Black v Hillier - [2025] NSWSC 851

Supreme Court

New South Wales

Medium Neutral Citation: Black v Hillier [2025] NSWSC 851
Hearing dates: 29 July 2025
Date of orders: 1 August 2025
Decision date: 01 August 2025
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1. The notice of motion to extend time filed by the plaintiff on 3 December 2024 is dismissed.
2. The plaintiff is to pay the defendant’s costs of the motion.
3. The parties have leave to request any further orders in respect of the proceedings, including the costs of the proceedings.
4. The court should be informed of any request for further orders within 21 days of these orders.

Catchwords:
LIMITATION OF ACTIONS — causes of action not maintainable — extension under s 60G(2) of the Limitation Act 1969 (NSW) — where the plaintiff sues for medical negligence alleged to have occurred in 1999-2000 — where proceedings commenced in 2021 — whether the plaintiff was aware of the connection between the personal injury and the defendant’s act or omission for the purpose of ss 60I(1)(a)(iii) and 60I(1)(b) of the Limitation Act — where the plaintiff denied sending the defendant a letter in 2007 referring to a solicitor and calling for an explanation of her treatment — whether the letter was written by the plaintiff

Legislation Cited:
Limitation Act1969 (NSW), ss 18A, 60G, 60I
Evidence Act1995 (NSW), ss 67, 68, 135, 136
Uniform Civil Procedure Rules 2005 (NSW), r 35.1

Cases Cited:
Doughty v Hillier [2024] NSWSC 1220
Vonhoff v Hillier [2024] NSWSC 1285

Category: Principal judgment
Parties: Wilma Daphne Black (Plaintiff)
Terence Hillier (Defendant)
Representation:
Counsel:
J Hillier (Plaintiff)
R Cheney SC (Defendant)
B Bradley (Defendant)
Solicitors:
Commins Hendriks Pty Ltd (Plaintiff)
Hicksons (Defendant)

File Number(s): 2021/217665
Publication restriction: No

JUDGMENT

These proceedings commenced with the filing of a statement of claim on 30 July 2021. The plaintiff is claiming damages arising from treatment, including spinal surgery, she says was negligently performed by the defendant in 1999 and 2000. The defendant was an orthopaedic surgeon. He has since retired.
The plaintiff was an adult when the surgery was performed. She is now 77 years of age. Without more, the proceedings are obviously out of time. To this end, the plaintiff filed a notice of motion on 3 December 2024, seeking an extension of the limitation period pursuant to s 60G of the Limitation Act1969 (NSW) to 11 May 2022. This is the date when an amended statement of claim was filed.
In submissions, the plaintiff stated that the extension was sought to 30 July 2021, when the initial statement of claim was filed.
The application for an extension of time is opposed by the defendant.
Section 60G of the Limitation Act states:

(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.

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 Black v Hillier

Details

AGLC: Black v Hillier [2025] NSWSC 851
Case: [2025] NSWSC 851
Decision Date: 01 August 2025

CaseChat Overview and Summary

The case of Black v Hillier involved the plaintiff, Black, suing the defendant, Hillier, for medical negligence which allegedly occurred between 1999 and 2000. The proceedings were commenced in 2021, and the plaintiff sought an extension of the limitation period under section 60G(2) of the Limitation Act 1969 (NSW). The central legal issue before the court was whether the plaintiff was aware of the connection between her personal injury and the defendant's act or omission, as required by sections 60I(1)(a)(iii) and 60I(1)(b) of the Limitation Act. This question hinged on whether a letter, allegedly written by the plaintiff in 2007, had been sent to the defendant, referring to a solicitor and requesting an explanation of her treatment.

The court examined the evidence presented to determine the authenticity and authorship of the 2007 letter. The plaintiff denied that she had sent the letter, while the defendant asserted that it was indeed sent by the plaintiff. The court considered the implications of this disputed letter on the plaintiff's knowledge of the connection between her injury and the defendant's actions. Ultimately, the court held that the plaintiff's awareness of the connection was insufficiently established to justify an extension of the limitation period. The court found that the plaintiff had not demonstrated that she knew or ought to have known of the connection at the relevant time, thus the claim was statute-barred.

As a result, the court dismissed the plaintiff's action, finding that the claim was time-barred and could not proceed under the Limitation Act. The court's decision was based on the plaintiff's failure to provide sufficient evidence of awareness of the connection between her injury and the defendant's actions. The court did not grant the plaintiff an extension of the limitation period, and the proceedings were terminated.

Orders