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Almario v Varipatis (No. 2)

Almario v Varipatis (No. 2)

Case [2012] NSWSC 1578 21 December 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Almario v. Varipatis (No. 2) [2012] NSWSC 1578
Hearing dates: 3/12/2012 to 7/12/2012, 10/12/2012 to 11/12/2012 and 14/12/2012
Decision date: 21 December 2012
Jurisdiction: Common Law
Before: Campbell J
Decision:
1. Pursuant to s.60G Limitation Act 1969 extend the time for bringing the proceedings to 29th March 2012.
2. Judgment for the plaintiff against the defendant in the sum of $364,372.48
3. The defendant to pay the plaintiff's costs on the ordinary basis after they have been agreed or assessed.

Catchwords:
TORTS - negligence - medical negligence
LIMITATION OF ACTION - application to extend - Limitation Act 1969 (NSW) s60G
Legislation Cited: -Civil Liability Act 2002 (NSW)
-Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)
-Limitation Act 1969 (NSW)
-Workers Compensation Act 1987 (NSW)
Cases Cited: - Commonwealth v McLean (1996) 41 NSWLR 389
-Fox v. Percy [2003] HCA 22; 214 CLR 118
-Harris v. Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1
-Idameneo (No.123) Pty Ltd v Gross [2012] NSWCA 423
-Jackson v. Lithgow City Council [2008] NSWCA 312
-Malec v. JC Hutton Pty Ltd (No. 2) (1990) 169 CLR 638
-Rogers v. Whittaker (1992) 175 CLR 479
-Royal North Shore Hospital v. Henderson (1986) 7 NSWLR 283
-Seltsam Pty Ltd v. Ghaleb [2005] NSWCA 208; 3DDCR 1
-Strong v Woolworths Limited [2012] HCA 5; 86 ALJR 267
-Wyong Shire Council v Shirt (1980) 146 CLR 40
-Tabet v Gett [2010] HCA 12; 240 CLR 537
-Tai v Hatzistavrou [1999] NSWCA 306
-Vairy v. Wyong Shire Council [2005] HCA 62; 223 CLR 422
Category: Principal judgment
Parties: Luis Almario (Plaintiff)
Emmanuel Varipatis (Defendant)
Representation: Counsel:
Graham S.C. with N.J. Broadbent (Plaintiff)
D.J. Higgs S.C. with Dr. E. Peden (Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
TressCox Lawyers (Defendant)

File Number(s): 2012/100166

Judgment

Mr. Luis Almario is suffering from liver cancer which will be terminal. Dr. Emmanuel Varipatis is a General Practitioner who treated him between 13th August 1997 and 9th February 2011, with some interruptions in the continuity of the relationship.

The plaintiff says the defendant is legally responsible for the consequences of his pre-existing liver disease progressing to cirrhosis, liver failure and eventually liver cancer. The cause of action relied upon is negligence. A count founded on the tort of deceit was abandoned during the trial.

In general terms it is said that Dr. Varipatis should have been more proactive in treating Mr. Almario's early stages of liver disease by emphatically addressing the problem of Mr. Almario's morbid obesity. The issues between the parties will need to be canvassed in greater detail to explain the context in which the case has been fought.

Mr. Almario says that Dr. Varipatis, during the early period of his management of Mr Almario's condition, knew or ought to have known, from the history he received, his findings on examination, and the results of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Almario v Varipatis (No. 2)

Details

AGLC: Almario v Varipatis (No. 2) [2012] NSWSC 1578
Case: [2012] NSWSC 1578
Decision Date: 21 December 2012

CaseChat Overview and Summary

The case of Almario v Varipatis (No. 2) involved a medical negligence claim brought by the plaintiff, Almario, against the defendant, Varipatis, a medical practitioner. The plaintiff alleged that the defendant was negligent in his treatment of her, resulting in personal injuries. The matter was before the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's claim was time-barred under the Limitation Act 1969 (NSW). The defendant argued that the plaintiff's claim was brought outside the statutory limitation period and sought an extension under section 60G of the Act. The court had to determine whether the plaintiff's claim met the criteria for an extension of time.

The court found that the plaintiff's claim was indeed time-barred under the Limitation Act 1969 (NSW). However, the court granted an extension of time under section 60G of the Act. The court held that the plaintiff had acted with reasonable promptness in bringing the proceedings and that there were exceptional circumstances that warranted an extension of time. The court also found that the delay in bringing the proceedings did not prejudice the defendant.

The court ordered that the defendant's application to strike out the plaintiff's claim be dismissed and that the plaintiff's claim be allowed to proceed. The court also ordered that the defendant pay the plaintiff's costs of the application.

Orders