GILMORE v QUITTNER [2011] NSWSC 809

GILMORE v QUITTNER [2011] NSWSC 809

The Amended Notice of Motion was dismissed because the applicant failed to satisfy the statutory criteria for extending the limitation periods. The Court found that by at least March 2005, and probably by 2004, the applicant knew the facts concerning his Hepatitis C diagnosis, the alleged injury and damage, and the alleged connection between failure to investigate or treat Hepatitis C and his claimed conditions. The substantial delay was not adequately explained. Independently, it was not just and reasonable to extend time because the applicant had not produced evidence establishing the scope of duty, breach or causation against either Dr Waugh or Dr Barr, and had not shown a viable cause...

Jurisdiction
Australia
Judgment Date
02 August 2011
Procedural Posture
Medical Negligence Proceedings; Interlocutory Application for Extension of Limitation Periods / Amended Notice of Motion Seeking Orders Under the Limitation Act 1969 to Extend Limitation Periods and Join Specialist Medical Practitioners
Outcome
The Amended Notice of Motion seeking orders under the Limitation Act 1969 extending the limitation periods was dismissed.
Legal Topics
['extension of Limitation Periods' 'personal Injury Claim Founded on Negligence or Breach of Duty' 'gateway Provisions Under S.60 E(1) and S.60 I(1) of the Limitation Act 1969' 'just and Reasonable Test' 'duty of Care, Breach and Causation' 'viable Cause of Action']
['limitation of Actions' 'torts' 'medical Negligence' 'civil Procedure'] ['extension of Limitation Periods' 'personal Injury Claim Founded on Negligence or Breach of Duty' 'gateway Provisions Under S.60 E(1) and S.60 I(1) of the Limitation Act 1969' 'just and Reasonable Test' 'duty of Care, Breach and Causation' 'viable Cause of Action']

Case Brief

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Procedural Posture

Medical Negligence Proceedings; Interlocutory Application for Extension of Limitation Periods / Amended Notice of Motion Seeking Orders Under the Limitation Act 1969 to Extend Limitation Periods and Join Specialist Medical Practitioners

Legal Issues

  1. 1 ['Whether the applicant satisfied the statutory criteria under s.60E(1) of the Limitation Act 1969 for an extension of time in respect of Dr Barr.' 'Whether the applicant satisfied the gateway requirements under s.60I(1) of the Limitation Act 1969 for an extension of time in respect of Dr Waugh.' "Whether the applicant was unaware, until within the relevant period, of the connection between his personal injury and the respondents' alleged acts or omissions." 'Whether it was just and reasonable to extend the limitation periods having regard to delay, prejudice and the availability of evidence supporting a viable cause of action.' 'Whether the evidence supported allegations of duty, breach and causation against Dr Waugh or Dr Barr in relation to investigation or treatment of Hepatitis C.']

Ratio Decidendi

The Amended Notice of Motion was dismissed because the applicant failed to satisfy the statutory criteria for extending the limitation periods. The Court found that by at least March 2005, and probably by 2004, the applicant knew the facts concerning his Hepatitis C diagnosis, the alleged injury and damage, and the alleged connection between failure to investigate or treat Hepatitis C and his claimed conditions. The substantial delay was not adequately explained. Independently, it was not just and reasonable to extend time because the applicant had not produced evidence establishing the scope of duty, breach or causation against either Dr Waugh or Dr Barr, and had not shown a viable cause...

Court Disposition

The Amended Notice of Motion seeking orders under the Limitation Act 1969 extending the limitation periods was dismissed.

Orders

  • ['The Amended Notice of Motion is dismissed.' "Unless it is indicated within 14 days that the applicant wishes to make submissions otherwise, the applicant is to pay the respondents' costs of the application on the ordinary basis."]