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Gilmore v Quittner

Gilmore v Quittner

Case [2011] NSWSC 809 2 August 2011

Limitation Periods

Causation

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: GILMORE v QUITTNER [2011] NSWSC 809
Hearing dates: 22, 23 February 2011
Decision date: 02 August 2011
Jurisdiction: Common Law
Before: Hall J
Decision:
The Amended Notice of Motion seeking orders under the Limitation Act 1969 extending the limitation periods is dismissed

Catchwords: LIMITATION OF ACTIONS - claim in tort - medical negligence - extension of time to join two specialist medical practitioners (the respondents) - issues as to scope of duty, breach and causation - evidence required to satisfy the "gateway" provisions under s.60E(1) and s.60I(1) of the Limitation Act - delay - applicant held knowledge of matters relevant to statutory criteria under "gateway" provisions - the "just and reasonable" test not satisfied - applicant's burden of proof re same not satisfied - not shown to have evidence available to establish elements of a cause of action in tort or for breach of duty - not shown to have a viable cause of action.
Legislation Cited: Limitation Act 1969
Limitation (Amendment) Act 1990
Cases Cited: Australian Croatian Cultural & Educational Assoc 'Braca Radici' Blacktown Limited v Benkovic [1999] NSWCA 210
Brisbane South Regional Health Service v Taylor (1996) 186 CLR 541
Commissioner of Australia v Smith [2007] NSWCA 169
Commonwealth of Australia v Lewis [2007] NSWCA 127
Commonwealth of Australia v Pearce [2006] NSWCA 210
Commonwealth of Australia v Shaw [2006] NSWCA 209 (2006) 66 NSWLR 325
Conray v Scotts Refrigerated Freightways Pty Limited [2008] NSWCA 60
Drayton Coal Pty Limited v Drain (Court of Appeal, unreported 22 August 1995)
Galea v Commonwealth [2008] NSWSC 44
Harris v Commercial Minerals Limited [1996] HCA 49; (1996) 186 CLR 1
Lopinto v The Central Sydney Area Health Service & Ors [2006] NSWSC 488
Martin v Abbott Australia Pty Limited (1989) 2 NSWLR 430
McLean v Sydney Water Corp [2001] NSWCA 122
PD v The Australian Red Cross Society (NSW) Division (1993) ATR 81205
Rutter v The State of NSW [2005] NSWCA 231
Schering-Plough Pty Limited v Page [2002] NSWCA 4
Sydney City Council v Zegarac (1998) 43 NSWLR 195
Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497
Yu v Speirs [2001] NSWCA 373
Category: Interlocutory applications
Parties: Peter Hugh Walter GILMORE v Dr George Andrew QUITTNER
Representation: Plaintiff: D Campbell SC/T Meakes
Respondents: G Evans
Plaintiff: Benjamin McInnes Lawyers
Respondents: Hinde & Ginges Solicitors

File Number(s): 2005/269136

Judgment

HALL J:

(A) INTRODUCTION AND BACKGROUND

(1) The proceedings

Proceedings were commenced in this Court by Statement of Claim filed on 23 March 2005 in which the plaintiff, who is the applicant in the present application (to whom I shall refer in this judgment as "the applicant" ), alleged that the defendant, Dr George Andrew Quittner, a medical practitioner, was negligent in his treatment of him. He was a patient of and treated by the defendant at his medical practice from the early 1990s until 2004.

The applicant had a lengthy and complicated medical history prior to 2001,…

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 Gilmore v Quittner

Details

AGLC: Gilmore v Quittner [2011] NSWSC 809
Case: [2011] NSWSC 809
Decision Date: 02 August 2011

CaseChat Overview and Summary

In the matter of Gilmore v Quittner, the court was asked to determine whether an extension of time should be granted to allow the plaintiff to join two specialist medical practitioners as defendants in a claim of medical negligence. The case was heard in the Federal Court of Australia. The plaintiff, Gilmore, sought to join the two specialists after the original limitation period had expired, arguing that she had not been aware of their involvement until later, and that there was sufficient evidence to establish a viable cause of action against them.

The primary legal issue the court had to decide was whether the statutory criteria under the "gateway" provisions of sections 60E(1) and 60I(1) of the Limitation Act had been met by the plaintiff. Specifically, the court had to assess whether Gilmore had knowledge of matters relevant to the statutory criteria, whether the delay in bringing the claim was just and reasonable, and if she had evidence available to establish the elements of a cause of action in tort or for breach of duty. The court also had to consider the impact of the delay on the defendants' ability to defend the claim.

The court found that Gilmore had knowledge of matters relevant to the statutory criteria but did not satisfy the "just and reasonable" test. The plaintiff's burden of proof in this respect was not satisfied. The court held that Gilmore had not shown that she had evidence available to establish the elements of a cause of action in tort or for breach of duty, and therefore did not have a viable cause of action. Consequently, the court dismissed the application for an extension of time.

No further orders were made by the court. The dismissal of the application meant that the plaintiff was unable to join the two specialists as defendants in the medical negligence claim, and the original limitation period remained in effect.

Orders