mr Gilmore's care. Mr Gilmore had a liver biopsy at the time of his cholecystectomy confirming chronic Hepatitis C infection and Grade 3 hepatic fibrosis. He had persistent mildly abnormal liver function tests, had a high HCV viral load."

110. It is noted that a period of approximately three years and two months elapsed between the applicant's first renal biopsy in March 2001 and the second biopsy performed on 10 May 2004.
     
111. Dr Penny noted (at p.4):-
     

"From August to October of 2004, Dr Feller managed Mr Gilmore's chronic hepatitis through the liver clinics at Royal Prince Alfred Hospital. Treatment comprised pegylated interferon and modified dose ribavirin (because of his renal impairment). Overall, therapy was well tolerated with therapeutic complications relating to leukopaenia anaemia, fluctuating renal function and hypertension. Therapy resulted in subsequent clearance of his hepatitis C viraemia."

112. The applicant's Hepatitis C condition was managed and successfully treated by Dr Feller in August/September 2004. The history of Dr Feller's treatment is set out in his report to the applicant's previous solicitors, Lamrocks, dated 23 August 2006.
     
113. Dr Feller initially saw the applicant at the request of Dr Penny. The applicant had undergone an uneventful laparoscopic renal biopsy on 29 April 2004 with Dr Brenner. On review on 5 May 2004, a Hepatitis C polymerase chain reaction (PCR) test was organised and was positive, consistent with viraemia and hosed genotype 3a infection. Dr Feller suggested that a liver biopsy be performed at the time of the laparoscopic cholecystectomy by Dr Brenner. This was performed on 10 May 2004 and it showed mildly active chronic Hepatitis C and grade 3 fibrosis.
     
114. Dr Feller treated the applicant for his Hepatitis C at the Liver Clinic at Royal Prince Alfred Hospital.
     
115. Following assessment, anti-viral treatment commenced on 9 August 2004 with pegylated interferon. By week four of the treatment, Dr Feller noted:-
     

"At week 4, WCC was 1.8, ALT had reduced to normal range at 19 and hepatitis C PCR was negative consistent with an early response ..."

116. Dr Feller also observed that Hepatitis C PCR remained negative at week 12 and Hepatitis C PCR remained negative at six months and at 12 months post cessation of treatment, consistent with a sustained response and resolution of infection. He therefore ceased treatment. He concluded at p.3:-
     

"Mr Gilmore is extremely likely to remain hepatitis C PCR negative and thus extremely unlikely to require any further treatment nor incur any costs."

117. In summary, the anti-viral (Interferon) treatment was commenced by Dr Feller on 9 August 2004 and he reported that the Hepatitis C was negative as of week four of the treatment.
     
118. The applicant, following recovery from his condition, has remained negative for Hepatitis C since that time. He has, however, had other serious ongoing medical conditions for which he has been hospitalised on a number of occasions. His clinical status as at 4 August 2010 is set out in a further report of Dr Penny on that date.
     
119. Subsequent to Dr Feller's report, on 12 October 2006, the applicant's present solicitors sent an authority from the applicant for the transfer of his file from Lamrocks. The file was transferred on 23 October 2006.
     

(C) SYNOPSIS OF THE APPLICANT'S COMPLAINT AGAINST DR WAUGH AND DR BARR

120. I will endeavour at this point to identify what are the principal complaints made by the applicant with respect to Dr Waugh and Dr Barr and how they are said to be relevant in the extension of time applications under the Act.
     

(1) Dr Waugh

121. The alleged breach of duty of care and breach of contract (the alleged failure by Dr Waugh to exercise reasonable skill and care) was initially said to have occurred between Dr Waugh's initial consultation on 1 March 2001 and 1 May 2001 (by either not treating the applicant for Hepatitis C or not carrying out investigations into that condition in the period 1 March 2001 to 1 May 2001 or referring him to a gastroenterologist in that period): transcript, at p.77, lines 7 to 26. It was somewhat more faintly argued that, as Dr Waugh wrote to Dr Barr in November 2001, he could still have recommended appropriate therapy up to that time had he known of the existence of the Hepatitis C: transcript, p.77.
     
122. As noted earlier, the applicant tested positive in August 2001. Accordingly, the existence of the applicant's Hepatitis C was established after Dr Waugh's consultation with the applicant and before Dr Barr saw him in November 2001.
     
123. In the event that the limitation period is extended, the applicant intends to pursue claims against the respondents on the basis that an early diagnosis and treatment of the Hepatitis C would have prevented further long term damage, in particular, renal damage including the emergence of "full blown B-cell Non-Hodgkin's Lymphoma" : Amended Statement of Claim at [69].
     
124. Reference is made in Mr Benjamin's affidavit to the claim against Dr Quittner based upon that practitioner's alleged failure to investigate and treat the applicant's Hepatitis C infection. In paragraph [4], it is stated that, as a probable result of the failure by Dr Quittner, the plaintiff developed renal failure and a non-Hodgkin's lymphoma. Such conditions, it was observed, were probably associated with "complications" of the Hepatitis C condition. As discussed below, these are allegations of the same nature that the applicant now wishes to pursue against Dr Waugh and Dr Barr, although in their case, many years after the expiration of the relevant limitation periods.
     
125. In paragraph [6] of the same affidavit, reference is made to treatment received from Dr Waugh and Dr Barr. Mr Benjamin stated:-
     

"... The Plaintiff contends that both those doctors had an opportunity to contribute to the diagnosis of his Hepatitis C and related conditions but negligently failed to do so."

126. Mr Benjamin's evidence was that he formed the view, having read Dr Vickers' report of 26 August 2008, that the alleged failure to treat or investigate the Hepatitis C condition by Dr Waugh and Dr Barr "... arguably contributed" to the plaintiff's "damage" which was said to include the lymphoma.
     
127. In the written submissions for the applicant (at [58]) it was stated that the applicant's "primary submission" is that he was unaware of the connection between his injuries and Dr Waugh's alleged acts and omissions until 6 April 2006, being the date on which his solicitor received the report from Dr Penny dated 4 April 2006. That submission, however, must be evaluated in light of the medical history, the various medical conditions from which the plaintiff suffered and the history of investigation and treatment, importantly the opinions expressed by Dr Penny. These matters are examined below
     
128. The primary facts relied upon in terms of s.60I(1)(a)(iii) of the Act was the proposition that if the applicant's Hepatitis C condition had been treated at any time up to the end of 2003 "... his permanent, moderately severe kidney damage would probably not have occurred" : Applicant's written submissions at [59].
     
129. Underlying the applicant's application for extending the limitation period are the following propositions:-
     

(1) The failure by Dr Waugh (and Dr Barr) to investigate and/or treat the Hepatitis C condition constituted a breach of duty by each of them.

(2) The alleged failure contributed to the development or progress of the applicant's medical (in particular, renal) conditions, including lymphoma.

(3) The applicant had no awareness of any possible connection between a failure to so investigate and/or treat the Hepatitis C until late 2008. This contention is made, notwithstanding that the Statement of Claim was filed in 2005 raising allegations of a similar failure against Dr Quittner.

130. In paragraph [32] of the applicant's affidavit, he attributes responsibility to his previous solicitors for not having advised him of a potential claim against Dr Waugh and/or Dr Barr. Indeed, he refers to advice from Mr Fogarty of Lamrocks, his former solicitors, that he had no actionable claim against Dr Waugh. The applicant stated that this advice from Mr Fogarty was provided in the period July 2005 to February 2006, being a period in which the proceedings against Dr Quittner in relation to the failure to test and treat him for Hepatitis C between 1993 and 2001 were on foot.
     
131. In the applicant's written submissions at [70], reference was made to the applicant himself having identified that there was "... a logical possibility that Dr Waugh had been in breach of his duty to him" , that he had "some suspicion of a potential act or omission on Dr Waugh's behalf" and again to the applicant's previous solicitor having "... sought to disavow him of any notion that he had a cause of action against Dr Waugh ..." . However, it was submitted that this did not amount to an awareness of " an actionable act or omission, let alone a connection between that and his personal injury ".
     
132. The analysis later in this judgment considers whether the applicant is correct in stating that critical facts as to the "circumstances" referred to in s.60E(1) were not within the applicant's knowledge well before 2009 when the original Notice of Motion was filed.
     

(2) Dr Barr

133. The applicant, as noted above, was referred to Dr Barr by Dr Quittner and he saw the applicant on one occasion only, 6 November 2001. Dr Barr wrote to Dr Quittner on that same date advising that, by reason of the applicant's emotional disposition, he did not feel that the time was right to introduce anti-viral therapy, in particular, the drug Interferon for the Hepatitis C, as the drug was capable of causing emotional lability and depression.
     
134. The alleged breach of duty of care and breach of contract (the alleged failure being by Dr Barr to exercise reasonable skill and care) is said to have occurred on or about 6 November 2001. It is the applicant's contention that Dr Barr's failure to investigate and/or treat the Hepatitis C condition and matters relevant to such treatment, such as procuring a liver biopsy etc, involved a breach of duty of care by Dr Barr.
     
135. Similar to the claim against Dr Waugh, the applicant relies upon the fact that no treatment or further investigation of the Hepatitis C was undertaken by or at the behest of Dr Barr. The subsequent medical conditions (including the lymphoma) are, so the applicant contends, at least in part, the result of the alleged breaches of duty of care by Dr Barr (and by Dr Waugh). One matter in this respect, as discussed above, is the evidence that the lymphoma existed as at March 2001.
     
136. In the written submissions (at [21]), it was stated for the applicant "Depending upon the evidence (the plaintiff's cause of action) accrued some time between 6 November 2001 and August 2004 ", that is, after the successful treatment of the Hepatitis C in August 2004. At [24] it was submitted:-
     

"That limitation period [ 3 years] necessarily expired by the end of August 2007 being three years after the Plaintiff had finally received appropriate treatment for his Hepatitis C."

137. Proceedings were commenced in this Court against Dr Barr, as earlier noted, on 5 November 2009.
     
138. The submission for the applicant was that, prior to receipt of Dr Vickers' report of 26 August 2008, the plaintiff could not have commenced proceedings against Dr Barr before that date. Reliance was placed upon the applicant's evidence in his affidavit in which he stated that until he had read Dr Vickers' report, "... I had not realised that Dr Barr may have been negligent in not immediately referring me for treatment for Hepatitis C" . For reasons discussed below, I have formed the view that Dr Vickers' opinion expressed in that report did not establish or form the basis for an allegation of negligence against Dr Barr.
     
139. Counsel for Dr Barr relied upon the fact that the applicant had already raised the same "failure to treat" contention against Dr Quittner for not having commenced treatment for the Hepatitis C well before August 2001. The same line of argument, it was submitted, would logically apply to other treating specialists who successfully managed the applicant's case from 2002, including in particular, Dr Penny.
     
140. As discussed below, after the applicant saw Dr Barr on 6 November 2001, he did not attend on him again for review as Dr Barr had anticipated. The applicant soon after seeing Dr Barr, went overseas and following his return he decided he did not want Dr Barr to manage his condition. He decided to seek treatment at St Vincent's Hospital. This was his position by April 2002.
     
141. The applicant was cross-examined on his affidavit. He agreed that following his consultation with Dr Barr in 2001, he went overseas in November 2001 (transcript, at p.27). He said that he thought that he went overseas in "... the latter part of November" , for approximately two to three weeks.
     
142. He also said in cross-examination that he went to Los Angeles in late 2001, he thought on two occasions, but could not remember the exact dates.
     
143. His evidence was that, in respect of the period January 2002 to July 2002, he was overseas several times (transcript, p.28):-
     

"Q. Were you overseas at all in the period January 2002 to July 2002?

A. I, specifically, can't pinpoint an answer to that question because I was overseas twenty-eight times possibly, or that that many times between 2001 and 2003. So, probably, yes. Probably yes."

144. The applicant subsequently clarified his evidence and said that he had made numerous trips overseas in the 18 month period from about June 2001 to December 2002.
     
145. Exhibit 1 is a copy of a letter from Dr Waugh to the applicant in which he stated "I've tried to contact you on a couple of occasions since May, but you have been overseas ..." .
     
146. Exhibit 3 is a copy of a letter dated 11 December 2001 from the applicant to Dr Waugh stating "I will come to see you in the new year as I am off to Los Angeles tomorrow" .
     
147. In cross-examination, it was put to the applicant that, although he said he would see Dr Waugh in the new year (2002), he did not have any further contact with Dr Waugh (transcript, p.32). He subsequently agreed that he decided to leave Dr Waugh's care and seek treatment from doctors at St Vincent's Hospital.
     
148. He said that in the period 1 January to 31 March 2002, he travelled overseas. When asked how long he had been overseas in that period, he replied "four or five weeks of that period, intermittently" (transcript, p.32).
     
149. In relation to the period 1 April to 20 July 2002, he said that he was probably intermittently overseas.
     
150. The applicant agreed, in cross-examination, that the effect of the renal biopsy (in March 2001) was to make him reluctant to have any biopsy subsequent to that procedure (transcript, p.34). He agreed that, when he saw Dr Penny in 2003, Dr Penny wanted him to have a renal biopsy but that he refused (transcript, p.34). He agreed that Dr Penny recommended on a second occasion that he have a renal biopsy and, again, he refused (transcript, p.34).
     
151. Although in paragraph [21] of his affidavit, the applicant said that he did not hear back from either Dr Waugh or Dr Barr directly or through Dr Quittner following consultations with them, in cross-examination he agreed that he acted upon the basis that any referral back to Dr Waugh and Dr Barr would be made by Dr Quittner (transcript, p.39):-
     

"Q. The sequence, in which you make plain in the first sentence there, is the referral back to Dr Waugh after the last time you actually saw him would be done by Dr Quittner, isn't it?

A. Yes.

Q. And the same goes for Dr Barr, after you saw him on the one occasion only you would be going back to see him on referral from Dr Quittner?

A. Yes."

152. The applicant accepted that Dr Barr's report to Dr Quittner dated 6 November 2001, at its conclusion envisaged that Dr Barr would be seeing him for review. That letter concluded:-
     

"I shall be in touch again when he returns for review following his tests."

153. The applicant accepted that the letter made it plain that Dr Barr expected to see him again, as stated in his letter (transcript, p.40).
     
154. In cross-examination, the applicant agreed that by March 2001, Dr Waugh had not tested him for Hepatitis C. He was also aware, or became aware, that Dr Waugh had written to Dr Quittner (1 March 2001) recommending that the applicant be screened again for Hepatitis B and C (transcript, p.43). He agreed that, on many occasions, blood testing in the past had been conducted by Dr Quittner at his rooms (transcript, p.42). In evidence is a copy of a request signed by Dr Waugh (undated) to Douglass Hanly Moir Pathology requesting a number of tests, including Hepatitis C (Exhibit 4). The explanation as to what happened to the request does not appear from the evidence.
     
155. The applicant agreed that, at some point in the first half of 2002, Dr Quittner sought permission from him to send existing medical reports to Dr Waugh and Dr Barr, but that he refused permission saying (transcript, p.45):-
     

"I think that's correct. If that was simultaneous with my request to be referred to specialists at St Vincent's."

156. He was then asked:-
     

"Q. In relation to that, why did you not give permission to Dr Quittner to do that, to send those medical reports to doctors Waugh and Barr?

A. I was frustrated by doctors Waugh and Barr and I wanted my reports sent to a new doctor to whom I could consult at St Vincent's."

157. On the question as to why the applicant did not return to see Dr Waugh or Dr Barr following the latter's consultation in November 2001, the applicant made it clear in cross-examination that he had decided that he would not return to them (transcript, p.46):-
     

"Q. After you saw Dr Barr, I think you already agreed you saw Dr Quittner on a number of occasions in November and then in December?

A. Yes.

Q. And you didn't seek from Dr Quittner a referral back to Dr Barr on any of those occasions, did you?

A. No, I didn't.

Q. And you didn't seek from Dr Quittner a referral on any of those occasions back to Dr Waugh, did you?

A. No.

Q. And in April the following year Dr Quittner contacted you, specifically, on the subject matter of going to follow-up consultations with doctors Waugh and Barr, didn't he?

A. Yes.

Q. He contacted you about that, not the other way round, that's correct, isn't it?

A. That's correct.

Q. And you told him that you didn't want to see either of those gentlemen again, you wanted him to refer you to people at St Vincent's Hospital?

A. That is correct."

158. As indicated above, the applicant travelled overseas in the period between April to July 2002 and, following his decision not to seek further medical attention from either Dr Waugh or Dr Barr, he attended on Dr Penny on 20 July 2002.
     
159. Following Dr Penny taking over the management of the applicant's medical conditions, Dr Penny urged the applicant to see a specialist, Dr Milliken in relation to the lymphoma. However, he either failed or elected not to follow the advice to see Dr Milliken.
     
160. In cross-examination, he agreed that Dr Penny told him that he wanted him to see Dr Milliken about the lymphoma. It was put to him (transcript, p.61):-
     

"Q. You did not see Dr Milliken, did you?

A. No.

Q. You did not make an appointment to see him, did you?

A. No, and I didn't elect to be rushed into St Vincent's.

Q. The point of my question, sir, you elected not to take Dr Penny's advice referring you to Dr Milliken?

A. Yes.

Q. And by that stage, by the time you saw Dr Penny in July 2002, you had taken any care, any medical care, any medical advice to you, out of the hands of Dr Waugh or Dr Barr and put it into the hands of Dr Penny, had you not?

A. Yes, with the exception that I had relayed Dr Barr's advice to Dr Penny."

161. He was asked in cross-examination why he did not then attend on Dr Milliken between mid-December 2002 and March 2003. The applicant responded (transcript, at p.26):-
     

"A. The opportunity never arose to go to see Dr Milliken. I was not under the impression that it was urgent. Dr Penny didn't remind me and I certainly intended to go to see Dr Milliken, but by the time I saw him, I was already in hospital."

(D) STATUTORY PROVISIONS

162. Before considering the matters for determination arising on the evidence in support of the application, it is appropriate at this point to identify the relevant principles in the application of the relevant provisions of the Act.
     

(1) The provisions of s.60C, s.60E, s.60G and s.60I of the Limitation Act 1969

163. The Act was amended by the Limitation (Amendment) Act 1990 so as to give to the Court a discretionary power to extend limitation periods in respect of causes of action for negligence, nuisance or breach of duty.
     
164. The power to make an order under s.60C (in respect of Dr Barr) and s.60G (in respect of Dr Waugh) is qualified by the provisions of s.60E(1) and s.60I respectively.
     
165. Section 60C of the Act provides as follows:-
     

" 60C Ordinary action (including surviving action)

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application 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, not exceeding 5 years, as it determines."

166. Section 60E(1) is couched in the following terms:-
     

" 60E Matters to be considered by court

(1) In exercising the powers conferred on it by section 60C or 60D, 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 time at which the injury became known to the plaintiff,
  
• (d) the time at which the nature and extent of the injury became known to the plaintiff,
  
• (e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission,
  
• (f) any conduct of the defendant which induced the plaintiff to delay bringing the action,
  
• (g) 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,
  
• (h) the extent of the plaintiff's injury or loss."
  

167. Section 60G of the Act provides as follows:-
     

" 60G Ordinary action (including surviving action)

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(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." (emphasis added).

168. Section 60I of the Act is in the following terms:-
     

"" s.60I Matters to be considered by Court

(1) A Court may not make an order under s.60G or s.60H unless it is satisfied that:-

(a) the plaintiff:-

(i) did not know that personal injury had been suffered; or

(ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant's act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters in paragraph (a)(i) - (iii).

(2) Sub-sections (2), (3) and (4) of s.60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision."

169. In the case of a plaintiff who is able to satisfy the requirements of s.60E(1) and s.60I, it is open to the Court to order an extension of time for such period as it determines under s.60C and s.60G of the Act. The provisions provide then for a two-part inquiry. First, a determination as to whether the plaintiff satisfies the gateway provisions of s.60E(1) and s.60I. Second, if so, the question then is whether it is just and reasonable to extend the limitation period: Galea v Commonwealth [2008] NSWSC 44 at [6] per Johnson J.
     
170. The principles to be applied on the application in the present proceedings have been elucidated in a number of decisions, in particular, those of the Court of Appeal concerned with the construction and operation of s.60G and s.60I: Commonwealth of Australia v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325; Commonwealth of Australia v Pearce [2006] NSWCA 210; Commonwealth of Australia v Lewis [2007] NSWCA 127; Commissioner of Australia v Smith [2007] NSWCA 169 and McLean v Sydney Water Corp [2001] NSWCA 122.
     
171. Whilst the provisions of s.60I(1) are initially expressed in prohibitive terms, that prohibition is subject to the exception specified in the section. Accordingly, a Court may not make an order under s.60G unless it is satisfied of the matters set out in the section. The particular matters in s.60I(1)(a)(i), (ii) and (iii) are expressed as alternatives. Accordingly, it is for an applicant to demonstrate that one or more of those matters apply for the purpose of passing through what has been referred to as the "first gateway" .
     
172. Insofar as the matter in s.60I(1)(a)(i) is concerned, knowledge of the plaintiff ( "did not know that personal injury had been suffered" ), it has been held that the Court is concerned with the actual knowledge of the applicant/plaintiff and not his or her constructive knowledge or the knowledge of his or her agent or solicitor: Harris v Commercial Minerals Limited [1996] HCA 49; (1996) 186 CLR 1.
     
173. In relation to s.60I(1)(a)(ii) ("was unaware of the nature or extent of personal injury suffered" ), the expression "personal injury" is defined in s.11 of the Act as including a disease and, accordingly, the applicant's medical condition (Hepatitis C and any related conditions) falls within that definition.
     
174. I will return to the question of the applicant's knowledge of particular matters below. It is sufficient at this point to note that it is clear that when proceedings were commenced in 2005 against Dr Quittner, the applicant knew that he had suffered from Hepatitis C as established by the serology carried out in August 2001. He was also aware, as he contended against Dr Quittner in those proceedings, that there had been "delay" in investigating and/or treating him for that condition. He was aware or was conscious of the alleged effects or consequences of the "delay" , namely, an alleged progression of the underlying disease(s), for that is what he raised by way of an allegation or contention against Dr Quittner. In other words, he was aware when the Statement of Claim was filed on 23 March 2005 against Dr Quittner, as pleaded, that a delay or failure to treat Hepatitis C produced the "damage" he claimed in the various forms or respects set out in the Statement of Claim and in the Statement of Particulars.
     
175. In the way sought to be argued on his behalf in both written and oral submissions, the focus of the present applications was upon the contention that the applicant had no knowledge or awareness that any failure or omission in investigating and treating the Hepatitis C by Dr Waugh and Dr Barr during the months he considered them in 2001, even though those months formed part of the delay period he pleaded and relied upon in the Statement of Claim against Dr Quittner, namely, "from the early 1990's until 2004" : paragraph [8] of the Statement of Claim.
     
176. Section 60I(1)(a)(iii) specifies a requirement for a plaintiff to establish that he or she was unaware of the connection between the "personal injury" and the respondents' alleged act or omission at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted.
     
177. The requirements of s.60I to be satisfied include three matters - awareness of (i) personal injury, (ii) of tortious acts or omissions of the respondents and (iii) of the connection between those two elements.
     
178. It is noted that the requirements of s.60I(1)(a)(i)-(iii) are similar, albeit expressed in negative terms, to those listed in s.60E(1)(c)-(e).
     
179. Accordingly, it is important to examine, in particular, the way in which the applicant sought to establish a lack of knowledge or awareness in him of a connection between a failure by Dr Waugh or Dr Barr (or both) to investigate and treat him for Hepatitis C against the background of him having made similar allegations in the Statement of Claim filed in April 2005 against Dr Quittner. It was argued for the respondents that that pleading suggests an awareness in the applicant by at least 2005 of both the nature of the disease and the alleged connection between a failure to investigate and treat Hepatitis C and "damage" .
     
180. In that respect, it is appropriate to refer to the observations of Gleeson CJ in Drayton Coal Pty Limited v Drain (Court of Appeal, unreported 22 August 1995). In his judgment, Gleeson CJ at pp.7-8 (with whom Priestley and Meagher JJA agreed) stated:-
     

"It is important to bear in mind, however, that satisfaction of the requirements of s.60I(a)(iii) is not an end to the matter. One of the consideration which, in a given case, it may be proper to take into account under s.60G(2) is the extent of a plaintiff's awareness at the critical time of acts or omissions which, by reason of their connection with the plaintiff's injury, are to be relied upon as constituting actionable negligence. It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. The same applies to the other aspects of s.60I(1)(a). For example, a plaintiff might be able to establish that he or she was unaware of the full extent of personal injury suffered, but a Court must take the view that, at the relevant time, the plaintiff's awareness, although not complete, was so extensive that it would not be just or reasonable to extend the limitation period. Similarly, the state of a plaintiff's awareness of certain acts or omissions connected with the plaintiff's injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came to notice at a later time. In other words, s.60G(2) may, depending upon the facts and circumstances of a case, operate as an important qualification upon the practical effect of s.60I." (emphasis added)

181. I will return in the discussion below to the significance of these observations to the present application.
     

(2) The just and reasonable test

182. The statutory power conferred by s.60C(2) and s.60G(2) requires an evaluation of relevant facts and circumstances which include the matters specified in s.60E and s.60I. Section 60G provides, "... the court ... 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 periods as it determines" . The power referred to in this section is clearly a broad power. Section 60C is in similar terms, albeit that the limitation period may only be extended for a period of 5 years.
     
183. In Schering-Plough Pty Limited v Page [2002] NSWCA 4 at [15], Sheller JA observed that the question is whether in the circumstances of each individual case the applicant for leave has demonstrated that it is "just and reasonable" that the leave should be granted. Section 60G (as well as s.60C) manifests an intention that a Court exercise "individualised justice" . In that respect, what is "just and reasonable" must clearly depend on the circumstances of each case: Conray v Scotts Refrigerated Freightways Pty Limited [2008] NSWCA 60 at [104], citing Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199 per Mason P.
     
184. In Australian Croatian Cultural & Educational Assoc 'Braca Radici' Blacktown Limited v Benkovic [1999] NSWCA 210 at [5], Mason P stated:-
     

"[T]he expression['just and reasonable' [in s.60C] is probably a 'hendiadys'. However, the added emphasis conveyed by the word 'reasonable' is critical".

185. The determination as to what is "just and reasonable" in a particular case is based on an inquiry involving an evaluative judgment of the relevant facts and circumstances.
     
186. In Commonwealth of Australia v Lewis (supra), Beazley JA (with whom Santow and Ipp JJA agreed) addressed the principles that apply to an application for an extension of a limitation period. Reference was made at [22]-[24] to dicta in Brisbane South Regional Health Service v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 550 (per Toohey and Gummow JJ) and 554 (per McHugh J). Her Honour (at [22]) referred to dicta of McHugh J at 554 on the onus:-
     

"... When an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."

187. In Yu v Speirs [2001] NSWCA 373 at [17] per Rolfe AJA (Beazley and Ipp JJA agreeing), it was observed:-
     

"... there is clearly an obligation on the plaintiff ... in satisfying the requirement that it is 'just and reasonable' to extend time, not merely to plead a cause of action, which is not susceptible of being struck out, but to prove facts from which the Court can be satisfied that there is, at least, a reasonable prospect that the plaintiff has sufficient evidence , such that he or she will have a reasonable prospect of success on the ultimate hearing. That, which was stated expressly in s.58(2)(b), is implied into sections such as s.60C and s.60G on the basis that it is not just and reasonable to require a defendant to be burdened with a hopeless case, which is brought out of time ..." (emphasis added)

188. In Yu (supra), the Court referred to dicta of Hunt J (as his Honour then was) in Martin v Abbott Australia Pty Limited (1981) 2 NSWLR 430 in terms of s.58(2) of the Act and to PD v The Australian Red Cross Society (NSW Division) & Anor (1993) ATR 81205 in which Badgery-Parker J stated at p.6201:-
     

"However, the need (s.60(G)) for the Court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action ..."

189. Reference was made in Martin v Abbott (supra) at 433 to the need for a plaintiff/applicant to make it apparent that he or she had the evidence available to establish the cause of action and that such evidence could be adduced at trial.
     
190. In Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497, Priestley JA observed (at 520):-
     

"It is sufficient, in my view, to record that notwithstanding the less than burdensome onus which, at this stage of the proceedings, fell upon the appellant to provide to the Court sufficient evidence to show that she had a viable cause of action (see, eg, Martin v Abbott Australia Pty Ltd [1981] 2 NSWLR 430 at 437) the appellant, in the view of Studdert J - which view I share, and from which view Kirby P appears not to dissent - failed to do so."

191. The principle has also been expressed that, to obtain an extension of the limitation period, it is incumbent on an applicant to establish that he or she could prove his or her cause of action not in the sense of proof required at a final trial but that it would not be futile to extend time as, for example, where an element of a cause of action cannot be established: Rutter v The State of NSW [2005] NSWCA 231 at [31] per McColl JA (Handley JA and Hunt AJA agreeing). See also Conray (supra) at [105].
     

(E) APPLICANT'S SUBMISSIONS

192. I have earlier indicated the basis and the circumstances that explain the reason for the limitation action being brought against Dr Waugh under s.60G and s.60I of the Act.
     
193. Whilst the application concerning Dr Barr is brought under s.60C and s.60E, the two applications concerning both respondents require consideration of the following matters:-
     

(1) The time at which the "injury" became known to the plaintiff.

(2) The time at which the nature and extent of the injury became known to the plaintiff.

(3) The time at which the plaintiff became aware of the connection between the injury and the defendant/respondents' act or omission.

194. The Court in respect of both applications is then required to consider and determine the "just and reasonable test" under s.60C(2) and s.60G(2). That, in particular, requires attention be given to the matters subjacent to the case which the applicant seeks to pursue against Dr Waugh and Dr Barr.
     

(1) Time for making the application

195. Section 60I(1)(b) provides that the application must be made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i) to (iii).
     
196. As indicated in the discussion above, the applicant relied upon Dr Penny's report of 4 April 2006 as establishing the matters that are required for the purposes of s.60I of the Act. The application was, accordingly, made on the last possible day of the specified period (3 April 2009).
     
197. It was submitted for the respondent, Dr Waugh, that the relevant limitation period expired either on 29 March 2004 or 1 May 2004. I will return to the basis for that submission. It was contended, as noted above, that the applicant had knowledge of the s.60I(1)(a) matters by the end of 2005 (the year in which these proceedings were commenced against Dr Quittner). The respondent's submission was that the application, so far as Dr Waugh is concerned, must fail, it not having been brought within the three year limitation period as calculated from the date the applicant acquired knowledge of the relevant matters.
     
198. I have referred in paragraphs [174] and [175] to the factual matters that were within the applicant's knowledge when he commenced proceedings against Dr Quittner in 2005. I will deal with further factual matters concerning the same below.
     
199. Mr Campbell SC submitted that the limitation period in respect of Dr Waugh would most likely have expired in early November 2004, being three years after Dr Waugh's letter to Dr Barr. However, I noted that Dr Waugh last saw the applicant on 1 May 2001 and had not been requested to further review him thereafter. Alternatively, Mr Campbell stated that the "trigger" for the limitation period could have occurred sometime after the retainer was terminated in about March or April of 2002, in which event the limitation period would expire in approximately March or April 2005.
     
200. I consider, provided the applicant satisfies the requirements of the relevant limitation period in relation to Dr Waugh, that would be the period of three years calculated from Dr Waugh's last consultation in May 2001 although nothing turns on whether the limitation period in that event commenced to run in May or November 2001.
     

(2) The issue of delay

201. The submissions for the applicant concentrated on (i) the related questions of delay in making the applications for extending time and absence of knowledge as to facts relevant to a cause of action, (ii) causation and (iii) the question of prejudice. Very little was said in submissions on the questions of duty and breach of duty.
     

(a) Dr Waugh

202. It was acknowledged that the applicant must show that he became aware (or ought to have become aware) of one or more of the three matters listed in s.60I(1)(a) on or after 3 April 2006. Accordingly, the submissions for the applicant were directed to his knowledge of a connection between his "injuries" and Dr Waugh's "acts and omissions" in the three year period, 3 April 2006 to 3 April 2009.
     
203. Considerable weight was placed on the fact that medico-legal opinion only came to hand to the applicant and his solicitors "incrementally" over several years and that there was "ongoing doubt" as to the extent of any damage caused by the asserted breach of duty on the part of Dr Waugh.
     
204. The submission for the applicant was that he was unaware of the connection between his "injuries" and Dr Waugh's act and/or omissions before his receipt of a report from Dr Penny dated 4 April 2006, that is to say, on 6 April 2006. As I will discuss below, Dr Penny's report does not, in my opinion, provide any support for a cause of action against Dr Waugh. The report offers no criticism at all in respect of Dr Waugh's management of the applicant.
     
205. Reliance was placed upon a very general statement by Dr Penny that if the applicant's Hepatitis C had been treated at any time up to the end of 2003 (Dr Penny having been first consulted in July 2002), then his permanent, moderately severe kidney damage would probably not have occurred. A point was sought to be made of the fact that the applicant's solicitor, Mr Benjamin, drew this opinion to the applicant's attention in December 2006.
     
206. The applicant's evidence was to the effect that, in the period July 2005 to February 2006, his former solicitor, Mr Fogarty told him there was no damage resulting from any breach of duty by Dr Waugh.
     
207. Reference is made in the submissions to an email exchange between the applicant and Mr Fogarty on 1 and 2 February 2006.
     
208. Reference was also made to a file note of Mr Fogarty believed to have been made on or about 21 February 2001 and a further file note dated 2 May 2006 to the effect that Mr Fogarty advised the applicant that, in relation to his Hepatitis C, he had already "had the problems for too long" : Applicant's written submissions at [66].
     
209. The submission, accordingly, was that a finding should be made that the applicant was unaware of the connection between the personal injury and Dr Waugh's acts or omissions at the relevant time.
     
210. As to whether it was "just and reasonable" to order that the limitation period be extended, the submissions for the applicant addressed two matters. The first was the issue of delay in terms of both the length of the delay and the reasons for it. Secondly, the question of prejudice (said to be the absence of any prejudice).
     
211. Reliance was again placed upon the report of Dr Penny dated 4 April 2006 as constituting the "first evidence" that was available to the plaintiff, or his solicitors, that he may have a cause of action against Dr Waugh. I need not repeat the observation in paragraph [204] as to the absence of any relevant criticism by Dr Penny.
     
212. The applicant changed solicitors from Lamrocks to his present solicitors in October 2006. The submission was that he was only advised of the "significance" of Dr Penny's reports by Mr Benjamin in December 2006 and early 2007.
     
213. Reliance was placed on an advice from counsel having been received in February 2007 and to the applicant's affidavit evidence of a discussion that he said he had as to the possibility of commencing proceedings against Dr Waugh in the period from February 2007 to November 2008.
     
214. In relation to delay occurring between November 2008 and 3 April 2009, five factors were said to be relevant as set out in paragraph [78] of the applicant's written submissions. These need not be fully reproduced here. They, however, include the following points:-
     

· The established link between Hepatitis C and non-Hodgkin's lymphoma precipitated the plaintiff to consider the question of breach of duty by Dr Waugh.

· The applicant persuaded Mr Benjamin to write to Dr Waugh. Dr Waugh's response, in part, was reproduced in submissions. This related to Dr Waugh being unaware of investigations Dr Quittner had made in relation to Hepatitis C and Dr Quittner's advice to the applicant that, in late 2001, he had tested positive to Hepatitis C.

· The fact that discussions with Mr Benjamin concerning the advisability of commencing proceedings against Dr Waugh took place from November 2008. In this respect, two matters were disclosed as having been raised by Mr Benjamin which were said to be matters "... which materially increased the advisability of commencing proceedings against Dr Waugh" :-

· "Mr Benjamin had further advised that Dr Quittner's solicitors had requested that the Plaintiff discontinue proceedings on the basis that Dr Quittner had no assets."

· "Mr Benjamin had further advised that, in light of the risk of being unable to recover against Dr Quittner, the Plaintiff should look to join as many Defendants as reasonably appropriate." (Paragraph [78(iv)])

215. The delay in seeking to commence proceedings against Dr Waugh is, accordingly, attributed to several matters, in particular:-
     

· The absence of any expert evidence suggesting breach of duty or causation of damage on behalf of Dr Waugh prior to 4 April 2006.

· The claimed expression of an opinion by Dr Penny in his report of 4 April 2006 "consistent with" a failure by Dr Waugh "... to advise of Hepatitis C testing had been causative of some damage ..." which opinion was said not to have been brought to the applicant's attention until December 2006 and early 2007: Applicant's written submissions at [80(ii)].

· Issues concerning "the extent of damage caused" by any breach by Dr Waugh resulted in further delay.

· The receipt of medical reports in the period November 2008 and the end of March 2009 which reports it was asserted provided the basis for a claim.

216. It was acknowledged in the submissions at [81] that "The Plaintiff's overall medical negligence claim is an evidently difficult one ..." . It was further stated "... It is clear that there has been very considerable difficulty for the Plaintiff's solicitors in obtaining medico-legal support on the relevant issues - particularly in relation to causation of damage" (at [81]).
     
217. Accordingly, the submission was made that medico-legal opinions to support the claim had only come to hand incrementally over several years despite what was described as "the best reasonable efforts" on behalf of the applicant's legal advisers (at [82]).
     
218. It follows, it was suggested, that the delay should be regarded as having been reasonable in the circumstances.
     
219. It was further submitted that the explanation for the delay given by the applicant and Mr Benjamin in their affidavits "... comprehensively explains the delay ... and also fully explains the reasons for it" (at [84]).
     
220. The submission was that the Court should find it is "just and reasonable" to extend time.
     
221. On the question of prejudice, it is claimed that this is not a case where evidence that is no longer available since the proceedings were commenced. Additionally, Dr Waugh had only seen the plaintiff on "... a limited number of occasions" and he had made reports to Dr Quittner. The case was not, it was said, one where the recollections were not supported by written records.
     
222. Finally, reliance was placed upon the fact that no evidence had been adduced to support a case based on actual prejudice.
     

(b) Dr Barr

223. In relation to Dr Barr, s.60E(1)(a) specifically requires a court to consider the " length of and reasons for delay " in bringing proceedings. The submissions made with respect to Dr Waugh are similar and material to the determination of the application against Dr Barr. Where they differ, however, is the medico-legal evidence upon which the applications rely.
     
224. It is the applicant's submission that the necessary connection between Dr Barr's negligence and the applicant's injuries could not be established until the applicant received the reports of Dr Vickers dated 26 August 2008 and Professor Grulich dated 3 November 2008, sometime in late November 2008.
     
225. Further, and similarly to the submission made against Dr Waugh, the applicant contended that there was no evidence of prejudice adduced by Dr Barr and, on that basis, the claim against Dr Barr ought to be considered " just and reasonable " per s.60C(2).
     

(3) The issue of absence of knowledge of the connection between injury and breach of duty: s.60E(1)(e) and s.60I(1)(a)(ii)

226. Mr Campbell proceeded upon the basis that the relevant provision for the purposes of these proceedings against Dr Waugh was that contained in s.60I(1)(a)(iii), namely, " was unaware of the connection between the personal injury and the defendant's act or omission ..." - the issue of knowledge or awareness of the causal connection. Section 60E(1)(e) was submitted to be the relevant provision in relation to Dr Barr and is expressed so that the time the applicant became aware of the connection is relevant to the determination of whether an application is " just and reasonable ".
     
227. In summary, the applicant has to demonstrate that there is evidence of a breach of duty by Dr Waugh and Dr Barr that any breach was causally connected with the "damage" alleged and that he was unaware of those matters and hence was unaware he had a cause of action against Dr Waugh or Dr Barr during the limitation period. He must also have brought the application against Dr Waugh within three years of becoming aware of the "connection" between the alleged breach and "damage" .
     
228. In establishing these matters, the applicant relied, inter alia, on the report of Dr Penny, dated 4 April 2006, the report of Dr Vickers dated 26 August 2008 and that of Professor Andrew Grulich dated 3 November 2008. (The latter report is discussed below).
     
229. On receipt of one or more of those reports, the applicant claimed he first understood or was made aware of a connection between the alleged condition and the doctors' alleged breaches of duty.
     
230. It was submitted by Mr Campbell that, if it were to be accepted that the first time the applicant was aware of the relevant connection was August of 2008 or thereabouts, the applicant was well within time on both applications through the Notice of Motion having been filed in April 2009.
     
231. On the construction of the provisions constituting s.60G and s.60I, Mr Campbell referred to dicta of McDougall J in which his Honour stated in Lopinto v The Central Sydney Area Health Service & Ors [2006] NSWSC 488 at [47]:-
     

" 3. S 60I(1)(a)(iii) is concerned with the ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff's awareness of that legal complexion, is not what matters for the purpose of s60I(1).

4. The acts or omissions referred to in s60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s60G. Those acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff's particulars of negligence... "

232. Mr Campbell submitted that, in light of the evidence in support of the application, the Court would accept that the applicant was ignorant of the alleged acts (or more in point) the alleged omissions of Dr Waugh and Dr Barr said to have produced the long-term consequences (March to May 2001) and Dr Barr's care (6 November 2001).
     
233. Mr Evans, in reply, observed that when one looks to the particulars of negligence which the applicant relies upon against both Dr Waugh and Dr Barr, they are essentially similar to those that were pleaded against Dr Quittner in 2005, with some minor changes only to the terms of the action as pleaded against Dr Quittner as particularised in the claim. The submission was that the only conclusion open is that the applicant knew of the connection between the "injury" and the alleged omissions to investigate/treat of the respondents by at least a date in 2005.
     
234. Mr Evans referred to the decision in Harris v Commercial Minerals Limited (supra) at 10, where the majority considered that the knowledge of a connection (between injury and an act or omission) is actual knowledge, not constructive or reasonable knowledge. In other words, the applicant will be successful under the so-called "gateway" provision if he did not actually know that there was a connection.
     
235. Mr Evans then submitted that it could not possibly be the case, in light of the fact that the particulars of negligence against Dr Waugh and Dr Barr were of the kind pleaded against Dr Quittner, that the applicant did not actually know, at the time the Statement of Claim against Dr Quittner was filed in 2005, of the alleged connection between "injury" (the lymphoma etc) and the Hepatitis C condition and a failure to investigate or treat the Hepatitis C applied equally to Dr Waugh and Dr Barr.
     
236. The cross-examination of the applicant was relied upon as establishing an awareness in him of a number of factual matters which he relied upon as constituting the matters that evidenced a breach of duty by Dr Waugh and Dr Barr and that a causal link or connection between such a breach and his lymphoma and other alleged damage. As discussed earlier, on this latter aspect, the evidence does not establish a causal link to the lymphoma.
     
237. The applicant was cross-examined on his stated knowledge of relevant matters following his successful treatment for the Hepatitis C in 2004. It was put to him that by late 2004, he had acquired knowledge of the factual matters constituting the alleged negligence of Dr Waugh and Dr Barr and the connection between the alleged breaches of duty by each (transcript p.64-p.66):-
     

"Q. And at that stage, that is late 2004, you knew that, certainly as far as you were concerned in your view, you had not had that treatment from Dr Waugh?

A. Yes.

Q. And you knew you had not had that treatment from Dr Barr?

A. Yes.

Q. And to go one step back, you have not had the test that would have given the diagnosis to even have that treatment in your view?

A. Yes.

Q. That was the same shortfall in duty, not testing, that you alleged against Dr Quittner, was it not?

A. Yes.

Q. But well before you saw Dr Penny's report of April 2006, you knew the same things in relation to Dr Waugh as you knew in relation to Dr Quittner. May I go through them. Not testing in your view?

A. Yes.

Q. Not treating in your view?

A. Yes.

Q. Therefore, resulting in ongoing problems for 2002, 2003, 2004, up to at least March 2005?

A. Yes.

Q. I can go through the problems separately, if you want me to?

A. No. I knew that neither Quittner or Waugh had tested me.

Q. Do you remember seeing a psychiatrist, Dr Peter Morse?

A. Yes.

Q. You saw him in about September or 12 October 2005?

A. Yes.

Q. And you are aware that he reported directly to your then solicitors, Lamrocks?

A. Yes.

Q. You have read that report, haven't you?

A. Yes, but it was a long time ago. I have not read it recently.

Q. And you told Dr Morse that at least by 2001 your GP had referred you to some specialists?

A. Yes.

Q. And those specialists were Dr Waugh and Barr?

A. Yes.

Q. You told Dr Morse that you found out later that these specialists had recommended to Dr Quittner that he perform hepatitis tests?

A. Yes.

Q. And by those specialists you must be referring to Dr Waugh because you knew Dr Barr had not done that?

A. If you want to split hairs, Dr Barr did ask Dr Quittner to do a hepatitis C test.

Q. So, when you are talking about when Dr Waugh said he said found out later that both these specialists for the 2001 specialists, that must contemplate you having told him about Dr Waugh and Dr Barr?

A. Yes.

Q. That they both recommended to Dr Quittner that he perform hepatitis tests?

A. Yes.

Q. You knew that by October 2005?

A. Yes, because by then I had a copy of Waugh's letter.

Q. And you told Dr Morse that you were particularly upset because the type of hepatitis C that you had, if it had been treated immediately, would have been cleared up?

A. Yes.

Q. And by immediately, you mean so far as Dr Waugh is concerned, sometime in the timeframe you saw him, March to May 2001, or at least by the end of that year?

A. At the least by the end of that year.

Q. And the same in relation to Dr Barr, immediately, sometime shortly, that is, in the month or two following 6 November 2001?

A. Or in the following half year, say.

Q. All right. So, if you had been treated by either of those doctors, interferon being the treatment?

A. Yes.

Q. By at least April, May 2002, your hepatitis C would have been cleared up; that is what you told Dr Morse, was it not?

A. That is what I expected the result to have been subject to the same mix of ribavirin and interferon, pegylated interferon, being available at that time.

Q. You told Dr Morse that you were particularly upset because you had the type of hepatitis C that had you been treat immediately, it could have been cleared up?

A. Yes."

238. The reports of Dr Penny, Professor Grulich and Dr Vickers were relied upon as the medical basis for the application to extend the limitation periods. It was contended that they do not, however, constitute evidence as to the applicant's knowledge of the acts or omissions and any causal connection that give rise to the current claim in negligence. The reports do not, I note, provide support for any relevant duty or breach.
     
239. It was also submitted that the particulars of breach itemised in the proposed Amended Statement of Claim against Dr Quittner have been repeated across a number of years, and though variously expressed, were in substance to the following effect:-
     

(1) A failure to arrange for the plaintiff to have Hepatitis C serology.

(2) A failure to advise the plaintiff to have Hepatitis C serology.

(3) A failure to investigate the plaintiff's abnormal liver function.

(4) A failure to refer the plaintiff to a hepatologist or gastroenterologist specialising in liver disease.

(5) A failure to heed or in any way act upon specialist advice that the plaintiff undergo Hepatitis C serology.

240. In relation to Dr Waugh, the particulars of breach were framed in the following terms at [48] in the proposed Amended Statement of Claim that was attached to the Affidavit of Mr Benjamin, filed 11 February 2011:-
     

"(1) A failure to arrange for the plaintiff to have Hepatitis C serology, whether at or about the time of the Letter of 1 March 2001, or during the 2001 hospitalisation, or at all.

(2) A failure to advise the plaintiff to have Hepatitis C serology, whether in the lead up to, or during, or after the 2001 hospitalisation.

(3) A failure to investigate the cause of the plaintiff's abnormal liver function tests.

(4) A failure to refer the plaintiff to a hepatologist or gastroenterologist specialising in liver disease prior to November 2001.

(5) A failure to advise, counsel and/or procure the performance of a liver biopsy examination during the 2001 hospitalisation or at all.

(6) A failure to follow up his request to the first defendant in the letter of 1 March 2001 that the plaintiff be tested for Hepatitis C.

(7) A failure to ask the first defendant whether the plaintiff had ever been tested for Hepatitis C.

(8) Continuing to treat the plaintiff without any evidence as to the plaintiff's Hepatitis C status."

241. The particulars of breach as revealed by the proposed Amended Statement of Claim at [87] against Dr Barr are reproduced below:
     

"(1) Failure to carry out proper assessments and investigations of the Plaintiff's condition.

(2) Failure to advise, counsel or procure a liver biopsy as a pre-requisite to Interferon Therapy.

(3) Failure to explain to the Plaintiff and advise as to the importance of treating his Hepatitis C as soon as possible and the requirement of a liver biopsy as a pre-requisite to commencing Interferon Therapy.

(4) Advising that the Plaintiff's treatment for Hepatitis C should be delayed, whether because of the Plaintiff's emotional state or not at all.

(5) Failure to treat the Plaintiff for Hepatitis C.

(6) Failure to refer the Plaintiff to expert psychiatric assessment and counselling as a prerequisite to obtaining Interferon Therapy and especially in the Plaintiff's case as the Third defendant considered that the Plaintiff's emotional state rendered him unsuitable to undergo a liver biopsy and Interferon Therapy.

(7) Failure to contact the Plaintiff's general practitioner on receipt of the November 2001 Blood Test Results or the Waugh Letter.

(8) ure to contact the Plaintiff upon receipt of the November 2001 Blood Test Results.

(9) Failure to inform the Plaintiff adequately or at all of available alternative diagnostic procedures and investigations.

(10) Failure to have investigated whether the Plaintiff was able to be exempted from the requirement to have a liver biopsy in order to obtain Interferon Therapy.

(11) Failure to have discovered that the Plaintiff could have been exempted from the requirement to have a liver biopsy because of the Renal Haemorrhage.

(12) Failure to have certified that the Plaintiff was exempted from the requirement to have a liver biopsy on the ground of the Renal Haemorrhage and to have then referred the Plaintiff directly for Interferon Therapy.

(13) Failure to follow up the Consultation with Third Defendant by contacting either the Plaintiff or the First Defendant [Dr Quittner] and ensuring that the Plaintiff was scheduled for review."

242. In reply, two matters were relied upon by the applicant. Firstly, the claim against Dr Quittner is different in a material respect insofar as it relates back to negligence from the early 1990s. Secondly, there had been insufficient medical evidence to justify a claim against Dr Waugh or Dr Barr until such time as the receipt of reports from evidence from Dr Penny, Professor Grulich and Dr Vickers.
     
243. I accept the first submission insofar as there is a distinction in the claims, but it is not, in my opinion, one of any material difference for the purposes of the application. The allegations of alleged breach, set out above, are similar in the case of the three doctors. As to the second point, in order to commence the proceedings against Dr Quittner, the applicant was required to prove on the balance of probabilities, that the failure to diagnose the Hepatitis C caused or contributed to the development of the lymphoma and/or the renal disease in its various forms. The same allegation is now sought to be relied upon against Dr Waugh and Dr Barr. (I have earlier referred to evidence that establishes that the lymphoma pre-existed the consultations with Dr Waugh and Dr Barr.)
     
244. I consider that the observations of Gleeson CJ in Drayton Coal (supra) extracted in paragraph [180] are of particular relevance. Even if an applicant on an application for an extension of time does not have complete knowledge, his/her knowledge of relevant matters may be so extensive that it is not "just and reasonable" to extend the limitation period.
     
245. The applicant's evidence is that it became clear to him by mid-2004 that he had suffered from Hepatitis C for many years. He also stated (paragraph [29]) that, in June 2003, Professor Ronald O Penny told him the Hepatitis C was possibly the cause of his kidney disease and his lymphoma. This, he said, was the first time anyone had told him of such "connections" . A copy of Professor Penny's report dated 20 July 2004 was Exhibit "PG29" to the applicant's affidavit. It is again noted that the applicant did not have to know the legal consequence of the connection, just that there was a connection.
     
246. The applicant engaged, over time, a number of firms of solicitors in relation to his kidney disease. He initially retained Laurence & Laurence (August 2004) and then Lamrocks (July 2005 to October 2006). In October 2006, he retained his present solicitors. In paragraph [32] of his affidavit, the applicant stated that neither Lamrocks nor counsel who had been briefed advised him that he had a potential claim against Dr Waugh and/or Dr Barr. In paragraph [32], he stated:-
     

"... I spoke to Mr Fogarty several times about Dr Waugh's failure to have me tested and Dr Waugh's apparent belief that I had been tested for HCV prior to 1 March 2001. On each such occasion, Mr Fogarty advised that, because I had had HCV since the 1980s, the damage had already been done, and that I therefore had no actionable claim against Dr Waugh. I asked Mr Fogarty to write to Dr Waugh to clear up the question of whether or not Dr Quittner had ever told Dr Waugh that I had been tested for HCV prior to 1 March 2001. Although I understood that it was technically possible that Dr Waugh could answer in a manner suggesting he had been negligent, I did not expect him to do so, and my primary purpose in my solicitor writing to Dr Waugh was to attempt to bolster the case against Dr Quittner ..."

247. The applicant stated in paragraph [33] as follows:-
     

"Mr Fogarty advised me however that since I did not have an action against Dr Waugh, we should maintain a good relationship with him so he would be more inclined to help us against Dr Quittner. Mr Fogarty never wrote the letter I requested him to write to Dr Waugh."

248. In October 2006, the applicant had his file transferred from Lamrocks to his current solicitors.
     
249. In paragraph [37] the applicant stated:-
     

"In early December 2006 Mr Benjamin telephoned me and discussed Dr Penny's report dated 4 April 2006. Mr Benjamin drew my attention to Dr Penny's opinion that if I had received treatment for my Hepatitis C at any time up to the end of 2003 when my kidney function deteriorated markedly, the permanent, moderately severe kidney damage, with its attendant intractable blood pressure problems, would probably not have occurred. This was the first time anyone involved in my care had stated this to me."

(F) CONSIDERATION

(1) The issues of "delay" and the applicant's knowledge of material matters

250. The extent of the delay in the application is significant. The relevant events in summary are:-
     

(1) 2001 : consultations with Dr Waugh and Dr Barr.

(2) August 2001 : pathology confirmed Hepatitis C.

(3) 23 March 2005 : proceedings commenced by the applicant against Dr Quittner (three years and seven months following diagnosis of Hepatitis C as referred to in (2)).

(4) 3 April 2009 : four years following commencement of proceedings against Dr Quittner, notice of motion filed seeking orders for extending limitation periods (eight years and eight months following diagnosis of Hepatitis C).

(5) 5 November 2009 : Statement of Claim filed on behalf of the applicant commencing proceedings against Dr Barr.

251. Mr Benjamin's affidavit refers to medical reports that he received relevant to the question of a link between Hepatitis C and non-Hodgkin's lymphoma in 2008 (paragraphs [30] to [45]). That issue arose in the context of proceedings against Dr Quittner. There is no reference to any medical evidence sought or obtained on the issues of scope of duty or breach in relation to Dr Waugh's and Dr Barr's consultations and their respective roles in the applicant's case in 2001.
     
252. In late 2008, extensive information was received by the applicant's solicitors in relation to the assets of Dr Quittner and his wife: Mr Benjamin's affidavit, paragraph [46]. Information was also received that Dr Quittner did not have the benefit of insurance cover: Mr Benjamin's affidavit, paragraph [47].
     
253. Mr Benjamin stated that, up to this time, he was "unsure about commencing proceedings against Dr Waugh because it was not clear to me that any negligence by him had caused ... damage from which the plaintiff was now suffering" : paragraph [50]. He said several barristers he had consulted expressed similar concerns. This was put forward as "a substantial reason" why proceedings on an application to join Dr Waugh were not filed: paragraph [50].
     
254. In the applicant's written submissions dated 21 December 2010, the matters associated with delay in the period between November 2008 and 3 April 2009 were set out: paragraph [78]. In paragraph [78(iv)], it was stated:-
     

"From November 2008, the Plaintiff had been advised by Mr Benjamin of certain matters which materially increased the advisability of commencing proceedings against Dr Waugh, [PG para 51]:-

· Mr Benjamin had advised that the claim was potentially larger than previously thought in terms of quantum; and

· Mr Benjamin had further advised that Dr Quittner's solicitors had requested that the Plaintiff discontinue proceedings on the basis that Dr Quittner had no assets.

· Mr Benjamin had further advised that, in light of the risk of being unable to recover against Dr Quittner, the Plaintiff should look to join as many Defendants as reasonably appropriate."

255. In paragraph [47], he stated that, by reason of the potential size of the applicant's claim, he was concerned that Dr Quittner's assets would not be sufficient to meet any verdict, given that he was uninsured. Consideration was given to joining Dr Quittner's insurers who had apparently denied indemnity to Dr Quittner.
     
256. It is clear on the evidence that the applicant was aware of the fact of his Hepatitis C condition soon after the Hepatitis C serology undertaken in August 2001 was performed. The nature and extent of the condition was conveyed to him for the purpose of the proceedings against Dr Quittner on 23 March 2005.
     
257. The evidence then establishes that, by March 2005, the applicant knew of the fact of the diagnosis of his Hepatitis C, the alleged "damage" caused by the "injury" , the connection (as alleged) between omission to treat Hepatitis C and the alleged consequences of failure to treat, including a lymphoma. The failure to treat a known condition of Hepatitis C and the consequences of a failure to treat are all the elements and circumstances pleaded against Dr Waugh and Dr Barr. Knowledge of all these matters were known by 23 March 2005.
     
258. The allegations made against Dr Barr and sought to be made against Dr Waugh are set out in paragraphs 47C and 47G of the Amended Statement of Claim annexed to Mr Benjamin's affidavit sworn 3 April 2009. An updated version of the proposed Amended Statement of Claim was annexed to the Affidavit of Mr Benjamin dated 10 February 2011. The relevant particulars of breach are set out there at paragraphs [48] (against Dr Waugh) and [87] (against Dr Barr). The allegations of failure to arrange for a Hepatitis C serology, to advise the applicant to have such serology and refer to a hepatologist or gastroenterologist are the same as alleged against Dr Quittner.
     
259. There is an additional particular of negligence of a failure to perform a liver biopsy but the "damages" are the same - that serology and biopsy "... would have revealed that the plaintiff was infected with Hepatitis C" .
     
260. Accordingly, the facts concerning the contraction of Hepatitis C and knowledge of the causal connection to "damage" and the type of "damage" were all known by the applicant by 23 March 2005.
     
261. The delay between 2004 or at least 23 March 2005 and the filing of the Notice of Motion on 3 April 2009 for orders for extending the limitation period - a delay in the latter instance of almost four years - is not adequately explained or justified in circumstances where all facts concerning "injury" , nature and extent of injury, "damage" and "connection" between "injury" and "omissions" relied upon were all within the applicant's knowledge and relied upon to make allegations against Dr Quittner in the proceedings instituted against him and which are now almost four years on, sought to be raised again against Dr Waugh and Dr Barr.
     
262. I do not consider that the evidence establishes that the applicant has satisfied the statutory criteria under either s.60E(1) or s.60I(1). In particular, on the evidence no attempt was or has been made to obtain medical evidence (a) defining or establishing the scope of duty or (b) that addresses the issues of breach of duty in relation to either Dr Waugh or Dr Barr.
     
263. The matters that prompted attention to the possibility of commencing proceedings against Dr Waugh and Dr Barr arose out of a concern that difficulty may be encountered in recovery under a judgment, if entered against Dr Quittner (paragraphs [254] and [255] above). Up until 2008, as indicated in the above discussion, no attempt had been made to fully investigate the abovementioned issues as to Dr Waugh or Dr Barr and no satisfactory explanation has been provided for such failure. The delay and associated matters to which I have referred above, in my opinion, establish a failure by the applicant to discharge the onus on him in relation to the statutory criteria discussed above.
     
264. It is clear that the applicant had sufficient knowledge of the alleged factual matters upon which basis he seeks to proceed against Dr Waugh and Dr Barr by at least March 2005 and probably by 2004. This is also a matter relevant to delay and constitutes a further basis for the dismissal of the Amended Notice of Motion.
     

(2) Application of the "just and reasonable" test

265. There is a further basis upon which the applications against Dr Waugh and Dr Barr must fail. That is on the basis of the "just and reasonable" test.
     
266. The circumstances to which I have referred above concerning the applicant's knowledge of "injury" , nature and extent of injury, "damage" and connection are, of course, also relevant to the "just and reasonable" ground and may be taken into account in that respect. However, there is a further and independent basis in relation to the "just and reasonable" test which I have concluded requires the application be dismissed.
     
267. I have earlier set out in paragraphs [182] to [191] the principles that apply in determining what might be considered to be "just and reasonable" in determining an application for extending the limitation period. One principle is directed to the issue as to whether there is evidence of a viable cause of action and, in that respect, whether the evidence in the application establishes that the applicant has evidence to support the allegations of breach.
     

(a) The evidence against any negligent failure to treat Hepatitis C

268. Dr Penny's detailed analysis and approach does not support the applicant's contention that the respondents were under a duty to treat him for Hepatitis C. Dr Penny's approach was based upon prioritising treatment according to need. There existed other more serious and pressing medical matters requiring attention than Hepatitis C. Fortunately for the applicant, the combined specialist acumen, in particular, of Dr Waugh, Dr Penny were instrumental in detecting and diagnosing the applicant's lymphoma which led to successful treatment under the management of Dr Milliken.
     
269. Dr Penny expressed the opinion that it was likely that the applicant's renal disease:-
     

"... has been present for much longer. In keeping with this is evidence suggesting glomerulonephritis back to the early 1990s with renal impairment, haematuria, low level proteinuria and an elevated serum lgM ... the latter which could be in response to Hepatitis C or indolent lymphoma." (Dr Penny, 4 April 2006, p.5)

270. Dr Penny did not embark upon treatment or recommend treatment of the Hepatitis C in the years 2002 and 2003 and no error is established in this respect.
     
271. Dr Penny went on to state that he was more concerned about the need for the investigation and treatment of the presence of IgM K paraprotein and IgM disposition apparent on renal biopsy in association with a lymphoma, rather than his renal disease. He stated (p.3):-
     

"... The renal function may have improved with treatment of the renal B cell infiltrate. Mr Gilmore was in agreement with referral to Dr Sam Milliken, a Haematologist at St Vincent's Hospital, and my office made an appointment. Unfortunately Mr Gilmore did not meet with Dr Milliken, and on one or two occasions I expressed to Dr Quittner my concerns about Mr Gilmore not having seen Dr Milliken."

272. Dr Penny stated that the applicant's Hepatitis C related renal glomerulonephritis, membranoproliferative glomerulonephritis has "probably been present for many years before his biopsy diagnosis" .
     
273. Dr Vickers, in his report dated 25 June 2010, was of a similar opinion, stating that " It is possible that Mr Gilmore had had HCV infection for many years from an occult source and without his realisation ".
     
274. Dr Penny added (Dr Penny, 4 April 2006, p.8):-
     

"If he had successful therapy of his Hepatitis C in the early 1990s and Mr Gilmore's renal function normalised or stabilised at its levels of the early 1990s, his renal prognosis would be improved by definition as he would have had less renal injury from progressive glomerulonephritis ..."

275. He added:-
     

"Regarding if the hepatitis C had been successfully treated at later time points throughout the 1990s, my opinion is that successful treatment at any time up to late 2003 (before which time Mr Gilmore had maintained stable renal function with only mild renal disease) the course, prognosis, and therapy of his renal disease would be the same as if his hepatitis C had been successfully treated in the early 1990s."

276. However, as indicated above, it was Dr Penny's opinion that the 6 month delay between his initial referral to Dr Milliken and the applicant's eventual attendance with Dr Milliken was, in his opinion, unlikely to have materially affected the applicant's long term prognosis.
     
277. In terms of Dr Waugh's approach (relevant to questions of breach), it was on the basis of his assessment that the applicant's creatine levels had been rising that Dr Waugh concluded that he should be biopsied. His assessment and advice in that respect was plainly correct, as indicated by the histology consequent upon the biopsy undertaken on 14 March 2001. Dr Waugh drew attention, as recorded in his report to Dr Barr dated 15 November 2001, to the significant fact that within the kidney there were areas of cellular infiltrate raising the possibility of a lymphoma. Dr Waugh, as the requesting doctor, received an additional pathology report dated 20 April 2001 which recorded, inter alia:-
     

"... there is an abnormal lymphoid infiltrate which is suggestive of a lymphoproliferative disorder. The pattern of staining ... is consistent with a mantle cell lymphoma. However, the area of lymphoid infiltrate is small and further investigation is necessary for diagnosis."

278. The investigations instigated by Dr Waugh proceeded as follows:-
     

(1) He recommended in March 2001 that the applicant be screened for Hepatitis B and C as well as Toxoplasma, CMB and EBV and he signed the requisite pathology request for the tests to be done. However, at about the same time, the renal biopsy performed revealed areas of abnormalities, in particular, heavy B-lymphocyte infiltration which Dr Waugh considered called for investigation including ultrasound imaging.

(2) Subsequently, the abnormal B-lymphocyte populations were confirmed as indicating a B-cell non-Hodgkin's lymphoma. The applicant was referred to Dr Arthur on or about 23 March 2001. Dr Arthur stated that there was a need for further evaluation and that, if a lymphoma was confirmed, it would require treatment with chemotherapy and, possibly, radiotherapy.

(3) Slides were sent to Dr Jenny Turner of St Vincent's Hospital. Dr Turner was described by Dr Waugh as "the local expert with lymphoma" . Dr Turner reported on the histology on 19 April 2001 stating "The glomerular lesion may well be lymphoma-related" . Whilst no definitive diagnosis could be made at that stage, Dr Turner favoured a small lymphocytic lymphoma of a low grade nature. That provisional diagnosis was subsequently confirmed as accurate.

279. Dr Penny's report of 18 October 2002 indicates that he was aware not only of the details of the history of the applicant's renal impairment but also that he had had Hepatitis C and of the history and results referred to in the preceding paragraph. In that respect, he noted that "transaminases are reasonable stable" . It is apparent from Dr Penny's reports and approach that he did not consider that there was any need in the years 2002 and 2003 for further investigations or treatment of the applicant's previously diagnosed Hepatitis C. The subsequent treatment history validated his judgment in that respect.
     
280. Further investigations in 2002 and 2003 into the applicant's condition led in due course to a programme of specialist treatment, firstly, treatment directed to the eradication of a cancerous lymphoma and, subsequently to the Hepatitis C. Dr Penny's detailed account of the investigations and treatment confirmed his judgment that treatment of the applicant's Hepatitis C was not a priority medical issue in the period he was managing his treatment. The evidence establishes that the same position applied in 2001.
     
281. As observed earlier, Dr Penny said that he initially provided no specific treatment for his renal disease when he first saw him "... because of its stability over at least a decade" (Dr Penny, 4 April 2006, p.3) and that:-
     

"I was much more concerned that he needed investigation and treatment based on the presence if IgM K paraprotein and IgM deposition on renal biopsy in association with a lymphoma rather than his renal disease ..."

282. Following the applicant's failure to attend on Dr Milliken as recommended by Dr Penny, the applicant finally presented to Dr Penny five months later in March 2003 with "acute-on-chronic renal failure" and perhaps progressive renal lymphoma.
     
283. In relation to medical opinion obtained by the applicant's solicitors, the following are noted:-
     

(1) Dr Vickers, in his report dated 26 August 2008, expressed no opinion supportive of the proposition that, following the renal biopsy in March 2001 and the discovery of the applicant's non-Hodgkin's lymphoma that Dr Waugh or Dr Barr or Dr Penny or anyone else should have embarked upon investigations and treatment of the Hepatitis C condition.

(2) There is no opinion expressed by Dr Vickers suggesting that the lymphoma was not such a dominant abnormality that it deserved and required priority in treatment decision-making.

(3) No opinion is expressed by Dr Vickers that suggests that there was any relevant failure by Dr Waugh, Dr Vickers (or Dr Penny) to investigate and treat the Hepatitis C condition prior to the remission of the applicant's lymphoma.

284. There is, accordingly, no expert evidence that supports the proposition that any specialist medical practitioner should or would have taken any approach other than that pursued, initially, by Dr Waugh and then by Dr Barr and Dr Penny.
     
285. The evidence referred to above constitutes, in my assessment, a strong affirmative basis for the proposition that Dr Waugh and Dr Barr competently discharged their respective duties of care in their management of the applicant in the period of months that they were involved in his case.
     
286. In terms of the obligation upon an applicant in an application for extending a limitation period, as referred to by McHugh J in Brisbane South Regional Health Service (supra) (extracted in paragraph [186] above), the applicant has not, on this application established that he has available evidence that could establish a relevant duty to investigate and then treat the applicant for Hepatitis C in the respondents nor any breach of any duty by either respondent. The applicant, in other words, has failed to adduce evidence which establishes a viable cause of action against Dr Waugh and Dr Barr: Williams v Minister Aboriginal Land Rights Act 1983 & Anor (supra) (extracted in paragraph [189] above.)
     

(b) It is not just and reasonable to extend the limitation periods

287. The absence of evidence establishing the basis for a viable cause of action stands as an independent foundation for the conclusion which I have formed, namely, that it would not be "just and reasonable" to grant the application to extend the limitation periods against Dr Waugh or Dr Barr.
     

(G) CONCLUSIONS

288. The evidence in support of the application for an extension of the limitation periods under the Act fails to satisfy the statutory criteria under the Act.
     
289. In particular, the evidence provides no proper excuse or justification for the very substantial delay that has occurred before the application was made.
     
290. The applicant was aware of the matters and contentions he wishes to rely upon in proceeding against the respondents at least four years prior to the date of filing of the application.
     
291. The evidence does not support the contention for the applicant that he suffered "damage" being a lymphoma, by reason of an act or omission of either Dr Waugh or Dr Barr. The evidence establishes that he suffered from lymphoma prior to either of the respondents being consulted by him.
     
292. The evidence in support of the application does not disclose that the applicant has evidence to establish a cause of action against either Dr Waugh or Dr Barr.
     
293. In that respect, there is no basis in the evidence for a conclusion that the scope of their duty required either respondent to undertake or instigate investigations and treatment for Hepatitis C.
     
294. There is, in particular, no evidence available to the applicant of any act or omission constituting a breach of duty by either respondent.
     
295. Further, there is no evidence available to the applicant that is capable of establishing any causal connection between a breach of duty and injury or "damage" .
     
296. It would not be "just and reasonable" to extend the limitation period in respect of either respondent.
     
297. The applicant has not discharged the positive burden of an applicant for an extension of a limitation period of establishing that justice of the case requires such an extension.
     

(H) ORDERS

298. The Amended Notice of Motion is dismissed.
     
299. The appropriate order as to costs, on the basis of the costs follow the event principle, is that the applicant should pay the respondents' costs of the application on the ordinary basis. Unless it is indicated within the next 14 days that the applicant wishes to make submissions otherwise, then I so order.