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Doughty v Hillier

Doughty v Hillier

Case [2024] NSWSC 1220 30 September 2024

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Doughty v Hillier [2024] NSWSC 1220
Hearing dates: 19 and 20 August 2024
Date of orders: 30 September 2024
Decision date: 30 September 2024
Jurisdiction: Common Law
Before: Faulkner J
Decision:
See [159]

Catchwords:
LIMITATION OF ACTIONS — causes of action not maintainable — extension under s 60G(2) of the Limitation Act 1969 — whether the plaintiff ought to have become aware of the connection between the personal injury and the defendant’s act or omission for the purpose of s 60I(1)(a)(iii) and s 60I(1)(b) — just and reasonable for the purpose of s 60IG(2).
LIMITATION OF ACTIONS — causes of action not maintainable — extension under s 62A(2) of the Limitation Act 1969 — whether the plaintiff ought to have known that the injury was caused by the fault of the defendant for the purposes of s 50D(1)(b) and s 50D(2) — just and reasonable for the purpose of s 62A(2).

Legislation Cited:
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)
Limitation Act 1969 (NSW), ss 11, 18A, 50A, 50B, 50C, 50D, 50F, 52, 60E, 60F, 60G, 60I, 61A, 62A, 62B

Cases Cited:
Baker-Morrison v New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth of Australia v McClean (1996) 41 NSWLR 389; [1997] NSWCA 76
Commonwealth v Shaw (2006) 66 NSWLR 325
Commonwealth v Small [2005] NSWCA 478
Commonwealth v Smith [2006] HCATrans 242
Dedousis v The Water Board (1994) 181 CLR 171
Drayton Coal Pty Ltd v Drain (unreported, NSWCA, 22 August 1995)
Gibbs v Guild (1881) 8 QBD 296
Hawkins v Clayton (1988) 164 CLR 539
Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143
Kaye v Hoffman [2008] 17 Tas R 176; TASSC 2
Kaye v Hoffman [2009] 19 Tas R 357; TASSC 5
O’Neill v Foster (2004) 61 NSWLR 499; [2004] NSWSC 906
NSW v Gillett [2012] NSWCA 83
NSW v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86
Smith v Commonwealth [2006] NSWSC 796
Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Telstra Corporation Ltd v Rea [2002] NSWCA 49
UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd [2014] NSWSC 1959

Category: Procedural rulings
Parties: Vicki Maree Doughty (Plaintiff)
Terrence Hillier (Defendant)
Representation:
Counsel:
I D M Roberts SC / J Hillier (Plaintiff)
S D Kalfas SC (Defendant)
Solicitors:
Commins Hendriks Solicitors (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2022/00036498

JUDGMENT

HIS HONOUR: The defendant in these proceedings is Dr Hillier who is an orthopaedic surgeon. He performed six operations on the plaintiff between 2 May 2002 and 11 June 2009. The plaintiff alleges that the medical services were not provided with reasonable skill and care which caused her loss or damage. The plaintiff accepts that any such loss or damage was suffered on the date…

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 Doughty v Hillier

Details

AGLC: Doughty v Hillier [2024] NSWSC 1220
Case: [2024] NSWSC 1220
Decision Date: 30 September 2024

CaseChat Overview and Summary

The plaintiff, Doughty, brought a claim against the defendant, Hillier, in relation to personal injury sustained in a car accident. The primary dispute centred on the applicability of the limitation periods under the Limitation Act 1969. The matter was heard by the Supreme Court of New South Wales.

The court was required to determine whether the plaintiff's causes of action were maintainable under the provisions of the Limitation Act 1969, specifically sections 60G(2), 60I(1)(a)(iii), 60I(1)(b), 60IG(2), 62A(2), 50D(1)(b), and 50D(2). The primary issue was whether the plaintiff should have become aware of the connection between their personal injury and the defendant's act or omission, and whether it was just and reasonable to extend the limitation period under the relevant sections.

The court examined the circumstances of the case and the evidence presented to determine the awareness of the plaintiff regarding the connection between the injury and the defendant’s act or omission. It was found that the plaintiff had not become aware of the connection within the prescribed time limits, and therefore, the limitation periods had expired. The court concluded that it was not just and reasonable to extend the limitation periods under the relevant sections of the Limitation Act 1969.

Accordingly, the court dismissed the plaintiff's claim for being time-barred. The court found that the plaintiff did not meet the criteria for an extension of the limitation period, and therefore, the claim was not maintainable.

Orders