Eastbury v Genea Genetics - [2014] NSWSC 1793

Supreme Court

New South Wales

Medium Neutral Citation: Eastbury v Genea Genetics [2014] NSWSC 1793
Hearing dates: 3 December 2014
Decision date: 17 December 2014
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) The limitation period for the causes of action pleaded in the Statement of Claim filed 11 March 2014 be extended to 11 March 2014.
(2) On the costs follow the event rule, costs of the application would ordinarily be awarded in favour of the plaintiffs against the defendant. If the defendant wishes to argue against the making of such an order, a period of seven (7) days is allowed to apply in that respect.

Catchwords: PERSONAL INJURY - application for an extension of time pursuant to s 60G of the Limitation Act 1969 (NSW) - claim arises from the diagnosis of the plaintiffs' sons as having a full mutation consistent with a diagnoses of Fragile X Syndrome - plaintiffs claim damages for mental harm and claim the defendant laboratory breached its duty of care in failing to test the first plaintiff's carrier status for Fragile X Syndrome - cause of action arguably accrued on the date of birth of each of the plaintiffs' two sons - application for an extension of time on the basis that after becoming aware of their sons' conditions the plaintiffs acted with reasonable expedition and that the extent of any damages awarded is likely to be significant - extension of time granted
Legislation Cited: Limitation Act 1969
Uniform Civil Procedure Rules 2005
Cases Cited: Bell v SPC Ltd [1989] VR 170
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cartledge v E Jopling and Sons Limited [1963] AC 758
Cowie v State Electivity Commission of Victoria [1964] VR 788
McIntosh v Southern Meats Pty Ltd (1997) Aust Torts Reports 81-424
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Category: Interlocutory applications
Parties: Leighee Eastbury (First Plaintiff)
Philip Eastbury (Second Plaintiff)
Genea Genetics (Defendant)
Representation: Counsel:
J Anderson (Plaintiffs)
D Lloyd (Defendant)
Solicitors:
Catherine Henry Partners (Plaintiffs)
Kennedys Lawyers (Defendant)

File Number(s): 2014/74655

Judgment

The Proceedings

The first and second plaintiffs are respectively the father and mother of two children, Hayden Eastbury and Jacob Eastbury. Hayden was born on 30 August 2008. Jacob was born on 12 March 2011.

The first and second plaintiffs commenced proceedings by way of Statement of Claim filed on 11 March 2014 in the Professional Negligence List in respect of genetic screening performed by the defendant, Genea Genetics (formerly known, inter alia, as Sydney Genetics Pty Ltd), in 1999 ("Genea").

Hayden Eastbury was diagnosed in or about May 2012 by a paediatrician, Dr Lynn Banna, with Autism and Global Development Delay. Subsequent test in July 2012 revealed that Hayden had a full mutation sized expansion of "Fragile X", consistent with a diagnosis of Fragile X Syndrome.

In or about August 2012, Jacob underwent the same tests and received the same diagnosis.

Both children suffer from significant speech and language delays, behavioural and language difficulties…

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: [2014] NSWSC 1793
Decision Date: 17 December 2014

CaseChat Overview and Summary

The plaintiffs in the case of Eastbury v Genea Genetics sought an extension of time for filing their claim against the defendant, Genea Genetics, for alleged breaches of duty of care relating to the diagnosis of their two sons with Fragile X Syndrome. The plaintiffs argued that the defendant laboratory failed to test the carrier status of the first plaintiff, which led to the birth of their sons with the condition. The dispute was brought before the Supreme Court of New South Wales.

The primary legal issue the court had to decide was whether the plaintiffs had acted with reasonable expedition after becoming aware of their sons' conditions and whether the extent of any damages awarded would likely be significant. The court needed to determine if the plaintiffs' delay in filing the claim could be justified under section 60G of the Limitation Act 1969 (NSW). The plaintiffs contended that their delay was reasonable given the complexities of their situation and the potential for substantial damages.

The court found that the plaintiffs had acted with reasonable expedition upon learning of their sons' conditions and that the potential for significant damages warranted an extension of time. The court acknowledged the complexity of the situation and the importance of the potential compensation in its decision. The extension of time was granted, allowing the plaintiffs to proceed with their claim against the defendant for damages resulting from the alleged breach of duty of care.

The final orders of the court included granting the plaintiffs an extension of time to file their claim against Genea Genetics, thereby allowing them to pursue their action for damages related to the diagnosis of their sons' Fragile X Syndrome. The specifics of the damages and the further proceedings of the case were to be determined in subsequent litigation.

Orders