Campbell bht Mammoliti v Ritchie [2026] NSWSC 754

Background

Campbell bht Mammoliti v Ritchie [2026] NSWSC 754 concerned a medical negligence claim brought against bariatric surgeon Dr James Ritchie arising from a biliopancreatic diversion (BPD) procedure performed on 9 March 1999. The plaintiff alleged that the surgery and subsequent post-operative management caused a range of physical and psychiatric conditions, including micronutrient and vitamin deficiencies, cognitive impairment, behavioural disturbances and psychological injury.

The proceedings involved a lengthy hearing before Weinstein J. Evidence was heard over 24 days, the plaintiff was cross-examined for 14 days, and 12 experts gave evidence. A substantial issue throughout the case was the plaintiff’s credibility and the reliability of his account when compared with contemporaneous medical and documentary records.

Proceedings were not commenced until 17 March 2020, more than 20 years after the surgery. The delay became a central issue in the case, particularly given the plaintiff had sought legal advice regarding a potential claim as early as 2009.

Limitation Periods

The defendant argued that the claim was statute barred under the Limitation Act 1969 (NSW), relying on the applicable three-year limitation period and the 12-year long-stop limitation period for personal injury claims.

The plaintiff sought to avoid those limitation provisions by relying on s 52 of the Limitation Act, arguing that he was under a disability for the relevant period. In the alternative, he sought an extension of time under the Act.

The Court rejected those arguments. Weinstein J found there was a significant and largely unexplained delay in commencing proceedings. The plaintiff first consulted solicitors in 2009 with the intention of pursuing a medical negligence claim. However, there was no satisfactory explanation as to why it took a further seven years to obtain advice from counsel, additional time to obtain expert evidence, and more than two years after that for proceedings to be filed.

The Court also noted there was no evidence explaining what advice had been provided by the plaintiff’s solicitors or whether the delay was attributable to the plaintiff or his legal representatives. The defendant had suffered actual prejudice as a result of the passage of time because evidence that would otherwise have been available was no longer obtainable. His Honour found:

[265] As I have found above, the plaintiff’s delay was significant and no cogent reasons for that delay have been offered by the plaintiff. Further, the defendant has suffered actual prejudice by reason of the delay because there is evidence which is no longer available to him. I do not find that the plaintiff has proved on the balance of probabilities that he has, in fact, suffered any injury or loss as a result of the defendant’s conduct.

[266] Furthermore, no conduct on the part of the defendant has induced the plaintiff to delay bringing the action. As for the steps taken by the plaintiff to obtain advice, I have found that the plaintiff first sought the advice of Spinks Elphick Ho in 2009 with a view to bringing a medical negligence claim against the defendant. Why it took an additional 7 years for the plaintiff to obtain advice from counsel, a further year to obtain Professor Wittert’s report, and more than two years after that for a Statement of Claim to be filed, is unexplained. There is no evidence about what advice was given to the plaintiff by Spinks Elphick Ho, and no evidence as to whether the delay in bringing these proceedings was due to the plaintiff or his solicitors.

[267] Even if I was to find that the cause of action was not discoverable until December 2017, I would nonetheless decline to grant an extension of the limitation period. The length of the delay, the absence of any attempt to explain that delay and the prejudice occasioned to the defendant as a result of the delay are such that it would be neither just nor reasonable for me to extend the long-stop limitation period under s 62A of the Limitation Act.

In considering whether the long-stop limitation period should be extended, the Court held that the length of the delay, the absence of any convincing explanation for it and the prejudice suffered by the defendant made it neither just nor reasonable to grant an extension. Weinstein J observed that this conclusion would have been reached even if the plaintiff’s cause of action had not become discoverable until December 2017.

Capacity

The plaintiff alleged that cognitive impairment and related difficulties had affected his ability to manage his affairs and pursue litigation. The case involved a number of tutors acting for the plaintiff over time, including his wife and later a friend.

Despite those allegations, the Court was not persuaded that the evidence established the type of disability relied upon by the plaintiff for the purposes of suspending limitation periods under the Limitation Act.

A significant factor was the Court’s assessment of the plaintiff’s evidence. Weinstein J described the plaintiff’s cross-examination as “devastating”, finding that much of his evidence concerning his employment history, health, relationships and treatment had been shown to be inconsistent with contemporaneous records. The Court found that the plaintiff’s reliability and honesty had been substantially undermined. His Honour noted:

[47] During the trial, the plaintiff was cross-examined by Mr Kelleher SC over 14 days. The cross-examination was, in a word, devastating. It substantially affected the plaintiff’s credibility, both as to his reliability and his honesty. The great majority of the plaintiff’s evidence in chief, including his history of employment, physical and mental health, relationships and treatment by Dr Ritchie, was demonstrated (with the use of contemporaneous records) to be plainly untrue.

In reaching those findings, the Court emphasised the need to assess credibility by reference to objective records and established facts rather than courtroom demeanour alone.

The decision demonstrates that allegations of cognitive impairment or incapacity must be supported by persuasive evidence. The existence of a tutor will not, without more, establish a disability that suspends the operation of limitation periods.

Sections 5O and 5I of the Civil Liability Act

The judgment also contains a useful discussion of ss 5O and 5I of the Civil Liability Act 2002 (NSW).

Weinstein J reiterated that s 5O does not operate as a defence in and of itself. Rather, it prescribes the applicable standard of care where a professional has acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice. Once established, s 5O qualifies the operation of the general negligence principles contained in s 5B.

There was no dispute that Dr Ritchie was practising a profession. The issue was whether his conduct accorded with competent professional practice at the time the treatment was provided. The Court accepted that the requirements of s 5O had been satisfied. The plaintiff’s claim ultimately failed on multiple grounds. The Court found that the defendant’s conduct met the applicable professional standard of care, that the plaintiff failed to establish breach of duty, and that the claim also failed under s 5I. The Court further held that causation had not been established. Even if breach had been proven, the plaintiff had not demonstrated on the balance of probabilities that any act or omission by the defendant caused the injuries alleged.

Key Takeaways

The decision reminds us of the difficulties faced by plaintiffs pursuing historical medical negligence claims. Long delays in commencing proceedings require a clear and persuasive explanation, particularly where legal advice has been obtained years earlier. Allegations of disability or incapacity must be supported by evidence capable of explaining why proceedings could not have been commenced sooner.

The case also shows that s 5O is concerned with determining the applicable professional standard of care rather than creating a standalone defence, in that where competent professional practice is established, and causation cannot be proven, a medical negligence claim will fail.

Contributors

Ren Li, Senior Associate

Jemillah Hughes, Law Graduate