Love v Muratore - [2002] NSWCA 15

CITATION: Love v. Muratore [2002] NSWCA 15

FILE NUMBER(S): CA 40743/00

HEARING DATE(S): 4 February 2002

JUDGMENT DATE:
4 February 2002

PARTIES :

Beverley Ann Love - appellant
Orazio Ronald Muratore - respondent

JUDGMENT OF: Spigelman CJ at 1, 40, 42; Heydon JA at 41; Hodgson JA at 2

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 2556/99

LOWER COURT
JUDICIAL OFFICER : Woods DCJ

COUNSEL: Mr. R. Pincus for appellant
Mr. D. Higgs SC with Mr. A. Ivantsoff for respondent

SOLICITORS: S.M. Boyle & Co., Cronulla for appellant
Tress Cocks & Maddox, Sydney for respondent

CATCHWORDS: CIVIL PRACTICE AND PROCEDURE - Limitation period - Claim in respect of personal injury - Application to extend period - Medical opinion supporting duty - No notice that this contested, no objection, no cross-examination - Refusal on basis that kind of injury unforeseeable - Appeal from that refusal upheld. ND

LEGISLATION CITED: Limitation Act 1969, s.18A, s.60C

CASES CITED:
Dow Corning Australia Pty. Ltd. v. Paton, Court of Appeal, 13 March 1998 per Mason P.
Nowlan v. Marson Transport Pty. Ltd. [2001] NSWCA 346
Russo v. Aiello [2001] NSWCA 306

DECISION: 1. The appeal is allowed; 2. The respondent to pay the appellant's cost of the appeal; 3. The costs of the extension application in the District court to be costs in the cause; 4. Pursuant to section 60C of the Limitation Act 1969, that the time for filing the statement of claim in these proceedings be extended to 9 April 1999.

CA 40743/00
DC 2556/99

SPIGELMAN CJ
HEYDON JA
HODGSON JA
Monday 4th February 2002.

LOVE V. MURATORE

Judgment

1 SPIGELMAN CJ: I invite Hodgson JA to deliver the first judgment.

2 HODGSON JA: This is an appeal by leave against orders made by Woods DCJ on 18 August 2000 dismissing with costs an application by the appellant for an order under s.60C of the Limitation Act 1969 extending a limitation period for a cause of action.

3 I commence with an outline of the circumstances giving rise to this appeal.

4 Between about June 1995 and March 1996, the appellant attended as a patient for treatment at St. George Sports Injury Centre in respect of a painful right foot. On or about 1 June 1995, the respondent doctor put the appellant’s foot in plaster and gave her crutches. The appellant’s complaint is that the respondent did not instruct her how to use the crutches, that for about four weeks she used the crutches in such way that the weight of her body was taken through her armpits rather than through her arms, and that as a result she suffered injury.

5 By about 4 June 1995, according to the appellant, she had severe pain in her shoulders and elsewhere after using the crutches. The pain in her shoulders continued until 28 June 1995 when, according to the appellant, her physiotherapist instructed her in the correct use of the crutches. The pain in her shoulders, however, continued…

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 Love v Muratore

Details

AGLC: Love v Muratore [2002] NSWCA 15
Case: [2002] NSWCA 15
Decision Date: 4 February 2002

CaseChat Overview and Summary

Love v Muratore concerned an appeal from a District Court judge's refusal to extend the limitation period for a personal injury claim. The appellant, Mr Love, sought to bring proceedings against the respondent, Mr Muratore, for personal injuries allegedly sustained. The primary issue before the Court of Appeal was whether the District Court judge erred in refusing the application to extend the time within which the appellant could file his statement of claim.

The Court of Appeal was required to determine whether the District Court judge had applied the correct legal principles when considering the application for an extension of time under section 60C of the *Limitation Act 1969* (NSW). Specifically, the court had to assess whether the judge's reasoning, which focused on the unforeseeability of the type of injury, was a proper basis for refusing the extension, particularly in circumstances where the medical opinion supporting the claim was not contested and no objection was raised or cross-examination conducted at the initial hearing.

The Court of Appeal found that the District Court judge had erred in his approach. The court held that the judge's focus on the unforeseeability of the injury was not the correct test for granting an extension under section 60C. Instead, the court emphasised that the primary consideration should be whether the plaintiff has a "reasonably arguable case" that the injury was not discovered until a date within the limitation period. The court noted that the medical evidence supporting the appellant's claim had not been challenged, and there was no indication that the respondent contested the appellant's assertion that the injury was not discovered until a later date. Consequently, the appeal was allowed, the refusal to extend the limitation period was set aside, and the time for filing the statement of claim was extended.

Orders

Orders of the court

1. The appeal is allowed; 2. The respondent to pay the appellant's cost of the appeal; 3. The costs of the extension application in the District court to be costs in the cause; 4. Pursuant to section 60C of the Limitation Act 1969, that the time for filing the statement of claim in these proceedings be extended to 9 April 1999.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Love v. Muratore [2002] NSWCA 15
FILE NUMBER(S):	CA 40743/00
HEARING DATE(S):	4 February 2002
JUDGMENT DATE:	4 February 2002
PARTIES :	Beverley Ann Love - appellant Orazio Ronald Muratore - respondent
JUDGMENT OF:	Spigelman CJ at 1, 40, 42; Heydon JA at 41; Hodgson JA at 2

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	2556/99
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

COUNSEL:	Mr. R. Pincus for appellant Mr. D. Higgs SC with Mr. A. Ivantsoff for respondent
SOLICITORS:	S.M. Boyle & Co., Cronulla for appellant Tress Cocks & Maddox, Sydney for respondent
CATCHWORDS:	CIVIL PRACTICE AND PROCEDURE - Limitation period - Claim in respect of personal injury - Application to extend period - Medical opinion supporting duty - No notice that this contested, no objection, no cross-examination - Refusal on basis that kind of injury unforeseeable - Appeal from that refusal upheld. ND
LEGISLATION CITED:	Limitation Act 1969, s.18A, s.60C
CASES CITED:	Dow Corning Australia Pty. Ltd. v. Paton, Court of Appeal, 13 March 1998 per Mason P. Nowlan v. Marson Transport Pty. Ltd. [2001] NSWCA 346 Russo v. Aiello [2001] NSWCA 306
DECISION:	1. The appeal is allowed; 2. The respondent to pay the appellant's cost of the appeal; 3. The costs of the extension application in the District court to be costs in the cause; 4. Pursuant to section 60C of the Limitation Act 1969, that the time for filing the statement of claim in these proceedings be extended to 9 April 1999.