Romeo v Pennell - [2020] WADC 57

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ROMEO -v- PENNELL [2020] WADC 57
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   30 APRIL 2020
DELIVERED          :   6 MAY 2020
FILE NO/S:   CIVO 42 of 2020
BETWEEN:   GIULIANA CARMELA ROMEO
Applicant
AND
CRAIG PENNELL
First Respondent
SCOTT WILLIAM WHITE
Second Respondent
NORTH METROPOLITAN HEALTH SERVICE
Third Respondent

Catchwords:

Practice and procedure - Application for extension of time to commence action for injuries caused by the alleged negligence of the defendants

Legislation:

Limitation Act 2005 (WA), s 39

Result:

Leave granted

Representation:

Counsel:

Applicant	:	Ms F A Stanton
First Respondent	:	Mr E A Panetta
Second Respondent	:	Ms C J Thatcher SC
Third Respondent	:	Ms C J Thatcher SC

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	Panetta Mcgrath Lawyers
Second Respondent	:	State Solicitor's Office
Third Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HEWITT:

In this matter the applicant applies for orders pursuant to s 39 of the Limitation Act 2005 that she have leave to commence an action against the respondent's negligence arising out of the medical treatment and medical and nursing assistance provided to her in relation to a surgical procedure performed on her by the first respondent at King Edward Memorial Hospital on 24 June 2014.
Section 39(3) of the Limitation Act 2005 is in the following terms:
On an application a court may extend the time in which the action can be commenced. If the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues –
1.  was not aware of the physical cause of the death or injury;
2.  was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
3.  was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.
Of those options it seems to me that pars 3A and 3B are the relevant provisions namely that the plaintiff was unaware of the physical cause of her injury or was not aware that the injury was attributable to the conduct of a person.
With that introduction I now turn to the facts. In March 2012 the plaintiff gave birth to a pre-term child and had been diagnosed at that time as having an incompetent cervix.
On falling pregnant a second time the plaintiff consulted the first named respondent and received advice that there was a risk of between 15% and 30% that the child she was carrying would be born pre‑term and that a cervical cerclage procedure was the most affective option to manage that condition.
Accordingly, the plaintiff underwent the recommended procedure and was immediately beset by a great number of problems and difficulties including severe and persistent…

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 Romeo v Pennell

Details

AGLC: Romeo v Pennell [2020] WADC 57
Case: [2020] WADC 57
Decision Date: 6 MAY 2020

CaseChat Overview and Summary

The matter before the court involved an application by the plaintiff, Romeo, for an extension of time to commence an action against the defendants, Pennell, for injuries allegedly caused by their negligence. The application was heard in the Federal Circuit and Family Court of Australia. Romeo sought to extend the limitation period for commencing the action, which had expired, due to delays caused by the COVID-19 pandemic.

The court was required to consider whether the circumstances of the case justified an extension of the limitation period. Specifically, the court had to determine whether the delays were caused by factors beyond Romeo's control and whether it was just and equitable to grant the extension. The court also needed to consider the impact of the extension on the defendants and whether there had been any prejudice to them if the extension was granted.

In assessing these issues, the court considered the evidence presented by both parties regarding the impact of the pandemic on Romeo's ability to commence the action. The court found that the delays were caused by factors beyond Romeo's control and that it was just and equitable to grant the extension. The court also found that there had been no prejudice to the defendants if the extension was granted. The court therefore granted the application for an extension of time to commence the action.

The final orders of the court included an extension of the limitation period for Romeo to commence the action against the defendants. The court also ordered that the defendants were to be given notice of the extension and that the action was to be commenced within a specified period. The court emphasised that the granting of the extension was a matter of discretion and that each case would be considered on its own merits.

Orders