Lange v O'Carrigan

Case [2013] NSWDC 183

District Court


New South Wales

Medium Neutral Citation: Lange v O'Carrigan [2013] NSWDC 183
Hearing dates:2, 3, 4, 5, 6, & 27/09/2013
Decision date: 04 October 2013
Jurisdiction:Civil
Before: Levy SC DCJ
Decision:

1.Application by defendant to amend defence to plead the materialisation of an inherent risk pursuant to s 5I of Civil Liability Act 2002 is dismissed;

2.The defendant is to pay the plaintiff's costs of the dismissed application;

3.Verdict and judgment for the defendant;

4.The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless otherwise ordered;

5.Each party is to bear their own costs associated with the expert evidence given concurrently by Dr Bracken, Dr Conrad and Dr Sullivan, such costs to include witness expenses and the cost of representation during the taking of that evidence;

6.The exhibits may be returned;

7.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - professional negligence - orthopaedic surgery - whether total hip replacement surgery resulting in leg lengthening of the affected side represented a departure from the required standard of medical practice - whether revision surgery was undertaken too hastily as claimed - whether treatment was in accordance with peer professional opinion widely accepted in Australia - s 5O of Civil Liability Act 2002; PRACTICE AND PROCEDURE - whether late application by defendant to plead defence of materialisation of an inherent risk pursuant to s 5I of Civil Liability Act 2002 should be granted after close of evidence and submissions
Legislation Cited: Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5I, s 5O, s 15, s 16
Civil Procedure Act 2005, s 56, s 57, s 58, s 64
UCPR, r 17.3, r 22.1, r 24.3, r 31.20, r 31.24, r 31.27, Sch 7, cl 5(c)
Cases Cited: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Ainsworth v Levi [1995] NSWCA 9
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Breen v Williams [1996] HCA 57; (1996-1997) 186 CLR 71
Cox v Fellows [2013] NSWCA 206
Dobler v Halvorsen [2007] NSWCA 335; (2007) 70 NSWLR 151
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Halvorsen v Dobler [2006] NSWSC 1307
Haywood v Collaroy Services Beach Club [2005] NSWSC 1203
Keating v South Sydney Illawarra Health Service (NSWSC, Hall J, No 20232 of 2005, 7 July 2006, unreported)
Luxton v Vines [1952] HCA 19 at [8]; (1952)…

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AGLC
Lange v O'Carrigan [2013] NSWDC 183
Case
[2013] NSWDC 183
Decision Date

CaseChat Overview and Summary

In Lange v O'Carrigan, the plaintiff sought to hold the defendant, an orthopaedic surgeon, liable for professional negligence following a total hip replacement surgery that resulted in the plaintiff's leg lengthening on the affected side. The plaintiff claimed that the surgery and subsequent revision surgery were conducted in a manner that departed from the required standard of medical practice and that the revision surgery was undertaken too hastily. The defendant argued that the treatment was in accordance with peer professional opinion widely accepted in Australia, and later sought to plead the defence of materialisation of an inherent risk pursuant to section 5I of the Civil Liability Act 2002. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the defendant's application to amend their defence to include the defence of materialisation of an inherent risk, made after the close of evidence and submissions, should be granted. Additionally, the court had to decide whether the defendant's actions during the surgery and subsequent revision surgery represented a departure from the required standard of medical practice and whether the treatment was in accordance with peer professional opinion widely accepted in Australia.

The court found that the defendant's application to amend the defence was made too late and dismissed the application. The court held that the amendment would have caused significant prejudice to the plaintiff and that the defendant had not demonstrated any special or exceptional circumstances that would warrant the grant of leave to amend the defence. The court also found that the defendant's actions during the surgery and subsequent revision surgery did not represent a departure from the required standard of medical practice and that the treatment was in accordance with peer professional opinion widely accepted in Australia.

The court ordered that the defendant pay the plaintiff's costs of the dismissed application and that the plaintiff pay the defendant's costs of the proceedings on the ordinary basis unless otherwise ordered. Additionally, each party was to bear their own costs associated with the expert evidence given concurrently by Dr Bracken, Dr Conrad and Dr Sullivan, such costs to include witness expenses and the cost of representation during the taking of that evidence. The exhibits were to be returned and liberty to apply on seven days notice if further orders were required.

Orders

Orders of the court

1.Application by defendant to amend defence to plead the materialisation of an inherent risk pursuant to s 5I of Civil Liability Act 2002 is dismissed;

2.The defendant is to pay the plaintiff's costs of the dismissed application;

3.Verdict and judgment for the defendant;

4.The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless otherwise ordered;

5.Each party is to bear their own costs associated with the expert evidence given concurrently by Dr Bracken, Dr Conrad and Dr Sullivan, such costs to include witness expenses and the cost of representation during the taking of that evidence;

6.The exhibits may be returned;

7.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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