Carlton & Anor v Hunter Valley X-Rays P/L & 2 Ors [2001] NSWSC 109

Carlton & Anor v Hunter Valley X-Rays P/L & 2 Ors [2001] NSWSC 109

The tort cause of action accrued when damage was suffered on Alexander's birth, not when the pregnancy could last have been terminated. The plaintiffs did not know before expiry of the limitation period the acts or omissions connecting Hospital Corporation Australia Pty Limited to the alleged injury, and only became aware in May 1999 that it may have been responsible for performing the ultrasound. They therefore satisfied the s 60I gateway. Although the passage of time gave rise to presumptive prejudice and the ultrasonographer's worksheet was missing, the films and videotape were available, the missing worksheet was not central to all allegations, and Hospital Corporation was put on...

Jurisdiction
Australia
Judgment Date
05 March 2001
Procedural Posture
Medical Negligence Proceedings Involving Applications for Extension of Limitation Period, Joinder, Amendment, Dismissal of Claims and Cross Claims / Interlocutory Notice of Motion Before Master Harrison
Outcome
Extension of limitation period granted for tort claims against Hospital Corporation Australia Pty Limited; extension refused for breach of contract claims; leave granted to add Hospital Corporation Australia Pty Limited as third defendant and to file a further, further, further amended statement of claim; Hospital...
Legal Topics
['extension of Limitation Period' 'personal Injury Limitation Period' 'ultrasound of Baby' 'spina Bifida and Hydrocephalus' 'cross Claims for Contribution' 'summary Judgment' 'joinder of Defendant' 'amendment of Statement of Claim']
['civil Procedure' 'limitation of Actions' 'torts' 'medical Negligence'] ['extension of Limitation Period' 'personal Injury Limitation Period' 'ultrasound of Baby' 'spina Bifida and Hydrocephalus' 'cross Claims for Contribution' 'summary Judgment' 'joinder of Defendant' 'amendment of Statement of Claim']

Case Brief

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Procedural Posture

Medical Negligence Proceedings Involving Applications for Extension of Limitation Period, Joinder, Amendment, Dismissal of Claims and Cross Claims / Interlocutory Notice of Motion Before Master Harrison

Legal Issues

  1. 1 ['Whether the limitation period should be extended against Hospital Corporation Australia Pty Limited for tort claims concerning the ultrasound.' 'Whether the proposed breach of contract claim against Hospital Corporation Australia Pty Limited was statute barred.' "Whether the plaintiffs satisfied the threshold in s 60I(1)(a)(iii) of the Limitation Act 1969 by being unaware of the connection between the personal injury and the third defendant's acts or omissions." 'Whether it was just and reasonable to extend the limitation period under s 60G of the Limitation Act 1969.' 'Whether ss 60C and 60E of the Limitation Act 1969 provided an alternative basis for extension.' 'Whether the cross claims against Hospital Corporation Australia Pty Limited were statute barred or required leave.']

Ratio Decidendi

The tort cause of action accrued when damage was suffered on Alexander's birth, not when the pregnancy could last have been terminated. The plaintiffs did not know before expiry of the limitation period the acts or omissions connecting Hospital Corporation Australia Pty Limited to the alleged injury, and only became aware in May 1999 that it may have been responsible for performing the ultrasound. They therefore satisfied the s 60I gateway. Although the passage of time gave rise to presumptive prejudice and the ultrasonographer's worksheet was missing, the films and videotape were available, the missing worksheet was not central to all allegations, and Hospital Corporation was put on...

Court Disposition

Extension of limitation period granted for tort claims against Hospital Corporation Australia Pty Limited; extension refused for breach of contract claims; leave granted to add Hospital Corporation Australia Pty Limited as third defendant and to file a further, further, further amended statement of claim; Hospital...

Orders

  • ['Leave is granted to extend the limitation period against the third defendant Hospital Corporation Australia Pty Limited in respect of tort claims concerning the ultrasound performed on 17 February 1992. Leave is not granted in relation to the claims relating to breach of contract against Hospital Corporation...