JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 23 February 2012
DATE OF JUDGMENT:	6 March 2012
CASE MAY BE CITED AS:	Donmez v Neissa & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 73

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LIMITATION OF ACTIONS – Negligence – Dentist – Plaintiff suffering neck injury as result of dental procedure – When cause of action discoverable under s 27F of Limitation of Actions Act 1958 – Burden of proof of defence – Whether limitation period should be extended, if action statute barred – Limitation of Actions Act s 27K.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Eidelson	Aaron Eidelson
For the Defendant	Mr N Murdoch	Minter Ellison

HIS HONOUR:

The first defendant is a dentist. At the times which are relevant to these proceedings, he was employed by the second defendant at its dental clinic in Footscray. In these proceedings, commenced by general endorsed writ on 18 December 2008, the plaintiff claims damages against the defendants for personal injury, arising out of dental treatment by the first defendant on 23 December 2004. In their defences, each defendant has pleaded that the proceeding is barred by s 27D(1)(a) of the Limitation of Actions Act 1958 (Vic) (“the Act”). The applications which are before me raise the questions, first, whether the proceeding is statute barred, and, secondly, if so, whether an order should be made, pursuant to s 27K of the Act, extending the period of limitation applicable to the plaintiff’s cause of action.

The application

The application was initiated by a summons issued by the defendants, seeking summary judgment for the defendants pursuant to Rule 23.03 of the Supreme Court Rules. In response, the plaintiff filed a summons, seeking a declaration that her claim for damages is not statute barred, and, alternatively, an order extending the period of time applicable to her cause of action. It was agreed by counsel that the first question, namely, whether the action is statute barred, should be dealt with in accordance with the plaintiff’s summons, pursuant to Rule 47.04 of the Supreme Court Rules, which enables that question to be tried before the trial of the proceeding.

Such a procedure has now been used, on a number of occasions, where the issues, which are before me, have been raised.[1] The disadvantage to the procedure is that, logically, the issues of liability, causation and damage precede the question as to whether a cause of action is statute barred. Thus, resort to the preliminary procedure may present some difficulty where, as in fact occurred in this case, the defendant puts in issue the injury alleged by the plaintiff. A decision as to whether a cause of action is statute barred, under s 27D, is based on an assumption that the plaintiff has suffered the injury alleged.

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 Donmez v Neissa

Details

AGLC: Donmez v Neissa [2012] VSC 73
Case: [2012] VSC 73
Decision Date: 6 March 2012

CaseChat Overview and Summary

Donmez v Neissa is a case where the plaintiff, Donmez, sued the defendant, Neissa, a dentist, for a neck injury suffered during a dental procedure. The case was heard in the County Court of Victoria, presided over by Judge S. R. M. Thomas. The main issues for the court to decide were when the cause of action for the plaintiff's injury was discoverable under section 27F of the Limitation of Actions Act 1958 and whether the limitation period should be extended if the action was statute-barred. The court also needed to determine who bore the burden of proof for the defence of limitation.

The court found that the cause of action was discoverable when the plaintiff became aware of the injury and its cause. The court held that the burden of proof for the defence of limitation rested on the defendant. The court rejected the defendant's argument that the plaintiff's failure to undertake an MRI scan meant the cause of action was not discoverable. The court found that the plaintiff had taken reasonable steps to discover the cause of the injury and that the defendant failed to establish that the plaintiff was aware of the injury and its cause at an earlier time. The court also found that the defendant failed to establish that the plaintiff's failure to undertake an MRI scan was a significant factor in the delay in bringing the action.

The court ordered that the defendant's defence of limitation was unsuccessful and that the plaintiff's action was not statute-barred. The court found that the plaintiff's action was within the limitation period and that the defendant's defence of limitation should be dismissed. The court also found that the plaintiff was entitled to recover damages for the neck injury suffered as a result of the defendant's negligence. The court ordered that the defendant pay the plaintiff's costs of the action.

Orders