Vonhoff v Hillier - [2024] NSWSC 1285

Supreme Court

New South Wales

Medium Neutral Citation: Vonhoff v Hillier [2024] NSWSC 1285
Hearing dates: 21, 22 August 2024
Date of orders: 21 October 2024
Decision date: 21 October 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1)   The long-stop limitation period for the commencement of the proceedings is extended to 20 October 2020.
(2)   Those paragraphs of the amended statement of claim that purport to plead a cause of action in respect of the 2010 surgery are struck out.
(3)   The plaintiff is to serve an amended statement of claim on the defendant reflecting these orders within 14 days.
(4)   The matter is listed for further case management before me on 9 December 2024 at 9:30am.
(5)   Costs will be the defendant’s costs in the cause.
(6) Should the parties seek any different order, that can be raised on 9 December 2024.

Catchwords:
LIMITATION OF ACTIONS – where plaintiff sues the defendant for medical negligence alleged to have occurred in 2006 and 2010 – where proceedings not commenced until 2020 – application under s 62A of the Limitation Act 1969 for extension of the 12 year long-stop limitation period – whether the 3 year post discoverability period had expired at the time proceedings were commenced – whether just and reasonable to extend the long-stop limitation period

Legislation Cited:
Limitation Act 1969 (NSW), ss 50A, 50C, 50D, 50F, 62A, 62B

Cases Cited:
Baker-Morrison v New South Wales (2009) 74 NSWLR 454
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Doughty v Hillier [2024] NSWSC 1220
Drayton Coal Pty Ltd v Drain [1995] NSWCA 131
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
McLean v Sydney Water Corporation [2001] NSWCA 122
State of NSW v Gillette [2012] NSWCA 83

Category: Procedural rulings
Parties: Peter Walter Vonhoff (Plaintiff)
Dr Terence Hillier (Defendant)
Representation:
Counsel:
I Roberts SC and JA Hillier (Plaintiff)
J Downing SC (Defendant)
Solicitors:
Commins Hendriks (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s): 2020/300906
Publication restriction: Nil

JUDGMENT

This is a medical negligence claim arising out of the treatment afforded to the plaintiff by the defendant as an orthopaedic surgeon in 2006 and 2010.
By way of a notice of motion filed 5 June 2024, the plaintiff seeks orders extending the limitation period in respect of the causes of action in accordance with ss 62A and 62B of the Limitation Act 1969 (NSW) (“the Act”).
He also sought a declaration that he was a person under a disability and further that the limitation period should be suspended pursuant to s 50F of the Act. He no longer seeks those orders.
The plaintiff claims damages from the defendant arising out of alleged negligence in the advice and performance of operative treatment on two occasions, being on 2 March 2006 and then on 14 May 2010. The plaintiff alleges that on both occasions he was advised by the defendant to undergo surgery on his back. He complains both about…

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 Vonhoff v Hillier

Details

AGLC: Vonhoff v Hillier [2024] NSWSC 1285
Case: [2024] NSWSC 1285
Decision Date: 21 October 2024

CaseChat Overview and Summary

In Vonhoff v Hillier, the plaintiff, Vonhoff, initiated legal action against the defendant, Hillier, alleging medical negligence in relation to treatments provided in 2006 and 2010. The proceedings were not initiated until 2020. Hillier contested the validity of the claim, arguing that the statutory limitation period had expired, and sought an order to dismiss the action. The matter was heard in the Supreme Court of Queensland, which was tasked with determining the applicability of the limitation period under the Limitation Act 1969.

The court was required to decide two principal legal issues. Firstly, whether the three-year post-discoverability period had elapsed by the time the proceedings were initiated. Secondly, if the three-year period had indeed expired, whether it was just and reasonable to extend the twelve-year long-stop limitation period under section 62A of the Limitation Act 1969. The court considered these issues in light of the statutory provisions and relevant case law.

The court found that the three-year post-discoverability period had expired, and therefore the statutory limitation period had passed. However, the court exercised its discretion under section 62A of the Limitation Act 1969, deeming it just and reasonable to extend the limitation period. The court considered the circumstances of the case, including the plaintiff's diligence in pursuing the claim, the nature of the injuries, and the potential prejudice to the defendant. Ultimately, the court granted the plaintiff an extension of the limitation period, allowing the proceedings to continue.

In light of this decision, the court ordered that the proceedings could continue, and the defendant was required to respond to the allegations as set out in the plaintiff's statement of claim.

Orders