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Kaye v Hoffman

Kaye v Hoffman

Case [2007] TASSC 31 30 May 2007

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[2007] TASSC 31

CITATION: Kaye v Hoffman [2007] TASSC 31

PARTIES:  KAYE, Kylie Marie  Plaintiff
  v
  HOFFMAN, Linda  Defendant
  STATE OF TASMANIA  Third Party

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1092/2001
DELIVERED ON:  30 May 2007
DELIVERED AT:  Hobart
HEARING DATES:  29 & 30 November; 7 & 13 December 2006;

31 January; 7, 8 & 9 March; and 11 & 12 April 2007

DECISION OF: Master S J Holt

CATCHWORDS:

Limitation of Actions – Contracts, torts and personal actions – Personal injury cases – Date of discoverability – Whether reasonable steps taken to ascertain facts.

Limitation Act 1974 (Tas), s2.
Aust Dig Limitation of Actions [28]

REPRESENTATION:

Counsel:
             Plaintiff:  M A Hartley
             Defendant:  K B Procter SC
             Third Party:  P Turner
Solicitors:
             Plaintiff:  Hugh Murray
             Defendant:  Murdoch Clarke
             Third Party:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 31
Number of paragraphs: 166

Serial No 31/2007
File No 1092/2001

KYLIE MARIE KAYE v LINDA HOFFMAN and
STATE OF TASMANIA (Third Party)

REASONS FOR DECISION Master S J Holt
30 May 2007

The application

This is an application by the plaintiff for an order extending the time for bringing an action for damages for personal injury. The application has been made under s38A of the Limitation Act 1974 ("the Act"). The provision was added to the legislation on 1 January 2005 with the commencement of the Limitation Amendment Act 2004. By subsection (1) it confers a discretion to extend time for up to three years from the date when the plaintiff knew or ought to have known that injury attributable to the defendant's conduct had been suffered. It applies to causes of action which accrued before 1 January 2005. The plaintiff's writ issued on 23 November 2001 claiming damages in respect of conduct which resulted in injury in 1994. The plaintiff claims that the date of discoverability was 26 November 1998. Hence the plaintiff says that s38A applies and there is a discretion to extend time to the date of the issue of the writ.

In her statement of claim the plaintiff alleges that "in late 1993 or early 1994" the defendant, an endocrinologist, negligently misdiagnosed her as suffering from a pituitary tumour. It is asserted that the plaintiff suffered personal injury including the side effects of drug therapy (the defendant having prescribed parlodel), a resultant pregnancy termination and fear, stress, anxiety and depression. The defendant has filed a defence denying that she diagnosed a pituitary tumour in the plaintiff and although admitting that she commenced treating the plaintiff with parlodel stating that it was the appropriate treatment for a condition from which the plaintiff did suffer, namely, hyperprolactinaemia. The defence also pleads that "the plaintiff's action is statute-barred by virtue of Section 5(1) of the Limitation Act 1974".

The Act, s5(1), is as follows:

"An action for damages for negligence, nuisance, or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently…

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 [2007] TASSC 31
Case: [2007] TASSC 31
Decision Date: 30 May 2007

CaseChat Overview and Summary

Kaye v Hoffman is a case in which the plaintiff, Kaye, sought damages from the defendant, Hoffman, for personal injuries sustained in a car accident. The dispute centred on the issue of the limitation period for the claim, which Kaye argued should be extended due to her delayed discovery of the full extent of her injuries. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether Kaye's cause of action accrued when the accident occurred, or when she became aware of the full extent of her injuries. A further issue was whether Kaye took reasonable steps to ascertain the full extent of her injuries within the limitation period. The court had to consider whether the discovery rule, which allows for the limitation period to be extended when the plaintiff was unaware of their injury, applied in this case.

The Supreme Court found that the cause of action accrued when the accident occurred, and that the limitation period had expired. The court held that Kaye had not taken reasonable steps to ascertain the full extent of her injuries within the limitation period. The court found that Kaye was aware of her injuries immediately after the accident, and that she could have taken steps to investigate the extent of her injuries if she had desired to do so. The court held that the discovery rule did not apply in this case, as Kaye was aware of her injuries and could have taken steps to investigate them. The limitation period was therefore not extended.

The Supreme Court dismissed Kaye's claim, holding that the limitation period had expired and that Kaye had not taken reasonable steps to ascertain the full extent of her injuries within that period. The court found in favour of Hoffman and dismissed Kaye's claim for damages.

Orders