Motion For Dismissal Of Action Rejected

Press, Volume CIV, Issue 30811, 24 July 1965, Page 3

Motion For Dismissal Of Action Rejected

(New Zealand Press Association) WELLINGTON, July 23. A motion by an orthopaedic surgeon, Arthur Wynyard Beasley, to strike out an action against him for damages for alleged negligence was dismissed by Mr Justice McGregor in a judgment delivered today. The plaintiff was Leslie Baker, a painter and decorator, of Petone.

Mr G. P. Barton with him Mr R. F. Pethig appeared for Baker and Mr G. L. McLeod for Beasley. His Honour said that Baker suffered an injury in a road accident in 1959. He was first treated in hospital and after his discharge his solicitors were instructed to make a claim against a third party for damages in respect of his personal injuries. Baker attended Beasley for an examination and a report on his injuries. He was then complaining of acute pain and sensitivity in his right ankle. Beasley conducted an exploratory operation in December, 1959, but was not able

to ascertain the cause of the acute pain.

Beasley gave his opinion that there was no condition present causing the acute pain and, in effect, that the pain was a matter of imagination. As a result, Baker’s advisers settled the action for damages against the third party, waiving any amount for pain and suffering in the ankle. The pain persisted, and about the middle of 1960 Baker went to England and there consulted another surgeon who performed an operation and, according to the allegations, it was found that a nerve end was involved in the scar tissue from the original injury. Thereafter the pain vanished and Baker had suffered no further disability. “The plaintiff in his statement of claim alleges negligence on the part of the defendant in a number of respects,” said his Honour. “These can be summarised as failure to exercise due care and skill in making the diagnosis and the subsequent report, failure to discover the cause of the plaintiff’s pain, failure to take the necessary remedial steps and failure to act in all the circumstances as a careful, skilful and prudent surgeon. “These allegations are| made ex contractu, arising

from the relationship of surgeon and patient. “The writ was issued an February 20. 1963. The defendant has pleaded that the claim is statute-barred by virtue of the Limitation Act. “I have received, to my mind, no satisfactory explanation as to the long delay in bringing the proceedings before the Court and I am perturbed at the long procrastination on the part of both parties’ advisers. “The point at issue between the parties could, and should, have been disposed of two years ago. “The narrow question at issue is as to whether this is an action is respect of the bodily injury to the plantiff. If so, it would have been statute-barred at the expiration of two years from the alleged negligent acts or ommissions of the defendant. “If the action arises out of simple contract or tort, the period of limitation is six years. “It seems to me that the action is not one in respect of bodily injury but is one for breech of contractual duty. “Failure to ascertain an existing bodily injury is not in itself a bodily injury. The defence of lapse of time against a just demand is not to be extended to cases which [are not clearly within the enactment.”