Suzanne Hardwick v Dr Patrick McSwiney [2009] NSWSC 522

Suzanne Hardwick v Dr Patrick McSwiney [2009] NSWSC 522

The plaintiff established a prima facie case of breach of duty and causation against Dr McSwiney, but not against Dr Chee. S60 C relief was not available because the court inferred actual damage was present by no later than the end of 2000, making an order under that section ineffective. The plaintiff satisfied S60 I because she was unaware of the relevant injury and its connection with Dr McSwiney's acts or omissions until within the required period, and there was no earlier time when proceedings might reasonably have been instituted. Because no actual prejudice was shown and a fair trial remained possible, it was just and reasonable to extend the limitation period against Dr McSwiney only.

Jurisdiction
Australia
Judgment Date
01 May 2009
Procedural Posture
Summons Seeking Extension of Time to Commence Personal Injury Medical Negligence Proceedings / Application Under S60 C or Alternatively S60 G of the Limitation Act 1969
Outcome
Limitation period extended against Dr McSwiney; summons dismissed against Dr Chee.
Legal Topics
['extension of Limitation Period' 'accrual of Cause of Action' 'medical Practitioner Duty of Care' 'causation' 'fair Trial and Prejudice']
['limitation Law' 'medical Negligence' 'personal Injury'] ['extension of Limitation Period' 'accrual of Cause of Action' 'medical Practitioner Duty of Care' 'causation' 'fair Trial and Prejudice']

Case Brief

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Procedural Posture

Summons Seeking Extension of Time to Commence Personal Injury Medical Negligence Proceedings / Application Under S60 C or Alternatively S60 G of the Limitation Act 1969

Legal Issues

  1. 1 ['Whether time should be extended under S60 C or S60 G of the Limitation Act 1969 to commence proceedings against the defendants.' 'Whether the plaintiff satisfied the requirements of S60 I of the Limitation Act 1969.' 'Whether there was a prima facie case of breach of duty and causation against Dr McSwiney.' 'Whether there was a prima facie case against Dr Chee.' 'Whether it was just and reasonable to extend the limitation period and whether a fair trial remained possible.']

Ratio Decidendi

The plaintiff established a prima facie case of breach of duty and causation against Dr McSwiney, but not against Dr Chee. S60 C relief was not available because the court inferred actual damage was present by no later than the end of 2000, making an order under that section ineffective. The plaintiff satisfied S60 I because she was unaware of the relevant injury and its connection with Dr McSwiney's acts or omissions until within the required period, and there was no earlier time when proceedings might reasonably have been instituted. Because no actual prejudice was shown and a fair trial remained possible, it was just and reasonable to extend the limitation period against Dr McSwiney only.

Court Disposition

Limitation period extended against Dr McSwiney; summons dismissed against Dr Chee.

Orders

  • ['I extend until 1 June 2009 the limitation period for the cause of action pleaded against Dr McSwiney in the draft Statement of Claim, annexure K to the affidavit of Suzanne Hardwick sworn herein on 17 December 2008.' 'I dismiss the summons against Dr Chee.' 'I order that the costs of the summons as between Mrs...