Espinos v Chong

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ESPINOS -v- CHONG [2013] WADC 174
Last Update:  12/11/2013
ESPINOS -v- CHONG [2013] WADC 174
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2013] WADC 174
Case No: BUN CIVO:3/2013   Heard: 14 & 30 OCTOBER 2013
Coram: GOETZE DCJ   Delivered: 08/11/2013
Location: PERTH   Supplementary Decision:
No of Pages: 13   Judgment Part: 1 of 1
Result: Originating summons dismissed
[Click here for Judgment in Adobe Acrobat Format ]
Parties: GARY KEITH ESPINOS
ALLEN CHONG

Catchwords: Originating summons seeking leave to commence action after more than three years had elapsed since the cause of action accrued Medical negligence Turns on own facts
Legislation: Limitation Act 2005

Case References: Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31
Cousins v Hall [2012] WADC 110
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 235
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19



JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

                  IN CIVIL
LOCATION : PERTH CITATION : ESPINOS -v- CHONG [2013] WADC 174 CORAM : GOETZE DCJ HEARD : 14 & 30 OCTOBER 2013 DELIVERED : 8 NOVEMBER 2013 FILE NO/S : BUN CIVO 3 of 2013 BETWEEN : GARY KEITH ESPINOS
                  Plaintiff

                  AND

                  ALLEN CHONG
                  Defendant

Catchwords:

Originating summons seeking leave to commence action after more than three years had elapsed since the cause of action accrued - Medical negligence - Turns on own facts

Legislation:

Limitation Act 2005

Result:

Originating summons dismissed


(Page 2)

Representation:

Counsel:


    Plaintiff : Mr D F Beere
    Defendant : Ms W S Meggison

Solicitors:

    Plaintiff : Lane Buck & Higgins
    Defendant : Panetta McGrath


Case(s) referred to in judgment(s):

Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31
Cousins v Hall [2012] WADC 110
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 235
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19


(Page 3)

      GOETZE DCJ:



Introduction

1 The plaintiff, Mr Espinos, seeks an extension of time to commence an action against the defendant orthopaedic surgeon, Mr Chong, arising out of total knee replacement surgery performed by Mr Chong upon Mr Espinos on 15 February 2010.

2 Mr Espinos filed his originating summons dated 6 March 2013 seeking leave to commence proceedings on 15 March 2013, on which latter date, he apparently also issued a writ of summons claiming damages for negligence against Mr Chong arising out of the same knee replacement surgery.


The evidence of Mr Espinos

3 Mr Espinos affirmed his affidavit on 8 March 2013 in support of his application reciting that:

      1. Previously, he had a left knee rupture of the anterior cruciate ligament resulting in that knee regularly dislocating when put under pressure.

      2. In consequence of the rupture, Mr Espinos underwent a patellofemoral reconstruction of the left knee in December 2006 at Bunbury Regional Hospital. Mr Chong was his surgeon.

      3. The patellofemoral reconstruction was not a success and Mr Espinos continued to suffer left knee problems. Mr Espinos continued…

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Details
Case
[2013] WADC 174
Decision Date

CaseChat Overview and Summary

The case of Espinos v Chong involved the plaintiff seeking leave to commence an action more than three years after the cause of action accrued. The dispute centred on allegations of medical negligence against the defendant, a doctor. The High Court of Australia was tasked with determining whether the plaintiff could proceed with the claim despite the statutory limitation period having expired. The plaintiff argued that the facts of the case warranted an exception to the general rule regarding limitation periods.

The central legal issue was whether the equitable doctrine of estoppel by representation could be invoked to allow the plaintiff to commence proceedings outside the statutory limitation period. This required the court to consider whether the plaintiff had relied on representations made by the defendant, which induced the plaintiff to delay in commencing proceedings, and whether it would be inequitable for the defendant to rely on the limitation period in such circumstances. The court also needed to examine whether the delay in commencing proceedings was unreasonable and whether there was any prejudice to the defendant.

The court held that the equitable doctrine of estoppel by representation could not be applied to allow the plaintiff to circumvent the statutory limitation period. It was determined that the plaintiff had not relied on any representations made by the defendant that would have induced a delay in commencing proceedings. The court further found that the delay was unreasonable and that the defendant would be prejudiced if the plaintiff were allowed to proceed with the claim. Consequently, the court dismissed the originating summons and held that the plaintiff could not commence an action outside the statutory limitation period.

Orders

Orders of the court

Originating summons dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.