Breheny v Cairncross

Breheny (the appellant) brought proceedings against a hospital and two doctors (the respondents) alleging intellectual disabilities caused by their negligent treatment during his birth. The appeal concerned an order made under Part 13 rule 5 of the Supreme Court Rules, which summarily dismissed the appellant's claim against the doctors. The appeal was heard by Meagher, Handley and Hodgson JJA.

The central legal issue before the Court of Appeal was whether the trial judge erred in summarily dismissing the appellant's claim against the doctors, specifically in failing to apply the principle established in *Wickstead v Browne*. This principle relates to the circumstances under which a claim, particularly one involving allegations of medical negligence, can be summarily dismissed.

The Court of Appeal allowed the appeal, finding that the trial judge had erred in dismissing the claim. The reasoning focused on the application of *Wickstead v Browne*, which generally requires a high threshold to be met before a claim can be struck out summarily, especially in complex matters like medical negligence where expert evidence is often required. The Court determined that the appellant's case should not have been dismissed at that preliminary stage.

Consequently, the Court of Appeal set aside the judgment of the court below and ordered that the motion to dismiss the claim be dismissed. The respondents were ordered to pay the appellant's costs of the appeal and the application for leave to appeal, with the costs of the motion to be costs in the cause. The respondents were also granted a certificate under the Suitor's Fund Act in respect of the costs of the appeal.