Wiggins v Meagher & Anor

[2003] NSWCA 49

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Wiggins v Meagher & Anor [2003]  NSWCA 49

FILE NUMBER(S):
40274/02

HEARING DATE(S):    10 March 2003

JUDGMENT DATE:      10/03/2003

PARTIES:
Lisa Sharon Wiggins - Claimant
Dr William Meagher - First Opponent
Southern Area Health Services - Second Opponent

JUDGMENT OF:        Giles JA Young CJ in Eq Grove J   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     DC 43/01 (Lithgow)

LOWER COURT JUDICIAL OFFICER:   Williams DCJ

COUNSEL:
J D Hislop QC & A J Hourigan - Claimant
S D Kalfas - First Opponent
M K Scott - Second Opponent

SOLICITORS:
Higgins & Higgins, Lithgow - Claimant
Ebsworth & Ebsworth - First Opponent
Sparke Helmore - Second Opponent

CATCHWORDS:
Limitations - extension of time - prejudice from delay whereby fair trial unlikely - clinical notes destroyed - whether significant prejudice - not shown clinical notes likely to bear upon the negligence alleged or causation - extension granted.  ND

LEGISLATION CITED:

DECISION:
1. Grant leave to appeal; 2. Direct the filing of a notice of appeal within 7 days; 3. Appeal allowed; 4. Set aside the order made dismissing the statement of claim; 5. Order that the limitation period be extended pursuant to Div 3 subdivision 3 and Sch 5 of the Limitation Act 1969 up to and including 25 May 2001; 6. Set aside the order for costs made in the District Court and in lieu thereof that the plaintiff pay the second and third defendants costs of the application to extend time in the District Court; 7. Order that the opponents pay the claimant's costs of the proceedings in this Court and have certificates under the Suitors Fund Act if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40274/02
DC  43/01

GILES JA
YOUNG CJ in EQ
GROVE J

Monday 10 March 2003

WIGGINS v MEAGHER & ANOR

JUDGMENT

1. GILES JA:  This is an application for leave to appeal, heard on full submissions so that if leave be granted the appeal can be determined without the necessity for a further hearing.  The prospective appeal is from a decision given on 15 March 2002 on an application for an extension of time, pursuant to the provisions of the Limitation Act 1969, for the claimant to bring proceedings against the opponents.

2. The claimant was admitted to the Young District Hospital on 19 April 1992 for the birth of her second child.  Whilst in the hospital she was under the care of Dr William Meagher.  She developed a venous condition in her right leg.  In the statement of claim filed in the District Court, in which Dr Meagher and the hospital were named as defendants, she alleged that the condition was not properly diagnosed or treated, and that in consequence she developed the more serious condition of deep vein thrombosis about two weeks later.  Having developed that more serious condition she was hospitalised and treated, and various things flowed in the ensuing years all of which she alleged…