Lange v O'Carrigan

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.