Murray v Whiting

[2002] QSC 257

SUPREME COURT OF QUEENSLAND

CITATION:

Murray & Anor v Whiting & Ors [2002] QSC 257

PARTIES:

DARREN PAUL MURRAY
(first plaintiff)
AND
EILEEN ROSE MURRAY
(second plaintiff)
AND
JOHN LESLIE WHITING
(first defendant)
AND
CHRISTOPHER ROBIN STRAKOSCH
(second defendant)
AND
MICHAEL BERNARD SUTHERS
(third defendant)
AND
VERNON JAMES HEAZLEWOOD
(fourth defendant)
AND
PETER JAMES SUTHERLAND
(fifth defendant)

FILE NO:

3127 of 1999

DIVISION:

Trial

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

20 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2002

JUDGE:

Chesterman J

ORDER:

1.   That paragraphs 16(a) and (b) of the statement of claim are struck out.

2.   That the application is otherwise dismissed.

CATCHWORDS:

LIMITATION OF ACTIONS – APPLICATION OF STATUTES OF LIMITATION – Applicant sought order that plaintiffs’ case be dismissed – Whether claim time-barred

LIMITATION OF ACTIONS – TORT – NEGLIGENCE Unwanted pregnancy – Whether claims for personal injury and pure economic loss were distinct causes of action

Limitation of Actions Act 1974 s 11, s10
Uniform Civil Procedure Rule 293

Allen v Bloomsbury Health Authority 1993 1 All ER 651, cited
Bollen v Hickson [1980] Qd R 327, cited
Brunsden v Humphrey 1884 14 QBD 141, applied
Bryan v Maloney (1995) 182 CLR 609, cited
De Innocentis v Brisbane City Council [2000] 2 Qd R 349, cited
Linsley v Petrie [1998] 1 VR 427, cited
McFarlane v Tayside Health Board [2000] 2 AC 59, considered
Melchior v Cattanach [2001] QCA 246, applied
Sundbird Plaza Pty Ltd v Boheto Pty Ltd [1983] 1 Qd R 248, cited
Sutherland Shire Council v Heyman (1984–1985) 157 CLR 424, considered
Theseus Exploration NL v Foyster (1972) 126 CLR 507, cited
Wagon Mound (No 1), cited
Walkin v South Manchester Health Authority [1995] 1 WLR 1543, not followed
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, considered

COUNSEL:

Mr D. H. Tait for the applicant
Ms E. de Luca for the respondent (self-represented)

SOLICITORS:

Tress Cocks & Maddox for the applicant

Ms E. de Luca for the respondent (self-represented)

1. CHESTERMAN J:  The respondents (plaintiffs) are the parents of a child born on 11 April 1996.  Their pleaded claim is that the first (male) respondent consulted and received treatment from the defendants (four of whom are the applicants) for a condition known as Kallmann’s Syndrome which is a failure of the pituitary gland to produce stimulating hormones responsible for the production of testosterone and spermatozoa.  The syndrome results in a lack of sexual development. 

1. The defendants are all medical practitioners who, at various times between 1986 and 1995, treated the first respondent for his condition.  The applicants are the second to fifth defendants.  The second defendant is an endocrinologist, the third defendant a specialist physician, the fourth defendant a specialist physician and pharmacologist and the fifth defendant a general practitioner. 

1. The first respondent was prescribed and received testosterone replacement therapy.  As a result he was able to, and was advised he could, impregnate his de facto wife,…