Frizelle v Bauer

[2009] NSWCA 239

New South Wales

Court of Appeal

CITATION:

FRIZELLE v BAUER [2009] NSWCA 239

HEARING DATE(S):

3 August 2009

 
JUDGMENT DATE: 

3 August 2009

JUDGMENT OF:

McColl JA at 1; Basten JA at 2

EX TEMPORE JUDGMENT DATE:

3 August 2009

DECISION:

(1) Grant extension of time.

(2) Refuse leave to appeal.

(3) Order the applicant to pay the respondent’s costs in this Court.

CATCHWORDS:	APPEAL – leave to appeal – "holding appeal" originally filed – extension of time required to file application for leave– no explanation or justification for subsequent delay – whether prejudice caused by delay – whether application for leave reasonable arguable - LIMITATION OF ACTIONS – action for damages arising from personal injury – date when cause of action is discoverable – anticipated requirement of ongoing surgery and medical attention – impairment of earning capacity – receipt of advice from solicitors – whether plaintiff knew or ought to have known that injury was sufficiently serious to justify the bringing of an action – Limitation Act 1969 (NSW) s 50C(1), s 50D - WORDS AND PHRASES – "discoverable" – "sufficiently serious to justify the bringing of an action"
LEGISLATION CITED:	Limitation Act 1969 (NSW), ss 50C, 50D Uniform Civil Procedure Rules 2005 (NSW), r 28.2
CASES CITED:	Baker-Morrison v State of New South Wales [2009] NSWCA 35
PARTIES:	Kelly Renee Frizelle (Applicant) Wolfgang Bauer (First Respondent) Chepan Pty Ltd T/as L J Hooker Newtown (Second Respondent)
FILE NUMBER(S):	CA 40008/09
COUNSEL:	J E Sexton SC/R W Royle (Applicant) M Kumar (First Respondent) D Hand (Second Respondent)
SOLICITORS:	Slater & Gordon (Applicant) Curwoods Lawyers (First Respondent) William Cotsis & Associates (Second Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5064/06
LOWER COURT JUDICIAL OFFICER:	McGrowdie ADCJ
LOWER COURT DATE OF DECISION:	27 November 2007

CA 40008/09

McCOLL JA
BASTEN JA

3 August 2009

Kelly Renee FRIZELLE v Wolfgang BAUER & ANOR

Judgment

1 McCOLL JA: I agree with Basten JA.

2 BASTEN JA: On 2 July 2003 the applicant suffered a serious fall in rented premises in Erskineville. The fall occurred at night, whilst she was seeking to negotiate a wooden staircase leading down from the bedroom, which did not have a handrail on either side. As a result of the fall she was knocked unconscious and fractured her left kneecap. Her knee was reconstructed at Royal Prince Alfred Hospital.

3 She sought legal advice on 17 July 2003 but did not commence proceedings for damages with respect to her personal injury until 5 April 2007.

4 The relevant limitation period within which to commence proceedings was three years from the date on which her cause of action was “discoverable”: Limitation Act 1969 (NSW), s 50C(1). The operation of that section is conditioned upon the definitions contained in s 50D, which relevantly reads:

“ 50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person…