Knowles v Harper [2003] NSWSC 27

Knowles v Harper [2003] NSWSC 27

The plaintiff satisfied the s 60I(1)(a)(iii) gateway because, although she knew earlier that she had suffered infection and believed the defendant had done something wrong, she did not become aware until 23 August 2000 that the proper treatment was removal of the implants and that the defendant's failure to remove them was connected with her injury. The application was made within the relevant three-year period. Despite presumptive prejudice from the passage of time, the defendant showed no actual prejudice, relevant photographs and medical records were available, and the plaintiff had not delayed for forensic advantage. It was therefore just and reasonable to extend the limitation...

Jurisdiction
Australia
Judgment Date
10 February 2003
Procedural Posture
Alleged Medical Negligence Personal Injury Proceeding / Notice of Motion for Extension of Limitation Period to Commence Proceedings
Outcome
Leave granted to extend the limitation periods; plaintiff ordered to pay the defendant's costs.
Legal Topics
['extension of Limitation Period' 'sections 60 C and 60 E of the Limitation Act 1969 (nsw)' 'sections 60 G and 60 I of the Limitation Act 1969 (nsw)' 'alleged Negligent Breast Surgery' 'prejudice From Delay' 'fair Trial']
['civil Procedure' 'limitation of Actions' 'medical Negligence' 'personal Injury'] ['extension of Limitation Period' 'sections 60 C and 60 E of the Limitation Act 1969 (nsw)' 'sections 60 G and 60 I of the Limitation Act 1969 (nsw)' 'alleged Negligent Breast Surgery' 'prejudice From Delay' 'fair Trial']

Case Brief

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Procedural Posture

Alleged Medical Negligence Personal Injury Proceeding / Notice of Motion for Extension of Limitation Period to Commence Proceedings

Legal Issues

  1. 1 ['Whether it was just and reasonable to extend the limitation period under ss 60C and 60E of the Limitation Act 1969 (NSW).' "Whether the plaintiff satisfied the threshold in s 60I(1)(a)(iii) by being unaware of the connection between the personal injury and the defendant's act or omission until 23 August 2000." 'Whether delay caused prejudice such that a fair trial could not be conducted.']

Ratio Decidendi

The plaintiff satisfied the s 60I(1)(a)(iii) gateway because, although she knew earlier that she had suffered infection and believed the defendant had done something wrong, she did not become aware until 23 August 2000 that the proper treatment was removal of the implants and that the defendant's failure to remove them was connected with her injury. The application was made within the relevant three-year period. Despite presumptive prejudice from the passage of time, the defendant showed no actual prejudice, relevant photographs and medical records were available, and the plaintiff had not delayed for forensic advantage. It was therefore just and reasonable to extend the limitation...

Court Disposition

Leave granted to extend the limitation periods; plaintiff ordered to pay the defendant's costs.

Orders

  • ['Leave is granted to the plaintiff to extend the limitation period pursuant to ss 60G and I for the period from 17 August 1992 to 11 January 1994.' 'Leave is granted to the plaintiff to extend the limitation period pursuant to ss 60C and E from 11 January 1994 up to and including 11 January 2002.' "The plaintiff is...