Fletcher v Besser

Case [2004] NSWCA 132
CITATION: FLETCHER v BESSER & ANOR [2004] NSWCA 132
HEARING DATE(S): 02/04/2004
JUDGMENT DATE:
4 May 2004
JUDGMENT OF: Mason P at 1; Giles JA at 2; Bryson JA at 3
DECISION: [2002] NSWSC 899 affirmed. Appeal dismissed with costs.
CATCHWORDS: LIMITATION OF ACTIONS - Postponement of the Bar-extension of period - cause of action in respect of personal injuries - Limitation Act 1969 s 60G - medical negligence - appellant (plaintiff) severely disabled after neurosurgery in October 1982 - brought proceedings in 1995 against general practitioners - appellant claimed she had been under disability until 1990 and was able to sue until 1996 - in 2000 obtained expert opinions raising basis for alleging negligence in neurosurgery and hospital treatment, obtained leave to join respondents (neurosurgeon and hospital) as additional dependants and applied for extension of time - Studdert J refused extension as fair trial could not be had because of respondents' difficulties in establishing events in detail - decision affirmed - observations at [12] & [13] on lack of significance of difficulties respondents would have faced if proceedings had been brought late in the period available - "just and reasonable" test requires an address to what is now just and reasonable, not to what might have been the respondents' situation in events which did not happen - observation in Smith vNorton [2004] NSWCA 84 at [39] not applicable to s 60G. (D)
LEGISLATION CITED: Limitation Act 1969 s 14(1)(b), s 18A, s 52(1)(d), s 58, s 60E, s 60F, s 60G, s 60I, Sch 5
Motor Accidents Act 1988 s 52(4)
Supreme Court Act 1970 s75
CASES CITED: Smith v. Morton [2004] NSWCA 84
Browne v. Dunn (1893) 6 R 67
Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541
McLean v. Sydney Water Corporation [2001] NSWCA 122
Holt v. Wynter (2000) 49 NSWLR 128

PARTIES :

 Joanna Wilhelmina Fletcher - Appellant
Michael Besser - First Respondent
Central Sydney Area Health Service - Second Respondent
FILE NUMBER(S): CA 40957/2002
COUNSEL: J. Agius SC & M. Condon - Appellant
D.Davies SC - First Respondent
S. Kalfas - Second Respondent
SOLICITORS: Graham Billing & Co - Appellant
Tress Cocks & Maddox - First Respondent
Ebsworth & Ebsworth - Second Respondent
LOWER COURTJURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): CLD 12351/95
LOWER COURT
JUDICIAL OFFICER : 		Studdert J


                          CA 40957/2002

                          MASON P
                          GILES JA
                          BRYSON JA
          4 May 2004

JOANNA WILHELMINA FLETCHER v. MICHAEL BESSER AND


CENTRAL SYDNEY AREA HEALTH SERVICE

Judgment

1 MASON P: I agree with Bryson JA.

2 GILES JA: I have had the advantage of reading the reasons of Bryson JA in draft, with which I agree. Lest my agreement with his Honour’s observations on Smith v Morton [2004] NSWCA 84 be thought inconsistent with my agreement with the reasons of Hodgson JA in that case, I should say that in my additional remarks in Smith v Morton particularly para [4] I intended respectfully to depart from the observation in…

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AGLC
Fletcher v Besser [2004] NSWCA 132
Case
[2004] NSWCA 132
Decision Date

CaseChat Overview and Summary

The appeal concerned an application for an extension of time to commence proceedings for personal injuries. The appellant, who suffered severe disabilities following neurosurgery in October 1982, sought to join the respondents, a neurosurgeon and a hospital, as defendants in proceedings commenced in 1995. The appellant argued she was under a disability until 1990 and therefore able to sue until 1996. In 2000, she obtained expert opinions suggesting negligence in the neurosurgery and hospital treatment, and subsequently applied for an extension of time to join the respondents. Studdert J refused the extension, finding that a fair trial could not be held due to the respondents' difficulties in establishing the relevant events in detail.

The primary legal issue before the Court of Appeal was whether Studdert J erred in refusing the extension of time under section 60G of the *Limitation Act 1969* (NSW). This required the court to consider the "just and reasonable" test for granting such extensions, particularly in light of the respondents' potential difficulties in defending stale claims. The court also had to determine the relevance of potential prejudice to the defendants when assessing whether it was just and reasonable to grant an extension.

The Court of Appeal affirmed the decision of Studdert J, dismissing the appeal. The court reasoned that the "just and reasonable" test under section 60G requires an assessment of what is currently just and reasonable, rather than speculating on the respondents' hypothetical situation had proceedings been commenced earlier. The court found that the difficulties the respondents might have faced in defending a claim brought within the original limitation period were not a determinative factor in assessing the present justice and reasonableness of granting an extension. The court also noted that observations made in *Smith v Norton* regarding the significance of difficulties faced by defendants in stale claims were not applicable to section 60G. The appeal was dismissed with costs.

Orders

Orders of the court

[2002] NSWSC 899 affirmed. Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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