Gillett v Robinson - [2011] NSWSC 863

Supreme Court

New South Wales

Medium Neutral Citation: Gillett v Robinson [2011] NSWSC 863
Hearing dates: 1 August 2011
Decision date: 12 August 2011
Before: Harrison J
Decision:
Plaintiff's application to amend statement of claim and call further medical evidence from Dr Molloy dismissed

Catchwords: PROCEDURE - amendment - application to amend statement of claim and to call further medical evidence - application made on first day of hearing - no explanation for delay - where application futile - where medical evidence not supportive of proposed new case in any event - application refused
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Category: Procedural and other rulings
Parties: Halina Jain Gillett (Plaintiff)
Representation: K Connor SC and M Avenell (Plaintiff)
Thomas Mitchell Solicitors (Plaintiff)

File Number(s): 2006/267258

Judgment

HIS HONOUR : The plaintiff has applied to amend her statement of claim and to rely upon an additional medical report in support of her case, which I heard on the first day of the hearing on 1 August 2011. I rejected the application and informed the parties that I would furnish reasons for my decision at a later date. These reasons for judgment are limited to that application.

Introduction and background

The plaintiff was born in October 1985. Her mother's attending obstetrician was Professor Robinson. She sustained an injury to her right shoulder during the delivery, known as Erb's palsy, which was caused by shoulder dystocia. The plaintiff alleges that her injury, and consequent disabilities, resulted from Professor Robinson's negligence or breach of duty.

The plaintiff commenced these proceedings in 2006. I have been unable to locate the original statement of claim. However, by a notice of motion filed on 17 April 2008 the plaintiff sought to amend the particulars of negligence against Professor Robinson so that they read as follows:

(a) Failed to take any or any proper care on the part of the plaintiff.

(b) Failed to acknowledge that there was a heightened risk of shoulder dystocia as a result of the condition of the plaintiff's mother and her prior pregnancies.

(d) Failed to exercise due care and skill in the provision of obstetric services subject of the birth process.

(e) Failed to undertake a caesarean section on the plaintiff's mother despite requests to do so.

(f) Failed to appropriately consider the plaintiff's mother's prior pregnancy and birthing concerns.

(g) Failed to provide obstetric services with any or any reasonable care.

Despite the extent of these proposed particulars of negligence in the second amended statement of claim annexed to the notice of motion, the final version of that document, which was filed on…

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 Gillett v Robinson

Details

AGLC: Gillett v Robinson [2011] NSWSC 863
Case: [2011] NSWSC 863
Decision Date: 12 August 2011

CaseChat Overview and Summary

The case of Gillett v Robinson was heard in the Federal Circuit Court, where the plaintiff sought to amend their statement of claim and call further medical evidence. The matter was heard on the first day of the hearing. The plaintiff had not provided any explanation for the delay in making the application. The court was required to decide whether the application was futile and whether the additional medical evidence would support the proposed new case.

The court considered the lack of explanation for the delay and the futility of the proposed amendments. Additionally, the court found that the additional medical evidence was not supportive of the plaintiff's proposed new case. The court held that the application to amend the statement of claim and call further medical evidence was refused. The court found that the plaintiff's application was made without good reason and that the additional medical evidence did not provide any support for the new case.

The court's decision was based on the lack of explanation for the delay in making the application, the futility of the proposed amendments, and the lack of support from the additional medical evidence. The court found that the application was an abuse of process and refused the application. The court did not make any orders regarding the amendment of the statement of claim or the calling of further medical evidence.

Orders