Ervin v Brisbane North Regional Health Authority

IN THE COURT OF APPEAL	[1993] QCA 548
SUPREME COURT OF QUEENSLAND

Appeal No. 232 of 1992

Brisbane

Before

The President

[Ervin v. Brisbane North Regional Health Authority]

BETWEEN:

BETTY ERVIN

Applicant

AND:

BRISBANE NORTH REGIONAL HEALTH AUTHORITY and

WILLIAM THOMAS SUGARS

Respondents

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 17/12/93

This is an application for leave to appeal against an order of a District Court Judge refusing an application for an extension of the limitation period within which to bring an action for damages against a medical practitioner for negligence. His Honour held that no material fact of a decisive character came within the means of knowledge of the applicant after 11 February 1992 so that the Plaint was filed out of time.

The matter was argued before me on the basis that it would probably be decided by the judgment of this Court in Haslam v. Queensland Alumina Limited (C.A. No. 162 of 1993; unreported judgment delivered 15 December 1993). While strictly it does not do so, Haslam strongly suggests that, since a refusal to extend time such an order has the practical effect of finally determining the rights of the parties, there is a predisposition in such cases to finding that there is an important question of law or justice involved as required by sub-s. 92(2) of the District Courts Act 1967.

In this case, counsel for the applicant identified the following question as arising for decision; namely, whether a potential plaintiff is entitled in law to wait until he or she has some evidence that negligence has occurred before commencing proceedings or is he or she required to commence proceedings as soon as there is a mere possibility that negligence has occurred.

The material before me does not clearly establish that there is such a question of law necessarily involved in these proceedings but I am prepared to proceed on the assumption that that is so.

Accordingly, consistently I think with Haslam v. Queensland Alumina Limited, I grant the extension of time requested and the application for leave to appeal. The costs of this application are reserved to the Court hearing the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 232 of 1992

Brisbane
[Ervin v. Brisbane North Regional Health Authority]

BETWEEN:

BETTY ERVIN

Applicant

AND:

BRISBANE NORTH REGIONAL HEALTH AUTHORITY and

WILLIAM THOMAS SUGARS

Respondents

The President

Judgment delivered 17/12/93
Reasons for Judgment by the President

APPLICATION FOR LEAVE TO APEAL GRANTED. EXTEND THE TIME WITHIN WHICH TO FILE A NOTICE OF APPEAL TO THE DATE THE NOTICE OF APPEAL IS FILED. THE COSTS OF THIS APPLICATION ARE RESERVED TO THE COURT HEARING THE APPEAL.

CATCHWORDS: APPEAL AND NEW TRIAL - Inferior Courts - appeal from refusal to extend limitation period - whether important question of law or justice - s. 92(2) District Court Act.

Counsel:	R Alldridge for the applicant R Douglas for the respondents
Solicitors:	Bowdens for the applicant Corrs Chambers Westgarth for the respondent

Hearing Date: 5 November 1993

CaseChat Overview and Summary

Betty Ervin applied for leave to appeal against a decision by a District Court judge that her claim for damages for negligence against the Brisbane North Regional Health Authority and William Thomas Sugars was filed out of time. The Court of Appeal was required to determine whether the District Court judge erred in finding that no material fact of decisive character came within Ervin's means of knowledge after 11 February 1992, and whether the refusal to extend the limitation period constituted an important question of law or justice, as required by sub-section 92(2) of the District Courts Act 1967.

The Court of Appeal held that, although the case did not strictly fall within the principles established by the Court in Haslam v. Queensland Alumina Limited, it was guided by the judgment in that case. The Court found that since the refusal to extend time had the practical effect of finally determining the rights of the parties, there was a predisposition in such cases to finding that an important question of law or justice was involved. The Court further noted that counsel for Ervin identified the question of whether a potential plaintiff is entitled to wait until they have evidence that negligence has occurred before commencing proceedings or if they are required to commence proceedings as soon as there is a mere possibility of negligence. Although the material before the Court did not clearly establish that such a question of law was necessarily involved in these proceedings, the Court proceeded on the assumption that it was.

Accordingly, the Court of Appeal granted the application for leave to appeal and extended the time within which to file a notice of appeal to the date the notice of appeal is filed. The costs of the application were reserved to the Court hearing the appeal. This decision provides guidance for potential plaintiffs in medical negligence cases regarding the timing of commencing proceedings and the importance of obtaining evidence of negligence before doing so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established