Hoult v Gilbert & Anor; Illawarra Area Health Service v Gilbert & Ors [2002] NSWCA 121

Hoult v Gilbert & Anor; Illawarra Area Health Service v Gilbert & Ors [2002] NSWCA 121

The s 60I gateway provisions had to be satisfied in respect of each proposed defendant. Ms Gilbert could not satisfy s 60I in respect of Dr Hoult because she knew she had suffered injury, knew its nature and extent, believed from the beginning that Dr Hoult was negligent, and understood the 1993 report as indicating his negligence. By contrast, in relation to Illawarra Area Health Service, the effect of the Master's decision was that s 60I(1)(a)(iii) was satisfied, and there was evidence capable of supporting a real case that the hospital owed a non-delegable duty of care for Ms Gilbert's care and treatment as a public patient admitted pending childbirth. Dr Hoult's appeal was therefore...

Jurisdiction
Australia
Judgment Date
13 May 2002
Procedural Posture
Negligence; Medical Negligence; Application for Extension of Limitation Period / Applications for Leave to Appeal and Appeals From Bryson J's Dismissal of Appeals From Master Harrison Extending Time to Commence Proceedings
Outcome
Leave to appeal granted in both appeals; appeal 40365/01 allowed with costs; appeal 40372/01 dismissed with costs.
Legal Topics
['non Delegable Duty of Care' 'extension of Time' 'limitation Act 1969 (nsw)' 'section 60 I Gateway Provisions' 'multiple Defendants' 'principle in Briggs V James Hardie & Co Pty Ltd']
['negligence' 'medical Negligence' 'limitation of Actions' 'civil Procedure'] ['non Delegable Duty of Care' 'extension of Time' 'limitation Act 1969 (nsw)' 'section 60 I Gateway Provisions' 'multiple Defendants' 'principle in Briggs V James Hardie & Co Pty Ltd']

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Procedural Posture

Negligence; Medical Negligence; Application for Extension of Limitation Period / Applications for Leave to Appeal and Appeals From Bryson J's Dismissal of Appeals From Master Harrison Extending Time to Commence Proceedings

Legal Issues

  1. 1 ['Whether the s 60I gateway provisions had to be satisfied in respect of each proposed defendant.' 'Whether Ms Gilbert satisfied s 60I in respect of Dr Hoult.' 'Whether Ms Gilbert satisfied s 60I in respect of Illawarra Area Health Service.' 'Whether there was evidence capable of establishing negligence against Illawarra Area Health Service, including by reason of a non-delegable duty of care.' 'Whether the principle in Briggs v James Hardie & Co Pty Ltd applied to the extension of time application.']

Ratio Decidendi

The s 60I gateway provisions had to be satisfied in respect of each proposed defendant. Ms Gilbert could not satisfy s 60I in respect of Dr Hoult because she knew she had suffered injury, knew its nature and extent, believed from the beginning that Dr Hoult was negligent, and understood the 1993 report as indicating his negligence. By contrast, in relation to Illawarra Area Health Service, the effect of the Master's decision was that s 60I(1)(a)(iii) was satisfied, and there was evidence capable of supporting a real case that the hospital owed a non-delegable duty of care for Ms Gilbert's care and treatment as a public patient admitted pending childbirth. Dr Hoult's appeal was therefore...

Court Disposition

Leave to appeal granted in both appeals; appeal 40365/01 allowed with costs; appeal 40372/01 dismissed with costs.

Orders

  • ['In appeal 40365/01, leave to appeal granted and the appeal allowed with costs.' "The opponent/respondent is to bear the claimant/appellant's separate costs of the application before Master Harrison and the separate costs of the appeal to Bryson J." "The opponent/respondent to have a certificate under the Suitors'...