Doberer v Mid Western Area Health Service & Anor [2003] NSWSC 112

Doberer v Mid Western Area Health Service & Anor [2003] NSWSC 112

Although there was no evidence of actual prejudice and some medical opinion supported that the plaintiff had a real, though not strong, case, the plaintiff had not discharged her onus of showing that it was just and reasonable to extend time because the court found that shortly after the operation she was aware that Dr Porges had operated on her, and her solicitor had also identified him as the doctor who operated on her in October 2001.

Jurisdiction
Australia
Judgment Date
04 March 2003
Procedural Posture
Application to Extend Limitation Period and Add a Proposed Second Defendant in Personal Injury Professional Negligence Proceedings / Notice of Motion Filed 22 April 2002; Decision on Extension of Time Application
Outcome
The plaintiff's application to extend the limitation period against the proposed second defendant was refused, with costs payable by the plaintiff.
Legal Topics
['extension of Limitation Period' 'joinder of Proposed Defendant' 'hand Operation' 'complex Regional Pain Syndrome' 'prejudice From Delay']
['civil Procedure' 'limitation of Actions' 'medical Negligence' 'personal Injury'] ['extension of Limitation Period' 'joinder of Proposed Defendant' 'hand Operation' 'complex Regional Pain Syndrome' 'prejudice From Delay']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Extend Limitation Period and Add a Proposed Second Defendant in Personal Injury Professional Negligence Proceedings / Notice of Motion Filed 22 April 2002; Decision on Extension of Time Application

Legal Issues

  1. 1 ["Whether it was just and reasonable under ss 60C and 60E of the Limitation Act 1969 (NSW) to extend the limitation period for the plaintiff's cause of action against the proposed second defendant." "Whether the plaintiff's delay was explained by lack of knowledge that Dr Porges performed the operation." 'Whether the delay caused prejudice to the proposed second defendant.' 'Whether the plaintiff had a real case to advance against the proposed second defendant.']

Ratio Decidendi

Although there was no evidence of actual prejudice and some medical opinion supported that the plaintiff had a real, though not strong, case, the plaintiff had not discharged her onus of showing that it was just and reasonable to extend time because the court found that shortly after the operation she was aware that Dr Porges had operated on her, and her solicitor had also identified him as the doctor who operated on her in October 2001.

Court Disposition

The plaintiff's application to extend the limitation period against the proposed second defendant was refused, with costs payable by the plaintiff.

Orders

  • ["The plaintiff's application to extend the limitation period for a cause of action which arose on 28 September 1997 against the second defendant up to and including 22 April 2002 is refused." "The plaintiff is to pay the defendant's costs as agreed or assessed."]