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Fletcher v Hamilton-Gibbs

Fletcher v Hamilton-Gibbs

Case [2002] NSWSC 899 1 October 2002

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CITATION: Fletcher v Hamilton-Gibbs & Ors [2002] NSWSC 899

CURRENT JURISDICTION: Common Law Division
Professional Negligence List

FILE NUMBER(S): SC 12351/95

HEARING DATE(S): 13 August - 15 August 2002

JUDGMENT DATE: 1 October 2002

PARTIES :

Joanna Wilhelmina Fletcher (Plaintiff)
Dr Peter Neil Hamilton-Gibbs (1st Defendant)
Dr Peter Durey (2nd Defendant)
Michael Besser (3rd Defendant)
Central Sydney Area Health Service (4th Defendant)

JUDGMENT OF: Studdert J

COUNSEL : M. Cranitch SC/R. Ingram (Plaintiff)
D. Davies SC (3rd Defendant)
S. Kalfus (4th Defendant)

SOLICITORS: Graham Billing & Co. (Plaintiff)
Tress Cocks & Maddox (3rd Defendant)
Ebsworth & Ebsworth (4th Defendant)

CATCHWORDS: Limitation of action - application for extension of time - whether applicant aware of connection between "the personal injury" and the respondent's alleged "act or omission" - what needed to constitute awareness - whether just and reasonable to order that time be extended - consideration of prejudice - Limitation Act ss 60G, I.

LEGISLATION CITED: Limitation Act

CASES CITED: Drayton Coal Pty Limited v Drain (unreported, NSWCA, 22 August 1995)
Dedousis v The Water Board (1993-94) 181 CLR 171
Telstra Corp Limited v Rea [2002] NSWCA 49
Briggs v Sewell [2002] NSWCA 182
Milperra Marketing Pty Limited v Bayliss [2001] NSWCA 315
Maclean v Sydney Water Corporation [2001] NSWCA 122
Commonwealth of Australia v Clarke [2000] NSWCA 174
Gladesville RSL Club v Bartsch (1998) 44 NSWLR 674
CSR Limited v Rendell (unreported, NSWCA, 7 August 1996)
Do Carmo v Ford Excavations Pty Limited (1983-84) 154 CLR 234
Dow Corning v Paton (unreported, NSWCA, 24 April 1998)
Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430
Briggs v James Hardy & Co. Pty Limited (1989) 16 NSWLR 549
Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541
Holt v Winter (2000) 49 NSWLR 128
Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207

DECISION: See para 90

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE list

STUDDERT J

Tuesday 1 October 2002

12351/95 JOANNA WILHELMINA FLETCHER v PETER NEILL HAMILTON-GIBBS & ORS
JUDGMENT

1 HIS HONOUR: By notice of motion filed on 4 February 2002 the plaintiff sought, inter alia, an order that the limitation period be extended against the third and fourth defendants. That application has been strenuously resisted.

2 The plaintiff, Joanna Wilhelmina Fletcher, commenced proceedings in 1992 against the first defendant, Peter Hamilton-Gibbs, and the second defendant, Peter Durey. Subsequently those proceedings were transferred from Orange to be heard in Sydney and in 1995 the current cause commenced.

3 The plaintiff was a patient of the first defendant during the period from 1975 until 1982 and it is the plaintiff’s case that in that period the plaintiff developed symptoms for which she consulted the first defendant and in respect of which the first defendant failed to afford adequate treatment. The second defendant is also a general practitioner who was consulted by the plaintiff for her continuing symptoms in 1982 and again it is the plaintiff’s case that the…

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 [2002] NSWSC 899
Case: [2002] NSWSC 899
Decision Date: 1 October 2002

CaseChat Overview and Summary

The case of Fletcher v Hamilton-Gibbs involved a plaintiff seeking to extend the time for bringing a personal injury claim against a defendant. The plaintiff was contesting the application, arguing that the plaintiff's knowledge of the connection between the injury and the defendant's actions did not meet the statutory requirements. The court was required to determine whether the plaintiff's awareness of the causal link was sufficient and whether it was just and reasonable to grant the extension of time under the provisions of the Limitation Act.

The primary legal issue was the interpretation of the statutory requirement for awareness in relation to the plaintiff's knowledge of the connection between the injury and the defendant's actions. The court considered what constituted awareness under the Act, specifically whether the plaintiff needed to be aware of the causal link at the time of the injury or at the time of the application for the extension. Furthermore, the court assessed the prejudice that might result from the grant or refusal of the extension, as required by the statutory provisions.

The court found that the plaintiff's awareness of the connection between the injury and the defendant's actions was not sufficient as per the statutory requirement. The court held that awareness needed to be established at the time of the injury and not at the time of the application. The court also considered the prejudice to both parties and determined that it was not just and reasonable to grant the extension of time. Consequently, the application for the extension was dismissed.

The court's final orders were that the application for the extension of time be dismissed. The plaintiff was not granted the extension, and the personal injury claim remained subject to the limitation period as prescribed by the Limitation Act.

Orders