BULLEY v COMMONWEALTH OF AUSTRALIA [1996] NSWCA 77

BULLEY v COMMONWEALTH OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and POWELL, JJA 25 October 1995, 31 January 1996

[1996] NSWCA 77

Limitation of Actions — Extension of time — Frank injury — To lumbo-sacral spine — Prolapsed discs with nerve root involvement — Possibility of future surgical intervention — Whether unaware of extent of injury.

Priestley JA Subject only to the comment made by Clarke JA, which I adopt, I agree with Powell JA.

Clarke JA I agree with the reasons and orders of Powell JA. I would only wish to add that, as I said in CRA Ltd v G Martignago and Anor; Costain Australia Ltd v G Martignago, (New South Wales Court of Appeal, 31 January 1996, unreported) the decision in FJ Walker Ltd v Webber (NSW Court of Appeal, 16 November 1989, unreported) is not directly relevant to the determination of questions involving s60I.

Powell JA Two questions have been argued on behalf of the Claimant on this application for leave to appeal from a Judgment delivered by Abadee J on 23 February 1995 when his Honour dismissed with costs an appeal from a Judgment delivered by Master Greenwood on 22nd September 1993 when the Master dismissed with costs an application which had been brought by the Claimant seeking an order extending the time within which the Claimant might bring proceedings against the Opponent seeking to recover damages for negligence. The two questions which have been argued are: 1. whether Abadee J erred in declining to admit into evidence an affidavit which had been sworn by the Claimant on 21st September 1993; and

2. whether his Honour erred in holding that, at the time of the expiration of the relevant limitation period, the Claimant was aware of the nature and extent of the injury which she claimed to have sustained as the result of the negligence which she alleged against the Opponent.