Owen v Rogers - [2004] NSWSC 1097

CITATION: Owen v Rogers [2004] NSWSC 1097

HEARING DATE(S): 12 November 2004

JUDGMENT DATE:
19 November 2004

JURISDICTION:
Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: (1) Order that the plaintiff be granted an extension of the limitation period pursuant to s 60C of the Limitation Act 1969 up until the date of the filing of the ordinary statement of claim on 8 October 2002. (2) Leave granted to the plaintiff to amend the statement of claim in the form of the amended statement of claim last filed and initialled by me save for the deletion of para 10C(k) and the omission from para 10C(n) of the words "from at least the information provided by the manufacturer of the machine to be used to perform the LASIK surgery". (3) Further amended statement of claim pursuant to leave granted to be filed and served within seven days from today. (4) Costs are reserved.

LEGISLATION CITED: Limitation Act, ss 60C, 60E

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541
Dedousis v Water Board (1993-94) 181 CLR 171
Drayton Coal Pty Limited v Drain (unreported, NSWCA, 22 August 1995)
F.J. Walker Limited v Webber (unreported, NSWCA, 16 November 1989)
Fletcher v Besser [2004] NSWCA 132
McLean v Sydney Water Corporation [2001] NSWCA 122
South West Sydney Area Health Service v Gabriel & Anor [2001] NSWCA 477

PARTIES :
Jennifer Marie Owen (Plaintiff)
Dr Christopher Rogers (Defendant)

FILE NUMBER(S): SC 20086/04

COUNSEL: D.E. Graham (Plaintiff)
J. Downing (Defendant)

SOLICITORS: Savage Lawyers (Plaintiff)
Blake Dawson Waldron (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

STUDDERT J

Friday 19 November 2004

20086/04 JENNIFER MARIE OWEN v DR CHRISTOPHER ROGERS
JUDGMENT

1 HIS HONOUR: The plaintiff, Jennifer Marie Owen, has commenced proceedings against the defendant, Dr Christopher Rogers, claiming damages for negligence and for breach of contract. The proceedings commenced in the District Court where a statement of claim was filed on 8 October 2002, but the proceedings were later transferred to this court. The decision I am about to express concerns the plaintiff’s notice of motion filed on 6 July 2004 whereunder the plaintiff seeks an extension of time under the Limitation Act 1969. Certain other relief claimed in that same notice of motion has not been pursued.

2 The plaintiff is a thirty-three year old veterinary nurse who consulted the defendant about LASIK surgery in April 1997. On 11 June 1997 LASIK surgery was performed on both of the plaintiff’s eyes and, although immediately after the surgery the plaintiff was pleased with the result, her case is that the surgery on the left eye proved ultimately to be unsuccessful. Indeed, the plaintiff developed bilateral corneal keratoectasia, but the problem which developed in the left eye ultimately required that the plaintiff undergo a left corneal transplant.

3 According to the plaintiff, she consulted the defendant following surgery on a number of occasions. The first post operative consultation was on 12…

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 Owen v Rogers

Details

AGLC: Owen v Rogers [2004] NSWSC 1097
Case: [2004] NSWSC 1097
Decision Date: 19 November 2004

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the plaintiff, Jennifer Marie Owen, sued the defendant, Dr Christopher Rogers, for negligence and breach of contract related to a LASIK surgery performed on 11 June 1997. The plaintiff alleged that the surgery on her left eye was unsuccessful, leading to bilateral corneal keratoectasia and the need for a left corneal transplant. The plaintiff filed a statement of claim on 8 October 2002, after consulting with Dr Richard Smith, who informed her that she should not have undergone LASIK surgery due to her thin and irregular corneas. The defendant opposed the plaintiff's application for an extension of time, arguing that the plaintiff had failed to provide a satisfactory explanation for the delay in commencing proceedings.

In granting the plaintiff's application for an extension of the limitation period, Studdert J found that the delay was understandable given the plaintiff's belief that her vision would either improve with time or that it could be surgically corrected. The court also found that the plaintiff had discharged the onus of proving that there would not be such prejudice in the event that this application succeeds as would make the chances of an acceptably fair trial unlikely. However, leave was refused to the plaintiff to rely on certain particulars in the statement of claim until a copy of the relevant information booklet from the manufacturer of the laser machine used in the surgery becomes available. The court granted leave to the plaintiff to amend the statement of claim, with the exception of the deletion of para 10C(k) and the omission of specific words from para 10C(n). The plaintiff was ordered to file and serve the further amended statement of claim within seven days from the date of the judgment. Costs were reserved.

Orders