NEW SOUTH WALES MEDICAL DEFENCE UNION LTD and ANOR v GALE [1994] NSWCA 229

NEW SOUTH WALES MEDICAL DEFENCE UNION LTD v GALE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and SHELLER JJA 16 December 1994, 23 December 1994

[1994] NSWCA 229

LIMITATION OF ACTIONS — extension of time to sue — application made under s60G Limitation Act 1969 — whether "just and reasonable" to extend limitation period for the cause of action — patient allegedly injured by electroconvulsive and deep sleep therapy — electroconvulsive therapy allegedly administered despite assurances that it would not be — after such treatment, patient transferred to public hospital with severe pneumonia — patient alleges that she was unaware of the nature of her treatment or the wrongs done to her until eleven years later when such treatment was disclosed during a Royal Commission — shortly thereafter patient commences proceedings against estate of the medical practitioner in charge of her treatment — thereafter, upon discovery of difficulties in the medical practitioner's insurance, she seeks leave for extension of time and to proceed directly against the practitioner's alleged insurer under the Law Reform (Miscellaneous Provisions) Act 1946, s6 — primary judge (Badgery-Parker J) grants extension of time and leave to proceed — upon appeal arguing that the extension was not just and reasonable in the circumstances — held (dismissing the appeals): It was open to the primary judge to determine that it was "just and reasonable" in the circumstances to extend time for suing the estate of the medical practitioner and the alleged insurer — relevant considerations include unchallenged testimony that the patient was unaware of the nature of the treatment administered to her or that it was harmful until this was revealed much later during a Royal Commission — appeals dismissed. Dedousis v Water Board (1994) 125 ALR 193 (HC), referred to.