BAILEY v OSWALD [1990] NSWCA 17

BAILEY v OSWALD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, CLARKE and MEAGHER JJA 19, 20 and 21 March 1990, 25 May 1990

[1990] NSWCA 17

LIMITATION OF ACTIONS — extension of period — statutory requirements — personal injury case — claimant's knowledge of relevant material facts — whether a reasonable person ought to have brought an action before the critical date — claimant injured in hospital to which she was admitted by a medical practitioner — claimant knew that an accident or mistake had occurred in the hospital and suspected that the medical practitioner was liable — no proceedings commenced until after expiry of limitation period — claimant asserts that "material fact of a decisive character" missing from her knowledge was knowledge of the relationship between the medical practitioner and the hospital — sues in false imprisonment, assault and negligence — Master Allen extends time — appeal to McInerney J dismissed — further appeal (by leave) to the Court of Appeal — held: (1) Absence of knowledge of a cause of action was not a "material fact of a decisive character". Do Carmo v Ford Excavation Pty Ltd (1984) 154 CLR 234 applied; (2) (Meagher JA dissenting) But absence of knowledge of the medical practitioner's relationship with the hospital was of that character. Ellis y The Wallsend District Hospital (1989) 17 NSWLR 553 referred to; (3) (Meagher JA dissenting) On the findings below, the Court should not disturb the conclusion that, having regard to the respondent's circumstances, she had taken all reasonable steps to ascertain the facts.

LAW REFORM — Limitation Act 1969 s57, s58 — per Meagher JA; "The Court is constrained to construe the barely comprehensible words of those sections. It is not so much an occasion for explaining the elliptical and expounding the unexpressed as propounding the obscure and reconciling the contradictory".