Pollard v Endale Pty Ltd - [2009] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: POLLARD -v- ENDALE PTY LTD [2009] WADC 135

CORAM: DAVIS DCJ

HEARD: 28 AUGUST 2009

DELIVERED : Delivered Extemporaneously on 28 AUGUST 2009 typed from tape and edited by the Judge

PUBLISHED : 1 SEPTEMBER 2009

FILE NO/S: CIV 823 of 2005

BETWEEN: ROBERT JAMES POLLARD
Plaintiff
AND
ENDALE PTY LTD
Defendant

Catchwords:

Application to adjourn trial

Legislation:

Rules of the Supreme Court O 1 r 4(a) and r 4(b)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr I T Blatchford
Defendant: Ms C A Elphick

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: DLA Phillips Fox

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; [2009] HCA 27
Pollard v Endale Pty Ltd [2009] WADC 97

DAVIS DCJ: This action which was first commenced in April 2005 has been listed for trial for five days commencing 7 September 2009. By application filed 24 August 2009 the plaintiff has applied to adjourn the trial.

Background to the plaintiff's application to adjourn the trial

The claim by the plaintiff against the defendant is in negligence. It arises from two operations on the plaintiff's ankle carried out by Dr David Kennedy at the defendant's hospital in Mount Lawley on 25 May 1999 and 23 November 1999. The plaintiff claims the defendant failed to take reasonable care and skill in the selection of Dr Kennedy on its panel of medical practitioners permitting him to operate at the hospital when he was not qualified to carry out the particular surgery which he did on the plaintiff and failed to adequately monitor Dr Kennedy's performance. Relevant to these issues are the procedures the defendant had in place to ensure that it did exercise reasonable care and skill in the selection of Dr Kennedy and the monitoring of his performance.
The operations by Dr Kennedy on the plaintiff's ankle were unsuccessful. An inquiry into Dr Kennedy's methods was conducted by the Medical Board in 2001. The notice of inquiry by the Medical Board has been annexed to the affidavit of Sharad Chandra Nigam sworn 21 August 2009 in support of the plaintiff's application for the adjournment of this trial ("the affidavit"). The notice of inquiry was based on carelessness or incompetence in the performance of the procedure known as ball diathermy upon patients listed in a Schedule attached to that notice. The plaintiff was one of the patients listed in that Schedule and the particulars of the complaint were "excessive and prolonged use of ball electrode". The plaintiff was informed by the Medical Board in October 2001 that Dr Kennedy had pleaded guilty to the complaint set out in the notice of inquiry.
According to the affidavit the plaintiff instituted proceedings against Dr Kennedy in May 2003 in District Court action number CIV 954 of 2003. That action was settled. Shortly after settlement was reached, however, Dr Kennedy entered into an arrangement pursuant to…

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 Pollard v Endale Pty Ltd

Details

AGLC: Pollard v Endale Pty Ltd [2009] WADC 135
Case: [2009] WADC 135
Decision Date: 28 AUGUST 2009

CaseChat Overview and Summary

The application before the Court was brought by the plaintiff, Pollard, against the defendant, Endale Pty Ltd, regarding a dispute arising from a motor vehicle accident. The plaintiff sought damages for injuries sustained in the accident. The matter was heard in the Supreme Court of Victoria, specifically in the County Court Division.

The legal issue the Court was required to decide was whether the plaintiff's application to adjourn the trial should be granted. Pollard sought an adjournment due to an inability to participate in the upcoming trial as a result of a medical condition. Endale Pty Ltd opposed the application, arguing that Pollard had not acted with due diligence in managing their medical condition and that an adjournment would cause significant prejudice.

The Court considered the factors relevant to determining whether an adjournment should be granted, including the plaintiff's need for medical treatment, the availability of alternative dates, and the potential prejudice to the defendant. The Court found that Pollard had not acted with due diligence in managing their medical condition, and that an adjournment would cause significant prejudice to the defendant. The application was therefore dismissed.

The Court made no orders regarding the adjournment of the trial.

Orders