Segal v Fleming

In *Segal v Fleming*, the claimant (Segal) appealed to the New South Wales Court of Appeal against a decision of the primary judge which had dismissed his claim against the defendant (Fleming). The dispute concerned a property encumbered by an easement, where the claimant asserted an equitable claim to have the easement removed.

The central legal issue before the Court of Appeal was when the claimant first suffered damage for the purposes of the Limitation Act 1969 (NSW). This involved determining whether the damage was actual, or merely contingent or prospective, and whether it constituted a loss of a chance.

The Court of Appeal reasoned that the damage suffered by the claimant was not the mere existence of the easement, but rather the loss of a chance to have the easement removed. This loss of chance occurred at the time the claimant was informed of the easement and its potential impact, and not at a later date when the easement might have been exercised. The court allowed the appeal, setting aside the orders below and granting leave to the claimant to apply to amend his statement of claim to specify negligence in relation to the events of August 1989. The outcome was contingent on the claimant filing the necessary applications and draft amended statement of claim within specified timeframes.