GILBERT v ILLAWARRA AREA HEALTH SERVICE [2001] NSWSC 323

New South Wales Supreme Court

CITATION : GILBERT v ILLAWARRA AREA HEALTH SERVICE [2001] NSWSC 323 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11001/97 HEARING DATE(S) : 01/03/01 JUDGMENT DATE : 30 April 2001

Sonia Leigh Gilbert (now Chalk) - Plaintiff PARTIES : Illawarra Area Health Service - First Defendant Brian Hoolahan - Second Defendant Ian Hoult - Third Defendant JUDGMENT OF : Bryson J at 1

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 11001/97 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

COUNSEL : S. Kettle - Respondent G. Curtin - Appellant Paul J Donnelly & Associates - Plaintiff SOLICITORS : Lyn Boyd - First Defendant Ebsworth & Ebsworth - Second & Third Defendants CATCHWORDS : LIMITATION OF ACTIONS - extension of time for action for personal injury - plaintiff to show she was unaware of the connection between the personal injury and the defendants act or omission under Limitation Act 1969 (NSW) s60I(1)(a)(iii) - Master's finding that plaintiff was unaware was attacked on basis of cross-examination which was not dealt with in judgment - the material which was not examined was directed to present perception of the implication of available information and not to awareness at the relevant time - the parties were not called on to deal with it in detail - finding for the plaintiff was credibility based and should not be disturbed - there was some evidence to connect the other defendants to the events - consideration of extension of time to sue other tortfeasors on principle in Briggs v. James Hardie - decision to extend time affirmed. LEGISLATION CITED : Limitation Act 1969 (NSW) Harris v. Commercial Minerals Ltd & Ors (1996) 186 CLR 1 CRA Ltd v. Martignago & Anor (1996) 39 NSWLR 13 Bates v. Endrey-Walder & Ors CA(NSW) - Unreported - 30 July 1998 Devries & Anor v. Australian National Railways Commission & Anor (1993) 177 CLR 472 Broken Hill Proprietary Co. Ltd & Anor v. Waugh (1988) 14 NSWLR 360 CASES CITED : Briggs v. James Hardie & Co. Pty Ltd & Ors (1989) 16 NSWLR 549 Menzies v. Australain Iron & Steel Ltd (1952) 52 SR(NSW) 62 Hummerstone v. Leary [1921] 2 KB 664 Ellis v. Wallsend District Hospital (1989) 17 NSWLR 553 Dow Corning Australia Pty Ltd v. Paton CA(NSW) - Unreported - 24 April 1998 Wintle v. Conaust (Vic) Pty Ltd [1989] VR 951 DECISION : The appeal from the orders of Master Harrison of 9 June 2000 is dismissed with costs.