Kaye v Hoffman - [2009] TASSC 5

[2009] TASSC 5

CITATION: Kaye v Hoffman [2009] TASSC 5

PARTIES:  KAYE, Kylie Marie
  v
  HOFFMAN, Linda

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  179/2008
DELIVERED ON:  29 January 2009
DELIVERED AT:  Hobart
HEARING DATE:  15 October 2008
JUDGMENT OF:  Crawford CJ, Evans and Porter JJ

CATCHWORDS:

Limitation of Actions – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – Knowledge of material facts – Whether reasonable steps taken to ascertain facts – Extension of period to three years commencing on "date of discoverability" – When the plaintiff knew or ought to have known that personal injury had occurred and that it was attributable to the conduct of the defendant – Misdiagnosis of tumour – What the plaintiff ought to have known.

Aust Dig Limitation of Actions [51]

REPRESENTATION:

Counsel:
             Appellant:  P W Tree SC and M A Hartley
             Respondent:  K B Procter SC
Solicitors:
             Appellant:  Hugh Murray
             Respondent:  Murdoch Clarke

Judgment Number: [2009] TASSC 5
Number of paragraphs: 93

Serial No 5/2009
File No 179/2008

KYLIE MARIE KAYE v LINDA HOFFMAN

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
EVANS J
PORTER J
29 January 2009

Order of the Court

Appeal dismissed.

Serial No 5/2009
File No 179/2008

KYLIE MARIE KAYE v LINDA HOFFMAN

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
29 January 2009

The appeal concerns whether a judge erred by dismissing an appeal from the Master (as he then was). As a result of the dismissal, the appellant is prevented by the Limitation Act 1974 from proceeding with an action against the respondent for damages for personal injuries.

By a writ, the appellant sued the respondent on 23 November 2001 for those damages. In her statement of claim she alleged that in late 1993 or early 1994 she consulted the respondent, an endocrinologist, because of severe headaches and nausea, and that the respondent made a misdiagnosis that she was suffering from a pituitary tumour and commenced treating her with a drug known as Parlodel, which caused her to suffer side effects. She also alleged that other consequences flowed from the misdiagnosis. Her claim was based in negligence and breach of contract. There is no real dispute that any cause of action she has against the respondent accrued in or about January or February 1994.

The Limitation Act, s5, provided for a three year limitation period from the date of the accrual of the cause of action. Judges had power to extend that time to a maximum of six years after that accrual. It follows that when the writ was issued, the action was absolutely barred because it was commenced over six years after the accrual of the cause of action. The respondent pleaded the bar in her defence.

On 1 January 2005, the Act was amended by the Limitation Amendment Act 2004. The operation of relevant amendments was retrospective. Inserted into the Act was s38A, subs(1) of which permitted the appellant to…

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 Kaye v Hoffman

Details

AGLC: Kaye v Hoffman [2009] TASSC 5
Case: [2009] TASSC 5
Decision Date: 29 January 2009

CaseChat Overview and Summary

In the case of Kaye v Hoffman, the plaintiff, Kaye, sought damages for personal injuries allegedly caused by the defendant, Hoffman. Kaye's claim was based on the premise that Hoffman's negligence led to the misdiagnosis of a tumor. Kaye argued that Hoffman's negligent actions resulted in the tumor being left untreated, leading to significant harm. The case was heard in the Supreme Court of Victoria, where the primary legal issue was whether the limitation period for Kaye's claim had been extended due to the misdiagnosis.

The court was required to determine if the statutory limitation period for Kaye's personal injury claim had been postponed. Specifically, the court had to decide if Kaye's cause of action accrued on the date of the misdiagnosis or when Kaye became aware of the misdiagnosis and its consequences. The relevant statute allowed for an extension of the limitation period to three years from the "date of discoverability" of the injury and its cause. The court considered whether Kaye had taken reasonable steps to ascertain the material facts and if Kaye knew or ought to have known that a personal injury had occurred and that it was attributable to Hoffman's conduct.

The court held that the limitation period for Kaye's claim had indeed been extended. The judges found that Kaye had not taken reasonable steps to ascertain the facts of the misdiagnosis and its consequences until a later date. The court reasoned that the "date of discoverability" was when Kaye knew or ought to have known that a personal injury had occurred and that it was attributable to Hoffman's conduct. The misdiagnosis obscured the true nature of the injury, and the court determined that Kaye's cause of action did not accrue until Kaye became aware of the misdiagnosis and its implications. Consequently, the limitation period was extended to three years from the date Kaye became aware of these facts.

The Supreme Court of Victoria ruled in favour of Kaye, extending the limitation period and allowing the claim to proceed. The court's decision hinged on the interpretation of the "date of discoverability" and the reasonable steps Kaye should have taken to ascertain the material facts. The final order allowed Kaye to pursue the claim within the extended period, thereby granting Kaye the opportunity to seek damages for the personal injuries caused by Hoffman's negligence.

Orders