LORENZO MARIO BORSATO (plaintiff) v ALEXANDER DENIS CAMPBELL (first defendant) A. DENIS CAMPBELL PTY LTD (second defendant) DR RICHARD LEWANDOWSKI (third defendant) DR DONALD CAMPBELL (fourth defendant) STATE OF QUEENSLAND (fifth defendant)
FILE NO/S:
7306 of 2005
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
3 August 2006
DELIVERED AT:
Brisbane
HEARING DATE:
28 July 2006
JUDGE:
McMurdo J
ORDER:
1. The amendments pleaded against the third, fourth and fifth defendants in the statement of claim filed on 10 May 2006 will be struck out.
2. The plaintiff is to file and serve a further amended statement of claim deleting those parts within seven days.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – AMENDMENT – where the statement of claim alleged negligence in the performance of surgery – where the plaintiff amended the statement of claim in certain respects and included a duty to warn the plaintiff of the risks involved in surgery – where the third, fourth and fifth defendants argue the amended statement of claim raises a new cause of action outside the limitation period pursuant to r 376 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the amended statement of claim introduced a new cause of action – whether the additional cause of action arose out of “substantially the same facts” – whether the defendants would suffer prejudice if the amendment to the statement of claim was allowed
M J Foley for the plaintiff/respondent P A Freeburn SC for the third, fourth and fifth defendants/applicants
SOLICITORS:
Keith Scott and Associates for the plaintiff/respondent Cooper Grace Ward for third, fourth and fifth defendants/applicants
JMcMURDO: The question for determination is whether the plaintiff should be allowed to amend its statement of claim against the third, fourth and fifth defendants. They say that the plaintiff’s amendment raises a new cause of action outside the limitation period, and that in terms of the Uniform Civil Procedure Rules 1999, r 376(4), it is not appropriate to allow the amendment because the defendants would be relevantly prejudiced. The plaintiff says that the amendment does not involve a new cause of action, so that leave is not required under r 376 and nor should the amendment be disallowed.
This is a medical negligence claim which involves surgery undertaken by the plaintiff in 1988 at the Townsville…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Borsato v Campbell
Sign in free to access the full text
Details
AGLC
Borsato v Campbell [2006] QSC 191
Case
[2006] QSC 191
Decision Date
CaseChat Overview and Summary
In the case of Borsato v Campbell, the plaintiff, Mr Borsato, initiated legal proceedings against several defendants, including the third, fourth, and fifth defendants, for alleged negligence in the performance of surgery. The dispute reached the Queensland Supreme Court, where the primary issue was whether the plaintiff's amendments to the statement of claim introduced a new cause of action outside the limitation period. The amendments in question included a duty to warn the plaintiff about the risks involved in the surgery. The third, fourth, and fifth defendants argued that the amendments introduced a new cause of action that arose outside the limitation period, contrary to Rule 376 of the Uniform Civil Procedure Rules 1999 (Qld).
The court examined whether the amended statement of claim introduced a new cause of action and whether this new cause of action arose from "substantially the same facts" as the original claim. The defendants also contended that permitting the amendments would prejudice them. The court's analysis focused on the nature of the amendments and their impact on the existing cause of action. The court found that the amendments did not introduce a new cause of action but rather elaborated on the existing duty of care by including a specific duty to warn. The court determined that the additional allegations arose out of the same set of facts and circumstances as the original claim.
The court concluded that allowing the amendments would not prejudice the defendants as they had been aware of the allegations from the outset and had ample opportunity to prepare their defence. The court struck out the amendments pleaded against the third, fourth, and fifth defendants and ordered the plaintiff to file and serve a further amended statement of claim within seven days, deleting the parts in question. This decision underscored the importance of ensuring that amendments to pleadings do not introduce new causes of action but rather clarify or expand upon existing claims.
Orders
Orders of the court
1. The amendments pleaded against the third, fourth and fifth defendants in the statement of claim filed on 10 May 2006 will be struck out.
2. The plaintiff is to file and serve a further amended statement of claim deleting those parts within seven days.