Eldridge v Molodysky - [2002] NSWSC 93

CITATION: Eldridge v Molodysky [2002] NSWSC 93

CURRENT JURISDICTION: Common Law
Professional Negligence List

FILE NUMBER(S): SC 20696 of 2000

HEARING DATE(S): 11 February 2002

JUDGMENT DATE: 26 February 2002

PARTIES :

Dinah Eldridge (Plaintiff)
v
Eugine Molodysky (Defendant)

JUDGMENT OF: Master Malpass

COUNSEL : Mr M Williams (Plaintiff)
Mr D Davies SC (Defendant)

SOLICITORS: Charlton Shearman (Plaintiff)
Tress Cocks & Maddox (Defendant)

CATCHWORDS: Extension of limitation period - second application - largely same evidence - additional material could have been adduced on first application - approach of the court.

LEGISLATION CITED: Limitation Act 1969, s 60G, 60I.

CASES CITED: Nominal Defendant v Manning 50 NSWLR 139.

DECISION: See paragraph 28.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE List

Master Malpass

Tuesday 26 February 2002

20696 of 2000 Dinah Eldridge v Eugine Molodysky
JUDGMENT

1 Master Malpass: The defendant has been a general practitioner since about 1980. For about 18 years, from about 1980, the plaintiff was his patient. There were many consultations.

2 She saw him in relation to inter alia persistent aching in her right arm and tingling sensations in the fingers of her right hand. It was not until about 1996, that she was diagnosed as having a massive schwannoma tumour (neurofibroma). In 1996 and 1997, she underwent surgery. It is her claim that she has been left with inter alia Horner’s Syndrome, loss of function and a loss of career.

3 It is said that in November 2000 she became aware of the causal nexus between her problems and negligence on the part of the defendant. She brought these proceedings to recover damages. An application was made for an extension of the relevant limitation period.

4 The application came before Master Harrison. The hearing took place on 18 June 2001. Judgment was delivered on 3 July 2001.

5 The relief was sought pursuant to s 60G of the Limitation Act 1969 (the Act). Master Harrison found that the threshold requirements had been satisfied. However, she did not proceed to make an order. The final paragraph of her judgment is in the following terms:-

“The plaintiff submitted that the defendant finds himself in the position that doctors often do, in that they have no specific recall of events and are reliant upon their notes and their usual practice in giving evidence. However, as the plaintiff seeks to bring a claim outside the limitation period, the situation is different because prejudice has to be considered. It is my view that the lack of independent recollection of the defendant, as to the consultations and the content of conversations he had with the plaintiff and the missing radiological scan taken in 1983, means that he will suffer significant prejudice and will not be able to have a fair trial due to the delay. The application for an extension of time is refused. The amended notice of motion is dismissed. The plaintiff has requested that the issue of costs be reserved for argument.”

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 Eldridge v Molodysky

Details

AGLC: Eldridge v Molodysky [2002] NSWSC 93
Case: [2002] NSWSC 93
Decision Date: 26 February 2002

CaseChat Overview and Summary

The case of Eldridge v Molodysky involved a dispute between two parties, Eldridge and Molodysky, regarding the extension of a limitation period for bringing a legal claim. The matter was brought before the court, which was tasked with determining whether the applicant's second application for an extension of time should be granted. The first application had already been considered, and the applicant was now seeking a further extension to bring the claim, relying on largely the same evidence as in the first application. However, the court noted that additional material could have been adduced in the first application.

The key legal issues before the court were whether the second application for an extension of time should be granted, considering the largely similar evidence presented in the first application, and whether the applicant could have provided additional material during the first application. The court had to balance the applicant's need for an extension against the principle of finality and the importance of adhering to statutory time limits.

The court examined the applicant's reasons for the second application and the potential additional material that could have been presented in the first application. It found that the applicant had not adequately explained why the additional material was not included in the first application. The court also considered the potential prejudice to the respondent if the extension was granted. Ultimately, the court held that the second application for an extension of time should not be granted, as the applicant had not demonstrated sufficient justification for the delay and could have presented additional material in the first application.

The court's decision was that the second application for an extension of time was dismissed. The court emphasised the importance of adhering to statutory time limits and the need for applicants to adequately justify any delays in bringing a claim. The court also highlighted the importance of providing all relevant material in the first application to ensure a fair and efficient resolution of the dispute.

Orders