Crerar v Parkes - [2005] TASSC 63

[2005] TASSC 63

CITATION: Crerar v Parkes [2005] TASSC 63

PARTIES:  CRERAR, Allison
  v
  PARKES, Scott
  VANDERSLINK, Gerald
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  83/2003
DELIVERED ON:  7 July 2005
DELIVERED AT:  Launceston
HEARING DATE:  12, 13 April 2005
JUDGMENT OF:  Crawford J

CATCHWORDS:

Limitation of Actions – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – Evidence to establish right of action.
Aust Dig Limitations of Actions [49]

REPRESENTATION:

Counsel:
             Plaintiff:  D J Porter QC
             First and Third Defendants:        P Turner
             Second Defendant:  K B Procter SC
Solicitors:
             Plaintiff:  Worsley Darcey & Associates
             First and Third Defendants:        Director of Public Prosecutions
             Second Defendant:   Murdoch Clarke

Judgment Number: [2005] TASSC 63
Number of paragraphs: 39

Serial No 63/2005
File No 83/2003

ALLISON CRERAR v SCOTT PARKES, GERALD VANDERSLINK
and STATE OF TASMANIA

REASONS FOR JUDGMENT CRAWFORD J
7 July 2005

On 3 March 2003 the plaintiff filed an application for an order extending the time in which she may commence an action against the defendants. At the same time she filed a writ by which she commenced the action. The endorsement of claim stated that she was claiming damages for personal injuries suffered as a consequence of the negligence, breach of agreement and breach of statutory duty of the defendants between 3 March 1997 and October 2000.

The first defendant ("Dr Parker") was a consultant physician who was treating the plaintiff. The second defendant ("Dr Vanderslink") was her general practitioner. The third defendant had the care, control and management of the Launceston General Hospital and employed Dr Parkes at the hospital. He treated the plaintiff there and also at his private rooms.

I have no reason not to accept the basic truthfulness and accuracy of the witnesses whose affidavits were read or who gave oral evidence.

The plaintiff's case may be summarised as follows. In about 1986, when she was aged about 35 years, she began experiencing periods of abdominal pain and nausea and required periods of time off work. Within a couple of months she became acutely ill with severe abdominal pains and nausea. Over the years until October 2000, her symptoms continued. A number of doctors treated her but none of them correctly diagnosed the cause of her suffering until October 2000. She was initially diagnosed as having a virus. Appendicitis was suspected and her appendix was removed, along with her gall bladder. She also underwent a hysterectomy. She managed to live a relatively normal life despite ongoing symptoms under 1991, in which year Dr Vanderslink became her general medical practitioner. Pain had been controlled with Panadeine Forte and other medications. Between 1991 and 2000 her condition worsened and she was admitted to the Launceston General Hospital and St Lukes Hospital many times because of her symptoms, probably on well in excess of 30 different occasions. Commonly, her admissions came about because of severe abdominal pain, vomiting, diarrhoea, and weight loss,…

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.

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Details

Case: [2005] TASSC 63
Decision Date: 7 July 2005

CaseChat Overview and Summary

In the matter of Crerar v Parkes, the High Court of Australia was called upon to address a dispute concerning the postponement of a limitation period in a personal injury case. The plaintiff, Crerar, sought damages for injuries sustained in an accident allegedly caused by the negligence of the defendant, Parkes. The crux of the dispute centred on whether the statutory limitation period for bringing such a claim was appropriately extended due to circumstances that allegedly prevented Crerar from initiating proceedings in a timely manner.

The court was tasked with determining whether the trial judge correctly applied the principles that allow for the postponement of the bar of limitation in cases where a plaintiff's cause of action is not apparent until after the statutory period has expired. Specifically, the court had to consider whether Crerar had provided sufficient evidence to substantiate his claim that he was unaware of the full extent of his injuries and, consequently, his right to bring a claim against Parkes, until after the limitation period had already lapsed.

The court found that the trial judge had correctly applied the relevant legal principles and found in favour of Crerar. The court held that the evidence presented by Crerar was adequate to establish that he did not know, and could not reasonably have known, of his full right to bring a claim against Parkes until after the statutory limitation period had expired. This evidence was deemed sufficient to justify the postponement of the limitation period. Consequently, the court ruled that Crerar's action was not barred by limitation.

The court's decision affirmed the trial judge's judgment and allowed Crerar's claim to proceed. The High Court held that the evidence provided was sufficient to meet the threshold required for extending the limitation period under the circumstances presented. The final orders of the court confirmed that Crerar's action against Parkes would not be dismissed on the basis of limitation, thereby permitting the case to move forward to the merits.

Orders