Diment v South Eastern Area Health Service - [2009] NSWSC 1097

CITATION: DIMENT v SOUTH EASTERN AREA HEALTH SERVICE [2009] NSWSC 1097

HEARING DATE(S): Thursday 8 October 2009

JUDGMENT DATE :
8 October 2009

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: I permit the amendments as sought in the notice of motion filed on 2 July 2009. I order the defendant to pay the plaintiff's costs of and incidental to this application.

CATCHWORDS: PRACTICE AND PROCEDURE - application for leave to amend plaintiff's pleadings - plaintiff had ongoing medical condition - defendant was operator of State hospital and had knowledge of plaintiff's medical history - no actual prejudice demonstrated - principled exercise of discretion to grant leave to amend

LEGISLATION CITED: Civil Procedure Act 2005
Workers Compensation Act 1987
Work Place Injury Management Act and the Workers Compensation Act 1998

CASES CITED: Aon Risk Services Australia Limited v Anu (2009) 83 ALR 951
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Itek Graphix Pty Limited v Elliott [2002] NSWCA 104
Salido v Nominal Defendant (1993) 32 NSWLR 524

PARTIES: Christine Ellen DIMENT v
SOUTH EASTERN AREA HEALTH SERVICE

FILE NUMBER(S): SC No 20720 of 2001

COUNSEL: P: A J McQuillen
D: D C Morgan

SOLICITORS: P: Gregory Harrison Healey
D: Moray & Agnew

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

THURSDAY 8 OCTOBER 2009

No 20720 of 2001

CHRISTINE ELLEN DIMENT v SOUTH EASTERN AREA HEALTH SERVICE
JUDGMENT

1 HIS HONOUR: This is an application made by amended notice of motion filed on 2 July 2009. The application is made by the plaintiff in proceedings originally commenced by way of statement of claim filed 16 August 2001 in the Common Law Division of this Court.

2 The plaintiff's date of birth is 22 May 1954 and she entered the employment of the defendant, in particular, at Sutherland Hospital in the Intensive Care Unit on 7 June 1993.

3 The nature of the proceedings are a claim for damages. The original statement of claim has been amended more than once and the proceedings, as they presently stand, claim against the defendant on two bases that may be stated in summary form. The first is based upon the defendant's alleged liability as an employer of the plaintiff. The second relies upon the alleged professional negligence of the defendant in its care and/or treatment of the plaintiff or otherwise. Hence proceedings have been, at some stage, transferred to the Professional Negligence List.

4 The essence of the plaintiff's claim is that she, in the course of her employment, contracted a condition, which I will refer to in a little bit more detail later, as a consequence of contact with latex. In the statement of claim, a variety of conditions are said to arise out of the latex contact, including rash, itchiness on hands and body, dermatitis said to be causing swelling of the eyes, an influenza like condition and other complications over time. The plaintiff claims damages for the condition, which she…

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.

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Details

Case: [2009] NSWSC 1097
Decision Date: 8 October 2009

CaseChat Overview and Summary

The case before the court was an application for leave to amend the plaintiff's pleadings, specifically in the context of medical negligence against a state health service. The plaintiff, Diment, sought to amend the pleadings to include a new cause of action against the defendant, South Eastern Area Health Service, which operated a state hospital. Diment had an ongoing medical condition, and the defendant was aware of his medical history. The plaintiff argued that the defendant's negligence contributed to the deterioration of his condition. The primary legal issue was whether the court should grant leave to amend the pleadings to include this new cause of action.

The court considered whether granting leave to amend would result in actual prejudice to the defendant, and whether the amendment was a principled exercise of the court's discretion. The defendant argued that granting leave would cause prejudice, but the court found no actual prejudice demonstrated. The plaintiff's medical history was already known to the defendant, and the new cause of action was a logical extension of the existing claim. The court found that allowing the amendment was in the interest of justice, as it would enable the plaintiff to pursue a claim that was closely related to the original pleadings.

The court exercised its discretion to grant leave to amend the pleadings. It determined that the amendment was not an abuse of process, and that the plaintiff had not acted unreasonably in delaying the amendment. The court emphasised the importance of achieving just outcomes in cases of medical negligence, and the need for the legal process to be flexible enough to accommodate the complexities of such cases. The court's decision was grounded in the principles of fairness and the pursuit of justice.

The final orders of the court were that leave to amend the pleadings be granted, and the plaintiff was allowed to proceed with the new cause of action against the defendant. The court emphasised that the defendant's rights to a fair trial would be protected through the procedural mechanisms available to it. The case serves as a reminder of the importance of allowing flexibility in pleadings to ensure that justice is served, particularly in cases involving medical negligence.

Orders