Owen v Rogers [2004] NSWSC 1097

Owen v Rogers [2004] NSWSC 1097

The plaintiff did not become aware of the nature and extent of her injury, or of the connection of the defendant’s acts or omissions to her injury, until October 2002 when she received advice from an independent specialist. The plaintiff has provided a reasonable explanation for the delay and discharged the onus regarding prejudice. It is just and reasonable to extend the limitation period and permit amendment of the statement of claim, except as to particulars reliant on unavailable manufacturer's information.

Parties
Plaintiff: Jennifer Marie Owen; Defendant: Dr Christopher Rogers
Jurisdiction
Australia
Judgment Date
19 November 2004
Procedural Posture
Professional Negligence (medical) / Interlocutory Application for Extension of Limitation Period and Amendment of Statement of Claim
Outcome
Extension of limitation period granted; partial leave to amend statement of claim; costs reserved.
Legal Topics
Limitation of Actions, Medical Negligence, Extension of Limitation Period, Amendment of Pleadings
Tort Law Civil Procedure Limitation of Actions Medical Negligence Extension of Limitation Period Amendment of Pleadings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Jennifer Marie Owen

Plaintiff

Dr Christopher Rogers

Defendant

Procedural Posture

Professional Negligence (medical) / Interlocutory Application for Extension of Limitation Period and Amendment of Statement of Claim

Legal Issues

  1. 1 Whether the plaintiff should be granted an extension of the limitation period pursuant to s 60C of the Limitation Act 1969
  2. 2 Whether leave should be granted to amend the statement of claim to include additional particulars of negligence

Ratio Decidendi

The plaintiff did not become aware of the nature and extent of her injury, or of the connection of the defendant’s acts or omissions to her injury, until October 2002 when she received advice from an independent specialist. The plaintiff has provided a reasonable explanation for the delay and discharged the onus regarding prejudice. It is just and reasonable to extend the limitation period and permit amendment of the statement of claim, except as to particulars reliant on unavailable manufacturer's information.

Court Disposition

Extension of limitation period granted; partial leave to amend statement of claim; costs reserved.

Orders

  • Order that the plaintiff be granted an extension of the limitation period pursuant to s 60C of the Limitation Act 1969 up until the date of the filing of the ordinary statement of claim on 8 October 2002.
  • Leave granted to the plaintiff to amend the statement of claim in the form of the amended statement of claim last filed and initialled by the judge save for the deletion of para 10C(k) and the omission from para 10C(n) of the words 'from at least the information provided by the manufacturer of the machine to be used...