McLean v Dr Marshall

The case of McLean v Dr Marshall involved a dispute between a child plaintiff and a doctor regarding medical negligence. The child plaintiff, represented by her mother as next friend, sought damages for injuries allegedly sustained due to the defendant's negligence during childbirth. The primary issue before the court was whether the costs incurred in the separate trial of the issue of liability should be payable immediately, given that the extent of the child's damages could not be determined for several years.

The legal issues focused on the appropriate allocation of costs in a case where the full extent of damages cannot be assessed until the child reaches a certain age. The court had to consider whether it was just and equitable to require the plaintiff to pay the costs of the liability trial upfront, or if such costs should be deferred until the damages could be more accurately determined. This involved balancing the need for timely resolution of liability issues against the potential financial burden on the plaintiff.

The court held that it was not just and equitable to require the plaintiff to pay the costs of the liability trial immediately. The court recognised that the full extent of the child's damages could not be determined for some years and that requiring the plaintiff to pay these costs upfront would place an undue financial burden on her. Consequently, the court ordered that the costs of the liability issue should be deferred until the damages could be more accurately assessed. The court emphasised the importance of considering the unique circumstances of child plaintiffs in medical negligence cases, where the long-term impact of injuries may not be fully understood at the time of the initial trial.