Garrett v Beran [2000] NSWSC 864

New South Wales Supreme Court

CITATION : Garrett v Beran [2000] NSWSC 864 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20052/98 HEARING DATE(S) : 21 August 2000 JUDGMENT DATE : 30 August 2000

Leonie Coral Garrett (Plaintiff)

PARTIES : Roy Beran (Second Defendant)

Sandra Toth (Second Defendant) JUDGMENT OF : Master Harrison

Mr K Pryde (Plaintiff) COUNSEL : Mr M T McCulloch (Second Defendant) Mr M Whelan of Geoffrey Edwards & Co (Plaintiff) SOLICITORS : Ms Meghan Haire of Ebsworth & Ebsworth (Second Defendant) CATCHWORDS : extension of limitation period - ss 60C & E - add defendant - file amended statement of claim LEGISLATION CITED : Limitation Act 1969 (NSW) - ss 60C & E CASES CITED : Sydney City Council v Zegarac (1997-98) 43 NSWLR 195 Brisbane South Regional Health Authority v Taylor (1969) 186 CLR 541; 139 ALR DECISION : See para 22

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 30 AUGUST 2000

20052/98 - LEONIE CORAL GARRETT v ROY BERAN

JUDGMENT (Extension of limitation period - ss 60C & E add defendant; file amended statement of claim)

1 MASTER: By notice of motion filed 15 March 2000 the plaintiff seeks an order granting time within which to proceed against Sandra Toth trading as "Wanda Beach Pharmacy" as second defendant pursuant to s 60C of the Limitation Act 1969 (NSW) (as amended) (the Act). The plaintiff relied on the affidavits of Mark Ambrose Whelan sworn 13 March 2000, the plaintiff's mother Patricia Lorraine Garrett sworn 15 August 2000, and the plaintiff sworn 15 August 2000. Mrs Garrett and Mr Whelan gave evidence and were cross examined. The defendant did not file any affidavit evidence but opposed the orders sought. 2 In February 1998, a statement of claim was filed against the first defendant, a medical practitioner, alleging negligence and breach of contract arising from his prescribing for the plaintiff a drug known as Lamotrigine, which is an anti-epileptic drug. 3 The second defendant is a registered pharmacist. On about 14 March 1995 she filled a prescription written by the first defendant for the plaintiff of Lamotrigine. The second defendant allegedly supplied the plaintiff with a box of 25 mg Lamotrigine (also known under the brand name Lamictal) tablets and a box of 100 mg Lamotrigine concurrently. 4 It is alleged that the second defendant was negligent in that firstly, failing to ensure the plaintiff was aware that the two prescriptions of Lamictal were not to be taken concurrently; secondly, failing to ensure that the plaintiff was aware that the 25 mg prescription of Lamictal should be taken prior to commencing the 100 mg prescription; thirdly, failing to check the prescribed dosage of Lamictal; fourthly, filling the prescriptions as written by the first defendant without making any enquiries of the first defendant, of the plaintiff or her mother about the appropriateness of the medication in all the circumstances; fifthly, failing to check or failing to adequately check on the need for caution in the use of Lamictal as recorded in the MIM's Annual under the headings "Precautions" and "Adverse Reactions"; sixthly, failing to convey to the plaintiff or to her mother the warnings relating to the use of Lamictal as recorded in the MIM's Annual under the headings "Precautions" and "Adverse Reactions"; seventhly, failing to recognise Lamotrigine (Lamictal) as a new medication; and eighthly, failing to check on the need for caution to be exercised in relation to the prescribing of Lamictal. As a result the plaintiff suffered adverse reaction to Lamotrigine, Stevens Johnson Syndrome, toxic epidermal necrolysis, shock and related sequelae. 5 As previously stated, the plaintiff's mother, Patricia Garrett, and the plaintiff's solicitor, Mark Whelan, gave evidence and were cross examined. I carefully observed these witnesses being cross examined, and I formed the view that they were giving truthful evidence. For the purposes of this application I find the following facts. (1) The plaintiff was born on 15 January 1966 and is now 34 years old. She suffered from Meningitis when she was about 6 weeks old. She was diagnosed as having epilepsy when aged about 3 years. Since that time she has been on some form of anti-epileptic medication continuously, although the actual medication has varied from time to time.