Fletcher v Hamilton-Gibbs - [2009] NSWSC 124

CITATION: FLETCHER v HAMILTON-GIBBS & ORS [2009] NSWSC 124

HEARING DATE(S): 25/09/07, 26/09/07, 27/09/07, 12/12/07, 13/12/07, 14/02/07, 19/03/08, 20/03/08

JUDGMENT DATE :
6 March 2009

JUDGMENT OF: Adams J at 1

DECISION: Application refused with costs

CATCHWORDS: Limitation Act 1969 - earlier case refused extension - new particulars of negligence - whether can make new application or renew old application - extension of time refused

LEGISLATION CITED: Limitation Act 1969

CATEGORY: Principal judgment

CASES CITED: Fletcher v Besser [2004] NSWCA 132
Nominal Defendant v Manning (2000) 50 NSWLR 139

PARTIES: Joanna Wilhelmina Fletcher (Plaintiff)
Peter Hamilton-Gibbs (First Defendant)
Peter Durey (Second Defendant)
Michael Besser (First Respondent)
Sydney South West Area Health Service (formerly Central Sydney Area Health Service) (Second Respondent)

FILE NUMBER(S): SC 12351/1995

COUNSEL: L King SC/K Connor SC (Plaintiff)
No appearance (First Defendant)
D Villa (Second Defendant)
D Davies SC/J Downing/P Rooney (First Respondent)
S Kalfas SC (Second Respondent)

SOLICITORS: Graham Billing & Co (Plaintiff)
Carmody Crampton (First Defendant)
Kennedys (Second Defendant)
Tress Cocks & Maddox (First Respondent)
Ebsworth & Ebsworth (Second Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

6 March 2009

12351/95 - FLETCHER v HAMILTON-GIBBS & ORS

JUDGMENT

HIS HONOUR:
Introduction

1 On 22 September 1982 Ms Fletcher was admitted to the Orange Base Hospital under the care of Dr Gordon, a consultant neurologist. Dr Gordon assessed Ms Fletcher as having symptoms of raised intracranial pressure attributable to a tumour or hydrocephalus and transferred her to the Royal Prince Alfred Hospital, conducted by the second respondent, the Central Sydney Area Health Service. At the hospital Ms Fletcher came under the care of Michael Besser, the first respondent and investigations revealed that she was suffering from hydrocephalus secondary to aqueduct stenosis. A CT scan was performed on 23 September which showed very marked hydrocephalus. There was a history demonstrating increased and, arguably, increasing intercranial pressure. On 27 September hospital records note an episode of unconsciousness and decerebration. On 28 and 30 September 1982 the first respondent carried out a right frontal craniotomy and a third ventriculostomy (for brevity referred to hereafter simply as a ventriculostomy). Shortly after commencement of the latter procedure blood was seen at the site but the procedure was nevertheless completed. Probably as a result of the surgery, Ms Fletcher suffered a large deep intracerebral haemorrhage away from the operation site. On 12 October 1982 the first respondent carried out a craniotomy to evacuate the haematoma. Ms Fletcher was left severely disabled with left side hemiplegia and, not surprisingly, suffered from a number of continuing major problems and disabilities in the years that followed.

2 Ms Fletcher commenced proceedings in 1992 against the first defendant, Peter Hamilton-Gibbs and the second defendant, Peter Durey, in 1992. These defendants were her general practitioners. Ms Fletcher alleges that they did not treat the symptoms, which she was then exhibiting, that were related to her brain problems. Following investigations made by her solicitor Mr Billing, which were much delayed, Ms Fletcher…

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 Fletcher v Hamilton-Gibbs

Details

AGLC: Fletcher v Hamilton-Gibbs [2009] NSWSC 124
Case: [2009] NSWSC 124
Decision Date: 6 March 2009

CaseChat Overview and Summary

The Court considered the application of a plaintiff, Fletcher, to extend the limitation period under the Limitation Act 1969 to bring a negligence claim against a defendant, Hamilton-Gibbs. The application followed a previous refusal to extend the limitation period. The primary issue was whether Fletcher could make a new application or renew the old application for an extension of time. The court was required to determine the appropriate legal framework for handling such successive applications and whether the circumstances justified granting the extension.

The court held that under the Limitation Act 1969, a new application for an extension of time could only be made if there were new particulars of negligence that were not known and could not have been known at the time of the previous application. The court found that Fletcher had not provided any new particulars that justified a new application. Instead, the application was an attempt to renew the old application, which was not permissible. The court emphasised the importance of strict adherence to the statutory provisions concerning limitation periods and the requirement for new and specific evidence to support an extension application.

Consequently, the court refused the application for an extension of time. The reasoning was that no new particulars had been presented that warranted reconsideration of the limitation period, and the application was essentially a renewal of the previous unsuccessful application. The court's decision underscored the necessity for applicants to provide compelling and new evidence to support any claim for an extension of time under the Limitation Act 1969. The orders of the court effectively dismissed Fletcher's application, leaving the plaintiff without an extension to bring the negligence claim against Hamilton-Gibbs.

Orders