Kaye v Woods

[2014] ACTSC 84

ACT SUPREME COURT

Case Title:

Kaye v Woods

Medium Neutral Citation:

[2014] ACTSC 84

Hearing Date(s):

2 and 5 May 2014

DecisionDate:

8 May 2014

Before:

Murrell CJ

Decision:

Appeal be dismissed

Catchwords:

APPEAL – Appeal from interlocutory decision of Master – Proper scope of appeal from Master under s 9 of Supreme Court Act 1993 (ACT) – Considered but not decided – Grounds in appeal led respondent to believe that appeal would be in House v The King sense

APPEAL – Whether Master erred in exercise of discretion – Appellant failed to demonstrate error in Master’s decision – Appeal dismissed

PRACTICE AND PROCEDURE – Pleadings – Amendments – Application by plaintiff to amend Statement of Claim five years after proceedings were commenced – Action for damages for medical negligence – Whether expert report provides evidentiary basis for proposed amendments – Trial date previously vacated

Legislation Cited:

Australian Capital Territory Supreme Court Act 1933 (Cth) s 8AAA

Supreme Court Act 1933 (ACT) s 9

Court Procedure Rules 2006 (ACT) rr 21, 502, 503, 5013

Cases Cited:

Aon Risk Services Australia v Australian National University (2009) 239 CLR 175

Balnaves v Armellin [2011] ACTSC 67

Balnaves v Armellin [2012] ACTSC 52

Draney v Barry [2002] 1 Qd R 145

House v The King (1936) 55 CLR 499

Konstruct v Arrow [2012] ACTSC 14

McKenna v Hunter & New England Local Health District [2013] NSWCA 476

Naxakis v Western General Hospital (1999) 197 CLR 269

Rogers v Whitaker (1992) 175 CLR 479

Rothwells Ltd v Entity Group Ltd (1990) 101 FLR 460

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

Category:

PRINCIPAL JUDGMENT

Decision Under Appeal:

On Appeal from the Master of the Supreme Court of the Australian Capital Territory

Parties:

Elise Sarah Kaye (Appellant)

Dr Kevin Woods (First Respondent)

John James Memorial Foundation Ltd ACN 008 453 469 (Second Respondent)

Representation:

Counsel

Mr A Bartley SC with Mr F Tuscano (Appellant)

Mr G Gregg (MDA National – First Respondent)

Mr D Shillington (Medical Indemnity Protection Society - First Respondent)

Ms A McCormick (Second Respondent)

Solicitors

Colquhoun Murphy (Appellant)

Ken Cush & Associates (Medical Indemnity Protection Society - First Respondent)

Sparke Helmore (MDA National - First Respondent)

Minter Ellison (Second Respondent)

File Number(s):

SC 422 of 2008

JUDGMENT

Procedural history

1. On 23 May 2008, Elise Kaye (the appellant) commenced proceedings against Dr Woods, an orthopaedic surgeon, and the John James Memorial Hospital (the Hospital) for damages arising from Dr Woods’ treatment of the appellant in relation to an acute anterior cruciate ligament injury to the appellant’s left knee.  The appellant had been referred to Dr Woods by Dr Still.  Dr Woods undertook three operations; on 17 May 2000, 16 October 2000 and 29 May 2002.  The second and third operations were designed to address complications that arose from the first operation. 

1. Initially, the appellant’s claim concerned alleged negligence giving rise to serious complications associated with an infection that occurred after the third operation.

1. Discovery and interrogatories were completed by December…