Booth v AE & EM Kiel Pty Ltd [2012] NSWDC 71

Booth v AE & EM Kiel Pty Ltd [2012] NSWDC 71

The defendant did not establish that the plaintiff's cause of action was discoverable within the 3-year limitation period, as his injury was not sufficiently serious to justify legal action until after that time. The plaintiff acted reasonably and only discovered the requisite seriousness to commence proceedings after the limitation period expired, following medical advice and subsequent surgery.

Jurisdiction
Australia
Judgment Date
21 May 2012
Procedural Posture
Civil / Interlocutory Application for Dismissal of Statement of Claim and to Strike Out Limitation Bar in Defence
Outcome
Defendant's notice of motion dismissed. Paragraph 8 of the defence struck out. Costs awarded to plaintiff.
Legal Topics
['reasonable Cause of Action' 'discoverability' 'limitation Period' 'personal Injury' 'dismissal Application']
['limitation of Actions' 'civil Procedure'] ['reasonable Cause of Action' 'discoverability' 'limitation Period' 'personal Injury' 'dismissal Application']

Case Brief

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Procedural Posture

Civil / Interlocutory Application for Dismissal of Statement of Claim and to Strike Out Limitation Bar in Defence

Legal Issues

  1. 1 ["Whether the plaintiff's cause of action was discoverable within the meaning of s 50C of the Limitation Act 1969 prior to expiry of the limitation period" 'Whether the statement of claim should be struck out for disclosing no reasonable cause of action due to being statute barred' 'Whether the defence pleading a limitation bar should be dismissed']

Ratio Decidendi

The defendant did not establish that the plaintiff's cause of action was discoverable within the 3-year limitation period, as his injury was not sufficiently serious to justify legal action until after that time. The plaintiff acted reasonably and only discovered the requisite seriousness to commence proceedings after the limitation period expired, following medical advice and subsequent surgery.

Court Disposition

Defendant's notice of motion dismissed. Paragraph 8 of the defence struck out. Costs awarded to plaintiff.

Orders

  • ["The notice of motion filed by the defendant on 6 November 2011 seeking dismissal of the plaintiff's statement of claim pursuant to UCPR Pt 13 r 13.4(b), is dismissed." 'Paragraph 8 of the defence filed on 8 February 2011 pleading a limitation bar, is struck out.' "The defendant is to pay the plaintiff's costs of...