Chown v Upjohn & Anor [2000] NSWSC 1218

Chown v Upjohn & Anor [2000] NSWSC 1218

Although the plaintiff satisfied the s 60I gateway, the notice of motion filed on 31 August 1993 was an application within Sch 5 cl 4(4)(b), and the plaintiff established an arguable claim, she did not discharge the burden of showing that it was just and reasonable to extend the limitation periods. The long delay caused significant prejudice to the defendants in investigating and defending causation and liability, including loss of witnesses, records, films and the ability to address warnings, promotion and PBS listing, so a fair trial was unlikely.

Jurisdiction
Australia
Judgment Date
20 December 2000
Procedural Posture
Application for Extension of Time to Pursue Negligence Causes of Action for Personal Injury / Notice of Motion
Outcome
Notice of motion dismissed, costs reserved.
Legal Topics
['extension of Limitation Period' 'latent Injuries' 'just and Reasonable Discretion' 'prejudice From Delay' 'depo Medrol' 'arachnoiditis']
['limitation of Actions' 'personal Injury' 'negligence' 'product Liability'] ['extension of Limitation Period' 'latent Injuries' 'just and Reasonable Discretion' 'prejudice From Delay' 'depo Medrol' 'arachnoiditis']

Case Brief

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Procedural Posture

Application for Extension of Time to Pursue Negligence Causes of Action for Personal Injury / Notice of Motion

Legal Issues

  1. 1 ['Whether the plaintiff satisfied the requirements of s 60I of the Limitation Act for discretionary relief in respect of latent injuries.' 'Whether the filing of the notice of motion on 31 August 1993 amounted to making an application within Sch 5 cl 4(4)(b) of the Limitation Act.' 'Whether the plaintiff had shown an arguable and viable negligence claim against the first and second defendants.' 'Whether, having regard to delay and prejudice to the defendants, it was just and reasonable under s 60G(2) of the Limitation Act to extend the limitation periods.']

Ratio Decidendi

Although the plaintiff satisfied the s 60I gateway, the notice of motion filed on 31 August 1993 was an application within Sch 5 cl 4(4)(b), and the plaintiff established an arguable claim, she did not discharge the burden of showing that it was just and reasonable to extend the limitation periods. The long delay caused significant prejudice to the defendants in investigating and defending causation and liability, including loss of witnesses, records, films and the ability to address warnings, promotion and PBS listing, so a fair trial was unlikely.

Court Disposition

Notice of motion dismissed, costs reserved.

Orders

  • ['Notice of motion dismissed.' 'Question of costs reserved.']