Damman v Peninsula Health - [2012] VSC 572

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURY LIST

SCI 2010 06111

DANIELLE ELIZABETH DAMMAN	Plaintiff
v
PENINSULA HEALTH (ABN 52 892 860 159)	Defendant

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	9 and 10 October 2012
DATE OF JUDGMENT:	23 November 2012
CASE MAY BE CITED AS:	Damman v Peninsula Health
MEDIUM NEUTRAL CITATION:	[2012] VSC 572

---

COMMON LAW – Application for an extension of limitation period – Section 27K of the Limitation of Actions Act 1958 – Allegations of sexual assault – Key witness deceased – Defendant suffered substantial prejudice – Plaintiff’s cause of action against former solicitors relevant consideration – Tsiadis v Patterson (2001) 4 VR 114 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Ingram Ms K. Gladman	Clark Toop & Taylor
For the Defendant	Mr J. Noonan Mr S. Gladman	Lander & Rogers Lawyers

HIS HONOUR:

Background

On 27 March 2007, the plaintiff was admitted to the psychiatric unit at Frankston Hospital (‘the hospital’). The defendant is responsible for the conduct of the hospital. From 28 March 2007 the plaintiff was subject to an involuntary treatment order made pursuant to s 12AA of the Mental Health Act 1986 (Vic). At the time of her admission she was suffering from a borderline personality disorder and was considered to be at risk of self harm.

The plaintiff alleges that while at the hospital a male patient (AB) in the psychiatric unit sexually assaulted her on three separate occasions. She claims that the assaults occurred by reason of the defendant’s negligence in the detention and supervision of the plaintiff in a safe and secure environment. The plaintiff alleges that by reason of the defendant’s negligence she has suffered:

·     injury in the form of aggravation of pre-existing psychiatric conditions and major depressive disorder;
·     special damage (which is yet to be particularised); and
·     loss of earnings and loss of earning capacity.

The defendant denies liability and alleges that any physical interaction between the plaintiff and AB was consensual and did not constitute an assault. Further, the defendant claims that the plaintiff is:

· statute barred by reason of the provisions of Part IIA of the Limitation of Actions Act 1958 (Vic) (‘the Limitation of Actions Act’); and
· precluded from claiming damages for non-economic loss by reason of the operation of s 28LE of the Wrongs Act 1958 (Vic) (‘the Wrongs Act’) as she has not suffered a ‘significant injury’ as defined by s 28LF of the Wrongs Act.
The proceedings

The plaintiff issued a generally endorsed writ on 11 November 2010. On 17 June 2011, the plaintiff filed a statement of claim.

By summons filed on 12 January 2012, the plaintiff seeks the following orders:

1.An order granting the plaintiff an extension of the date by which to bring proceedings to 1 November 2010, pursuant to s 27K of the Limitation of Actions Act.
2.An order striking out paragraphs 11…

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.

Keep reading for free

Create a free CaseChat account to read Damman v Peninsula Health and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] VSC 572
Decision Date: 23 November 2012

CaseChat Overview and Summary

Damman v Peninsula Health was an application brought by the plaintiff seeking an extension of the limitation period for her action against the defendant. The plaintiff alleged sexual assault by a doctor employed by the defendant, Peninsula Health, and sought damages. The limitation period had expired, and the plaintiff was seeking an extension under section 27K of the Limitation of Actions Act 1958.

The court had to decide whether the plaintiff could establish the grounds for an extension of the limitation period, considering the circumstances of the case. This involved assessing whether the plaintiff had made a timely complaint, the effect of the deceased status of the key witness, and whether the defendant had suffered substantial prejudice. The court also considered the plaintiff’s cause of action against her former solicitors as relevant to the determination.

The court found that the plaintiff had not made a timely complaint, which was a significant factor against granting an extension. The key witness had died, which presented a challenge to the plaintiff’s case. Additionally, the defendant had suffered substantial prejudice due to the delay, and the plaintiff’s cause of action against her former solicitors was relevant. Applying the principles from Tsiadis v Patterson, the court concluded that the plaintiff had not satisfied the requirements for an extension of the limitation period.

The court dismissed the plaintiff's application, finding that the plaintiff had not demonstrated sufficient grounds for extending the limitation period. The court held that the delay and prejudice to the defendant, along with the other factors, outweighed the plaintiff’s circumstances.

Orders