Thomas v Glaxo Australia [1999] NSWSC 282

Thomas v Glaxo Australia [1999] NSWSC 282

The Master erred in concluding no evidence was available to establish a cause of action against the second and third defendants; the onus regarding prejudice and records is for defendants to adduce evidence. An extension of time for claims against Dr. Graham and Dr. Geddes should be granted, subject to proper pleading, but no extension as against Glaxo Australia Limited.

Parties
Plaintiff: Patricia Mary Thomas; First Defendant: Glaxo Australia Limited; Second Defendant: Dr. Edmund Graham; Third Defendant: Dr. Peter J. Geddes
Jurisdiction
Australia
Judgment Date
01 April 1999
Procedural Posture
Appeal From Master's Decision / Judgment on Appeal
Outcome
Appeal dismissed as against first defendant; appeal allowed as against second and third defendants. Extension of time for action against second and third defendants granted, subject to filing amended statement of claim; claim against first defendant dismissed.
Legal Topics
Extension of Limitation Period, Negligence, Failure to Warn, Prejudice in Delayed Litigation
Product Liability Medical Negligence Limitation of Actions Extension of Limitation Period Negligence Failure to Warn Prejudice in Delayed Litigation

Case Brief

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Parties

Patricia Mary Thomas

Plaintiff

Glaxo Australia Limited

First Defendant

Dr. Edmund Graham

Second Defendant

Dr. Peter J. Geddes

Third Defendant

Procedural Posture

Appeal From Master's Decision / Judgment on Appeal

Legal Issues

  1. 1 Whether extension of time to bring action for personal injuries should be granted under s60G of the Limitation Act 1969
  2. 2 Whether there is evidence to establish a prima facie case against the defendants
  3. 3 Whether prejudice would result from granting extension

Ratio Decidendi

The Master erred in concluding no evidence was available to establish a cause of action against the second and third defendants; the onus regarding prejudice and records is for defendants to adduce evidence. An extension of time for claims against Dr. Graham and Dr. Geddes should be granted, subject to proper pleading, but no extension as against Glaxo Australia Limited.

Court Disposition

Appeal dismissed as against first defendant; appeal allowed as against second and third defendants. Extension of time for action against second and third defendants granted, subject to filing amended statement of claim; claim against first defendant dismissed.

Orders

  • Notice of Motion dismissed as against the first defendant.
  • Pursuant to s60G of Limitation Act 1969, time extended for bringing action against second and third defendants up to 23 June 1995, subject to filing amended statement of claim within 28 days, re-pleading and properly separating allegations.