McDonald v Ramalingam

[2003] QSC 280

SUPREME COURT OF QUEENSLAND

CITATION:

McDonald v Ramalingam & Ors [2003] QSC 280

PARTIES:

MAXINE SHIRLEY MCDONALD (NEE BRIGGS)
(plaintiff)
v
DR RAMALINGAM
(first defendant)
DR NOWICKI
(second defendant)
STATE OF QUEENSLAND
(third defendant)
ENDOVASIVE PTY LTD (ACN 061 512 132)
(fourth defendant)
FEMCARE LTD
(fifth defendant)

FILE NO/S:

SC No 10726 of 2000

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

5 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2003

JUDGE:

McMurdo J

ORDER:

Order in terms of amended application

CATCHWORDS:

LIMITATION OF ACTIONS – MATERIAL FACTS OF A DECISIVE CHARACTER - where plaintiff commenced proceeding outside relevant limitation period – where proceedings arise out of an unsuccessful sterilisation procedure performed by first and second defendant – where plaintiff contends material facts of a decisive character were not within her means of knowledge until a date after the commencement of the year preceding the expiration of the limitation period – whether the plaintiff has demonstrated the matters required by s 31(2)(a) Limitations Act – whether plaintiff has satisfied court that grounds exist for exercising discretion to extend time within which she may commence proceedings – whether real possibility of prejudice to a fair trial by reason of plaintiff’s delay

Limitation of Actions Act 1974 (Qld), s 5(7), s 11, s 30, s 30(1)(b), 30(1)(c), s 31, s 31(2)(b)

Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541, considered
Castlemaine Perkins Limited v McPhee (1979) Qd R 460, applied
De Innocentis v Brisbane City Council [2000] 2 Qd R 349, applied
Murray v Whiting [2002] QSC 257, cited
Opacic v Patane [1997] 1 Qd R 84, considered
Walkin v South Manchester Health Authority [1995] 4 All
ER 132, cited

COUNSEL:

G Mullins for the plaintiff
J Dalton for the defendants

SOLICITORS:

McInnes Wilson Lawyers for the plaintiff
Hunt & Hunt Lawyers for the defendants

1. McMURDO J:  The plaintiff commenced these proceedings by a claim issued on 7 December 2000, for damages for personal injuries and other loss from an unsuccessful sterilisation procedure performed on 19 April 1996.  The procedure was performed by the first and second defendants, as employees of the third defendant.  On 10 December 1997, the plaintiff became aware that she was pregnant.  For present purposes, the parties agree that the likely date of conception was, at the latest, 2 November 1997, and that any relevant cause of action accrued no later than that date.[1]  The relevant limitation period is three years.[2]  Accordingly, these proceedings were commenced a month or so out of time.

   [1]Murray v Whiting [2002] QSC 257 at [28]; Walkin v South Manchester Health Authority [1995] 4 All ER 132 at 139, 140, 142-3 and 144

   [2]Section 11 of Limitation of Actions Act 1974 (Qld)

1. Originally there were five defendants, but the plaintiff is no longer proceeding against the fourth and fifth defendants. The first, second and third defendants pleaded that the proceedings were time barred in their Defence filed on 10 May 2001. This is an…