Tran v Au-Yong; Tran v Au [2008] NSWSC 396

Tran v Au-Yong; Tran v Au [2008] NSWSC 396

The plaintiff failed to discharge the onus of showing that it was just and reasonable to extend time. Although he had serious injuries and cognitive defects, he knew by early 2000 of his loss of vision and believed that earlier medical investigation and CT scanning by the doctors or hospital would have avoided it. His explanation for the long delay was unreliable, and his failure to ensure that his solicitors pursued the persons he blamed showed a lack of forensic diligence. After nearly eight years, the defendants would suffer forensic prejudice because they would largely have to rely on notes and usual practice, while the plaintiff's recall of significant events was unreliable; in those...

Jurisdiction
Australia
Judgment Date
02 May 2008
Procedural Posture
Application by Notices of Motion to Extend Limitation Period for Personal Injury Medical Negligence Proceedings / Procedural Ruling on Extension of Limitation Period Under Ss 60 C and 60 E of the Limitation Act 1969
Outcome
The applications to extend the limitation period were dismissed, and the plaintiff was ordered to pay the defendants' costs in both proceedings as agreed or assessed.
Legal Topics
['extension of Limitation Period' 'just and Reasonable Test' 'forensic Prejudice' 'delay' 'knowledge of Injury and Connection With Alleged Acts or Omissions']
['limitations of Actions' 'personal Injury' 'medical Negligence' 'civil Procedure'] ['extension of Limitation Period' 'just and Reasonable Test' 'forensic Prejudice' 'delay' 'knowledge of Injury and Connection With Alleged Acts or Omissions']

Case Brief

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Procedural Posture

Application by Notices of Motion to Extend Limitation Period for Personal Injury Medical Negligence Proceedings / Procedural Ruling on Extension of Limitation Period Under Ss 60 C and 60 E of the Limitation Act 1969

Legal Issues

  1. 1 ["Whether the limitation period for the plaintiff's proposed medical negligence claims should be extended under ss 60C and 60E of the Limitation Act 1969." 'Whether the plaintiff had adequately explained the delay in commencing proceedings nearly eight years after the causes of action arose and just less than five years after expiry of the limitation period.' 'Whether the delay caused prejudice to the defendants such that a fair trial would not be available.' "When the plaintiff knew of his injury, its nature and extent, and the connection between the injury and the defendants' alleged acts or omissions."]

Ratio Decidendi

The plaintiff failed to discharge the onus of showing that it was just and reasonable to extend time. Although he had serious injuries and cognitive defects, he knew by early 2000 of his loss of vision and believed that earlier medical investigation and CT scanning by the doctors or hospital would have avoided it. His explanation for the long delay was unreliable, and his failure to ensure that his solicitors pursued the persons he blamed showed a lack of forensic diligence. After nearly eight years, the defendants would suffer forensic prejudice because they would largely have to rely on notes and usual practice, while the plaintiff's recall of significant events was unreliable; in those...

Court Disposition

The applications to extend the limitation period were dismissed, and the plaintiff was ordered to pay the defendants' costs in both proceedings as agreed or assessed.

Orders

  • ['In proceedings 20297/2007 the notice of motion filed 4 September 2007 is dismissed.' 'In proceedings 20361/2007 the notice of motion filed 22 April 2008 is dismissed.' "The plaintiff is to pay the defendants' costs in both proceedings as agreed or assessed."]