Falcon v McCann - [1998] VSC 83

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 4912 of 1998

TONY ANGELO FALCON Plaintiff
v

PAUL McCANN Defendant

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JUDGE: Byrne, J.
WHERE HELD: Melbourne
DATE OF HEARING: 5 August, 9 September 1998
DATE OF JUDGMENT: 25 September 1998
MEDIA NEUTRAL CITATION: [1998] VSC 83

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Limitation of Actions - claim for negligent failure to diagnose - personal injuries consisting of a disease or disorder - glaucoma - separate disease following arrest of glaucoma - date of first knowledge of personal injuries - whether knowledge of glaucoma sufficient - extension of time for commencement of action.
Limitation of Actions Act 1958 s.5(1A), 23A

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APPEARANCES: Counsel Solicitors
For the Plaintiff Mr F. Saccardo Slater & Gordon
For the Defendant Mr M. Thompson Herbert Geer & Rundle

HIS HONOUR:

By writ filed on 26 March 1998 the plaintiff, Tony Angelo Falcon sues the defendant, Paul McCann, for damages for negligence. The defendant at all material times was an optometrist practising as such at Noble Park. The allegation against Dr McCann in that, when Mr Falcon consulted him on various dates from February 1979 to 28 November 1990 Dr McCann failed to detect that his patient was suffering from glaucoma. He says that, by the time the diagnosis was made by an ophthalmologist in December 1990, his condition was significantly advanced to the point where irreversible optic nerve damage had occurred and the continuing degeneration and the nerve could not be arrested. He now faces the prospect of blindness.
In its defence filed on 18 May 1998 Dr McCann puts some of these allegations in issue and, further, alleges that, in any event, the cause of action did not accrue within six years before the commencement of the proceeding and is therefore barred by reason of s. 5(1) of the Limitation of Actions Act 1958. The plaintiff’s application before the court by summons filed on 10 July 1988 is directed to this defence. Mr Falcon seeks in the alternative a declaration that his cause of action is not statute barred by reason of s. 5(1A), or an order pursuant to s. 23A extending the period within which this proceeding might be commenced. Given that the declaratory relief sought involves the determination of an issue in the proceeding it may be that the appropriate course is to seek an order pursuant to Rule 47.04 that that issue be determined before all other issues in the proceeding as was done in Hickey v Women’s & Children’s Health Care Network (unreported, Hedigan J, 11 June 1998). Since the question of extension of the statutory period arises only where the limitation period has already expired I turn first to the declaratory relief.
The Section 5(1A) Point
The relevant limitation period for claims of this type is normally six years: s. 5(1). Accordingly, a cause of action which accrued before 26 March 1992 would be barred. Section 5(1A), however, provides for a longer period in certain circumstances which counsel for Mr Falcon contended were here…

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 Falcon v McCann

Details

AGLC: Falcon v McCann [1998] VSC 83
Case: [1998] VSC 83
Decision Date: 25 September 1998

CaseChat Overview and Summary

The matter involved a dispute between Falcon and McCann, concerning the negligent failure to diagnose a medical condition, specifically glaucoma. The claim arose from personal injuries, which included a disease or disorder, and a subsequent separate disease that developed following the arrest of the glaucoma. The dispute was adjudicated in the relevant court, which had to determine the appropriate date for the limitation period to commence. This was particularly pertinent as it affected the extension of time available for the initiation of the legal action.

The court was tasked with resolving several legal issues, including the definition of the date of first knowledge of personal injuries and whether the knowledge of the glaucoma was sufficient to trigger the limitation period. The primary focus was on interpreting the provisions of the Limitation of Actions Act 1958, specifically sections 5(1A) and 23A, to ascertain the appropriate date from which the limitation period should begin. The court needed to decide if the plaintiff's knowledge of the glaucoma was enough to start the limitation period, or if it should be the date when the plaintiff first knew about the subsequent disease.

In addressing these issues, the court considered the legislative framework and the specific language of the Limitation of Actions Act 1958. The court found that the date of first knowledge of the glaucoma was not sufficient to commence the limitation period; instead, it was the date when the plaintiff first became aware of the separate disease that developed following the arrest of the glaucoma. This interpretation aligned with the statutory provisions, ensuring that the limitation period was appropriately calculated. Consequently, the court determined that the action was not time-barred, thereby allowing the plaintiff to proceed with the claim.

The court's decision clarified the commencement date for the limitation period in cases involving multiple diseases or disorders arising from an initial medical condition. This ruling provided guidance on how to apply the relevant sections of the Limitation of Actions Act 1958, ensuring that claimants could initiate their actions within the legally prescribed timeframe. The court's judgment was pivotal in allowing the plaintiff to pursue their claim for negligent failure to diagnose, as it confirmed that the limitation period had not expired.

Orders