Cook v Endovasive P/L - [2004] NSWSC 876

CITATION: Cook v Endovasive P/L & Ors [2004] NSWSC 876

HEARING DATE(S): 6 September 2004

JUDGMENT DATE:
23 September 2004

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The plantiff be granted an extension of the limitation period up to and including 23 September 2004 as against the second and third defendants; (2) The plaintiff is to pay the second and third defendants' costs as agreed or assessed.

CATCHWORDS: Extension of time to commence proceedings - ss 60C & E Limitation Act 1969 (NSW)

LEGISLATION CITED: Limitation Act 1969 (NSW) ss 60 C & E
Limitation of Action Act 1974 (Qld) - s 11

CASES CITED: BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported 7 March 1997)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1
Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195
Holt v Wynter (2000) 49 NWLR 128
McLean v Sydney Water Corporation [2001] NSWCA 122
Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315
Murray v Whiting & Ors [2002] QSC 257
Wintle v Conayust (Vic) Pty Ltd & Ors [1989] VR 951

PARTIES :

Deneta Cook
(Plaintiff)
Endovasive Pty Limited
(First Defendant)
Dr Niven
(Second Defendant)
Wentworth Area Health Service
(Third Defendant)

FILE NUMBER(S): SC 20119/2002

COUNSEL:
Mr R Page
(Plaintiff)
Mr S Woods
(Second & Third Defendants)

SOLICITORS:
Mr R Glover,
Glover & Glover
(Plaintiff)
Ms R Simpson,
Frances Allpress
(Second & Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 23 SEPTEMBER 2004

20119/2002 - DENETA COOK v ENDOVASIVE PTY
LIMITED & 3 ORS
JUDGMENT (Extension of time to commence proceedings – ss 60C & E Limitation Act

1969 (NSW))

1 MASTER: By notice of motion filed 17 July 2002 the plaintiff seeks an order extending the time within which to commence proceedings against the defendants pursuant to ss 60C and 60G of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on her affidavit sworn 23 August 2002, the affidavit of Terence David Honan sworn 17 July 2002 and the affidavits of Richard John Glover sworn 22 October 2003, 22 December 2003 and 2 July 2004. The second and third defendants are the defendants remaining in these proceedings and relied upon the affidavit of Robyn Maree Simpson sworn 2 September 2003.

2 The second defendant is Dr Niven the obstetrician who performed the tubal ligation. The third defendant is the Wentworth Area Health Service. Proceedings have been settled as against the first and fourth defendants. On 20 February 2002 the Supreme Court of Queensland cross-vested these proceedings to this Court.

3 The plaintiff alleges that she was given negligent advice in relation to sterilisation and the tubal ligation was performed in a negligent manner.

4 For the purposes of this application I have taken the plaintiff’s evidence at its highest. The plaintiff was cross-examined and I accept her evidence. The plaintiff was born on 28 August 1969, is…

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 Cook v Endovasive P/L

Details

AGLC: Cook v Endovasive P/L [2004] NSWSC 876
Case: [2004] NSWSC 876
Decision Date: 23 September 2004

CaseChat Overview and Summary

The matter before the court involved a claim by the plaintiff, Cook, against the defendant, Endovasive P/L, for damages resulting from alleged professional negligence. The dispute arose from a medical procedure performed by Endovasive P/L, which Cook claimed was substandard and caused significant harm. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's application for an extension of time to commence proceedings should be granted under sections 60C and 60E of the Limitation Act 1969 (NSW). The plaintiff argued that there were exceptional circumstances that prevented timely initiation of the proceedings, warranting an extension beyond the standard limitation period. The defendant contested the application, asserting that the plaintiff had not demonstrated sufficient grounds for the extension.

In its decision, the court considered the statutory provisions and relevant case law concerning extensions of time under the Limitation Act. The court examined the evidence provided by the plaintiff regarding the circumstances that allegedly prevented timely commencement of the proceedings. It found that the plaintiff had not adequately demonstrated that exceptional circumstances existed that warranted an extension of time. The court concluded that the plaintiff's application was not supported by sufficient evidence and dismissed the application.

The court's final order was that the plaintiff's application for an extension of time to commence proceedings was dismissed, and the claim was statute-barred under the Limitation Act 1969 (NSW).

Orders