Waldron v Joondalup Hospital Pty Ltd [2018] NSWCA 182

Waldron v Joondalup Hospital Pty Ltd [2018] NSWCA 182

The applicant was not actually aware prior to the expiry of the limitation period that her injury was attributable to Joondalup Hospital, as Dr Vinen’s report lacked causation; upon receipt of Dr Flecknoe-Brown’s report, the applicant ought reasonably to have become aware of attributability, satisfying the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 August 2018
Procedural Posture
Application for Leave to Appeal (interlocutory Appeal in Civil Proceedings for Extension of Time) / Leave to Appeal and Substantive Appeal Heard Concurrently at NSW Court of Appeal
Outcome
Appeal allowed; original order set aside; extension of time granted
Legal Topics
['limitation of Actions' 'extension of Time' 'negligence' 'discoverability' 'causation' 'awareness of Attributability']
['civil Procedure' 'personal Injury'] ['limitation of Actions' 'extension of Time' 'negligence' 'discoverability' 'causation' 'awareness of Attributability']

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Procedural Posture

Application for Leave to Appeal (interlocutory Appeal in Civil Proceedings for Extension of Time) / Leave to Appeal and Substantive Appeal Heard Concurrently at NSW Court of Appeal

Legal Issues

  1. 1 ['Whether the applicant was not aware, as at 26 July 2014, that her injury was attributable to the conduct of Joondalup Hospital for the purposes of s 39(3) of the Limitation Act 2005 (WA)' 'Whether the applicant satisfied s 39(4)(b) of the Limitation Act 2005 (WA)—i.e., whether she became aware or ought reasonably to have become aware that her injury was attributable to Joondalup Hospital within three years before commencing proceedings']

Ratio Decidendi

The applicant was not actually aware prior to the expiry of the limitation period that her injury was attributable to Joondalup Hospital, as Dr Vinen’s report lacked causation; upon receipt of Dr Flecknoe-Brown’s report, the applicant ought reasonably to have become aware of attributability, satisfying the requirements of s 39(3) and (4) of the Limitation Act 2005 (WA). Therefore, the extension of time for commencement of the action should be allowed until 24 February 2017.

Court Disposition

Appeal allowed; original order set aside; extension of time granted

Orders

  • ['Grant leave to the applicant to appeal from the decision of Harrison AsJ made on 13 December 2017.' 'Direct the applicant to file a notice of appeal in the form of the draft notice of appeal within seven days.' 'Allow the appeal.' 'Set aside Order 1 by Harrison AsJ on 13 December 2017.' "Order that pursuant to s...