Lewicki v Hunter New England Local Health District [2020] NSWSC 1037

Lewicki v Hunter New England Local Health District [2020] NSWSC 1037

The cause of action was not discoverable by the plaintiff until receipt of the expert medical opinion in the Morris Report in November 2017, as knowledge of the connection between his injury and the defendants’ alleged fault could only be obtained through such expert evidence. Given no significant prejudice to the defendants and the serious nature of the injury, it is just and reasonable to extend the long-stop limitation period until November 2020 pursuant to s 62A of the Limitation Act 1969 (NSW).

Jurisdiction
Australia
Judgment Date
10 August 2020
Procedural Posture
Application for Extension of Limitation Period in Medical Negligence Proceedings / Interlocutory Application Determined by Judgment
Outcome
Application granted. The 12 year long-stop limitation period is extended until November 2020.
Legal Topics
['extension of Limitation Period' 'discoverability of Cause of Action' 'waiver of Privilege' 'prejudice to Defendant From Delay']
['medical Negligence' 'limitation of Actions' 'civil Procedure' 'legal Professional Privilege'] ['extension of Limitation Period' 'discoverability of Cause of Action' 'waiver of Privilege' 'prejudice to Defendant From Delay']

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Procedural Posture

Application for Extension of Limitation Period in Medical Negligence Proceedings / Interlocutory Application Determined by Judgment

Legal Issues

  1. 1 ['Whether it is just and reasonable to extend the 12 year long-stop limitation period under the Limitation Act 1969 (NSW) s 62A for the plaintiff’s medical negligence claim' "When the cause of action was 'discoverable' by the plaintiff within the meaning of Limitation Act 1969 (NSW) s 50D" 'Whether privilege has been waived over certain solicitor-expert communications']

Ratio Decidendi

The cause of action was not discoverable by the plaintiff until receipt of the expert medical opinion in the Morris Report in November 2017, as knowledge of the connection between his injury and the defendants’ alleged fault could only be obtained through such expert evidence. Given no significant prejudice to the defendants and the serious nature of the injury, it is just and reasonable to extend the long-stop limitation period until November 2020 pursuant to s 62A of the Limitation Act 1969 (NSW).

Court Disposition

Application granted. The 12 year long-stop limitation period is extended until November 2020.

Orders

  • ['The plaintiff shall bring in short minutes of order reflecting this judgment within 7 days of its publication.' 'The 12 year long-stop limitation period is extended to November 2020 pursuant to s 62A of the Limitation Act 1969 (NSW).' 'Costs are reserved.']