FLETCHER v BESSER & ANOR [2004] NSWCA 132

New South Wales Court of Appeal

CITATION : FLETCHER v BESSER & ANOR [2004] NSWCA 132 HEARING DATE(S) : 02/04/2004 JUDGMENT DATE : 4 May 2004

JUDGMENT OF : Mason P at 1; Giles JA at 2; Bryson JA at 3 DECISION : [2002] NSWSC 899 affirmed. Appeal dismissed with costs.

CATCHWORDS : LIMITATION OF ACTIONS - Postponement of the Bar-extension of period - cause of action in respect of personal injuries - Limitation Act 1969 s 60G - medical negligence - appellant (plaintiff) severely disabled after neurosurgery in October 1982 - brought proceedings in 1995 against general practitioners - appellant claimed she had been under disability until 1990 and was able to sue until 1996 - in 2000 obtained expert opinions raising basis for alleging negligence in neurosurgery and hospital treatment, obtained leave to join respondents (neurosurgeon and hospital) as additional dependants and applied for extension of time - Studdert J refused extension as fair trial could not be had because of respondents' difficulties in establishing events in detail - decision affirmed - observations at [12] & [13] on lack of significance of difficulties respondents would have faced if proceedings had been brought late in the period available - "just and reasonable" test requires an address to what is now just and reasonable, not to what might have been the respondents' situation in events which did not happen - observation in Smith vNorton [2004] NSWCA 84 at [39] not applicable to s 60G. (D) Limitation Act 1969 s 14(1)(b), s 18A, s 52(1)(d), s 58, s 60E, s 60F, s 60G, s 60I, Sch 5 LEGISLATION CITED : Motor Accidents Act 1988 s 52(4) Supreme Court Act 1970 s75 Smith v. Morton [2004] NSWCA 84 Browne v. Dunn (1893) 6 R 67 CASES CITED : Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 McLean v. Sydney Water Corporation [2001] NSWCA 122 Holt v. Wynter (2000) 49 NSWLR 128 Joanna Wilhelmina Fletcher - Appellant PARTIES : Michael Besser - First Respondent Central Sydney Area Health Service - Second Respondent FILE NUMBER(S) : CA 40957/2002 J. Agius SC & M. Condon - Appellant COUNSEL : D.Davies SC - First Respondent S. Kalfas - Second Respondent Graham Billing & Co - Appellant SOLICITORS : Tress Cocks & Maddox - First Respondent Ebsworth & Ebsworth - Second Respondent