Australia, Sept. 1 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 1:

1. These proceedings commenced with the filing of a statement of claim on 30 July 2021. The plaintiff is claiming damages arising from treatment, including spinal surgery, she says was negligently performed by the defendant in 1999 and 2000. The defendant was an orthopaedic surgeon. He has since retired.

2. The plaintiff was an adult when the surgery was performed. She is now 77 years of age. Without more, the proceedings are obviously out of time. To this end, the plaintiff filed a notice of motion on 3 December 2024, seeking an extension of the limitation period pursuant to s 60G of the Limitation Act 1969 (NSW) to 11 May 2022. This is the date when an amended statement of claim was filed.

3. In submissions, the plaintiff stated that the extension was sought to 30 July 2021, when the initial statement of claim was filed.

4. The application for an extension of time is opposed by the defendant.

5. Section 60G of the Limitation Act states:

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

6. The plaintiff's application is supported by an affidavit of Ms Tonya Longmore dated 6 December 2024. Ms Longmore is a solicitor acting on behalf of the plaintiff.

7. There are two affidavits from the plaintiff dated 20 May 2024, and 27 March 2025, respectively.

8. There is also a notice issued pursuant to s 67 of the Evidence Act 1995 (NSW). This is because the plaintiff is said to be unable "to give evidence at a contested hearing" due to her "anxiety and impaired cognitive state". In addition, there is a medical certificate form the Geriatric Unit at Mercy Hospital in Albury stating that the plaintiff is currently an inpatient in the unit and is unable to attend court for the "foreseeable future".

9. The defendant has responded with a notice under s 68 of the Evidence Act, objecting to the tender of the plaintiff's evidence. In oral submissions the defendant highlighted two points of objection:

1) The execution of the plaintiff's first affidavit was defective in form. The court book contains two identical affidavits from the plaintiff; the first signed by her but not witnessed and the second signed by a witness but not by the plaintiff. In the latter affidavit the confirmation of the plaintiff's identity does not list any document, let alone any of the documents given as examples at the foot of the form.

2) In his report of 6 March 2025, Prof Gonski, a geriatrician, refers to mini-mental testing of the plaintiff in January 2024 (by another practitioner), and by himself on 2 February 2025. He also records a history of deteriorating cognition over 3 years, and he concludes that she "lacks capacity to give evidence at a contested hearing".

10. With the above two factors present, and the absence of any evidence surrounding the making of the affidavit, the defendant submitted the plaintiff's affidavits should be excluded.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1985f22a9d9738bdcb849322)

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