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HEALTH & MEDICAL CASE LAW

2. Extension of Time Applications, Interim Damages,  Costs Orders and other Procedural matters (Medical Negligence).

Application to have proceedings moved interstate

Kok v Sheppard [2009] NSWSC 1262

PROCEDURE – application by defendants to have proceedings for  medical negligence  removed to Queensland – plaintiff commenced proceedings in New South Wales – whether Queensland more appropriate forum.
Order: that the proceedings be moved to QLD.

Extension of Time Applications (Medical Negligence)

Edwards v Kennedy & Ors [2009] VSC 74 (12 March 2009)

LIMITATIONS OF ACTIONS – Application for extension of time within which to bring action – Personal injury claim – Alleged  medical negligence by practitioners endorsing gender reassignment operation – Long period of delay – Failure of plaintiff to call witnesses to support explanation – Prejudice to defendants – Seriousness of injury and of alleged negligence – Exercise of discretion – Limitation of Actions Act 1958 (Vic) s 27K, L.

Decision: Plaintiff’s summons dated 19 August 2008, applying for an extension of time of the period of limitation applicable to his cause of action, be dismissed.

Spandideas v Vellar [2008] VSC 198 (06.06.08)

LIMITATION OF ACTIONS – Medical Negligence – Whether limitation period had expired – When cause of action discoverable under s 27F of Limitation of Actions Act 1958 – Meaning of “fault” in s 27F(1)(b) – Whether limitation period should be extended under ss 27K, 27L.

Plaintiff was granted an extension of time.

Tran v Au-Yong; Tran v Au [2008] NSWSC 396 (02.05.08)

EXTENSIONS of limitation period - ss 60C & 60E. By notices of motion filed in both proceedings the plaintiff seeks to extend the time in which to commence proceedings as against the defendants pursuant to ss 60C and 60E of the Limitation Act 1969 in relation to medical advice and treatment he received following an assault that occurred on 5 September 1999. Judgment for the defendants; plaintiff's notices of motion dismissed.

PELL v HODGES  [2007] NSWCA 234 

TORTS –  MEDICAL NEGLIGENCE  – FAILURE TO WARN – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD
PROCEDURE – STATEMENT OF CLAIM – EXTENSION OF TIME FOR SERVICE – EXPIRATION OF LIMITATION PERIOD – EXERCISE OF DISCRETION
The respondent issued a statement of claim against the appellant for  medical negligence  shortly before the limitation period expired but did not serve it before it ceased to be valid after 4 months. She applied for an extension under UCP 1.12 sixteen months later. The primary judge granted the application because the respondent had a legitimate interest in the prosecution of her claim.

HELD:
1. The discretion to grant an extension of time under UCP 1.12 is unfettered. The defendant did not have a prima facie right to retain the benefit of the expiry of the limitation period, nor did the plaintiff have a prima facie right to an extension because of a legitimate interest in the prosecution of her case. The primary judge erred by not giving reasons why, on balance, the interest of the plaintiff outweighed that of the defendant.
Tolcher v Gordon [2005] NSWCA 135, 53 ACSR 442, applied.

2. The Court of Appeal therefore had to re-exercise the discretion.

3. A relevant factor was the unexplained delays in not filing the statement of claim until shortly before the expiry of the limitation period and in failing to serve it or to apply for an extension of time before it expired. An inference was available that there were deliberate decisions at various times not to proceed with the claim.

4. An extension of time should be refused.
DECISION:
1. Appeal allowed with costs
2. Decision of Latham J of 22 June set aside
3. In lieu thereof order that the Notice of Motion of 14 March 2006 be dismissed with costs, and that orders be made in accordance with prayers 1 and 2 of the Notice of Motion of 6 April 2006
4. The respondent to have a certificate under the Suitors Fund Act for the costs of the appeal

Azshion v North Coast Area Health Service [2006] NSWSC 769
Applications re limitations and extension of time, action for false imprisonment, whether action for breach of duty s18A Limitation Act, 3 year limitation, application to extend time, plaintiff under disability (mental illness) for part of period, previous refusal to extend time for another cause of action (negligence). Judgment of: Kirby J.
                   Orders:
1. That the plaintiff be given an extension of time in respect of the remaining causes of action until 1 January 2004.
2. That the name of the defendant be amended from Northern Rivers Area Health Service to North Coast Area Health Service.
3. That the defendant be given leave to file an Amended Defence, raising justification (and providing appropriate particulars).
4. That costs be reserved.

Boardman Ors v State of Tasmania Ors [2006] TASSC 49 (19 June 2006)
The claim is that the first plaintiff, Joshua Boardman, suffered permanent injury, namely, severe brain damage and spastic quadriplegia as a result of the negligence of the defendants during the course of his presentation and admission at the Mersey Community Hospital on 2 July 1997. Limitation of Actions - Postponement of the bar - Extension of period - Cause of action in respect of personal injuries - Principles upon which discretion exercised. Wrongs Act 1954 (Tas), s3(6).

McMahon Anor v South Eastern Sydney Area Health Service Anor [2004] NSWSC 442 (26 May 2004)
Extension of time to commence proceedings, ss 60C & E Limitation Act

Withdrawal of Offer of Compromise

Spring v Sydney South West Area Health Service [2009] NSWSC 420 (14 May 2009)

This is an application under the Uniform Civil Procedure Rules 2005 20.26, seeking an order that an offer made by the defendant in the principal proceedings be permitted to be withdrawn. As it happens, it was accepted during its currency but this is no impediment to make the order if it is otherwise appropriate.

DECISION:
The defendant is granted leave to withdraw the offer of compromise served on the plaintiff on 9 April 2009.
The withdrawal of the offer of compromise takes effect from 1 May 2009.
Costs to be costs in the cause

Interim Damages

Hardwick v McSwiney (No 3) [2010] NSWSC 3

PRACTICE AND PROCEDURE – Civil Procedure Act 2005 – application for interim payment – medical negligence – failure to follow up after surgery for excision of suspicious tongue lesion – competing expert medical evidence on the acceptability or otherwise of the treatment provided - whether a comparison of the plaintiff's claim and the defence permitted a conclusion (i.e. satisfaction) that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant – where not possible to be satisfied – order refused.

SLATTERY (BY NEXT FRIEND LOWCAY) v BROOKES ORS [2006] SASC 137 (17 May 2006)
Plaintiff seeking interim assessment of damages under s 30B of the Supreme Court Act - held under R 75.02 a Master could refer an action for trial on the limited issues of liability and an interim assessment where the plaintiff was not ready for a trial for a final assessment of damages.

Costs Orders (Medical Negligence)

South Eastern Sydney Area Health Service Anor v King (No 2) [2006] NSWCA 73 (13 April 2006)
After the defendants’ notice of appeal was filed, and after the plaintiff/respondent had filed a notice of contention and a cross-appeal, she made an offer of compromise to settle the appeal and the cross-appeal. The date for acceptance of that offer expired before the Uniform Civil Procedure Rules (UCPR) commenced. The defendants’ appeal was dismissed and the plaintiff’s cross-appeal was upheld after the UCPR commenced. The plaintiff/respondent sought an order for indemnity costs.
Amendment of Statement of Claim

JEFFREY -v- WITHEROW ANOR [2006] WASCA 4 (20 January 2006)
Practice and procedure - Application to amend pleading close to trial - Balance of justice favoured applicant - Scope and effect of O 20 r 2(2) and (3) - Applicability of Weldon and Neal principle. The appellant sought leave to appeal and to appeal from the decision of Fenbury DCJ made on 4 November 2005 refusing her application to amend her statement of claim in a medical negligence action against the first and second respondents, both of whom are orthopaedic surgeons.

Adam Todd & Anor v State of NSW & Ors  [2007] NSWSC 751 
PROCEDURE - UCPR 14.28 - Applications to Strike Out Amended Statement of Claim - Application by plaintiffs to join a party - Prolix and repetitious pleadings.
 

Cross-Examination Foregone

Sharman v Boshell [2005] NSWCA 476
Negligence - Failed sterilisation procedure - Trial Judge's findings of fact - Reliance upon absence of testing by cross-examination when cross-examination forgone - Failure to consider all the evidence - Reasons.

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