Sydney South West Area Health Service v MD

Sydney South West Area Health Service (the first appellant) appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales which found it liable for negligence. The respondent, MD, was the plaintiff in the original proceedings. The dispute concerned the alleged negligence of medical practitioners employed by the Health Service in their treatment of MD.

The Court of Appeal was required to determine whether the Health Service was required to plead section 5O of the *Civil Liability Act 2002* (NSW) or the material facts underpinning that section. It also had to consider whether an amendment to the pleadings should have been allowed, particularly in circumstances where the proposed amendment might lead to a trial by ambush. Finally, the Court considered whether there had been an error in the original decision warranting a new trial, and whether a substantial miscarriage of justice had occurred.

The Court held that it was not necessary for the Health Service to plead section 5O of the *Civil Liability Act 2002* (NSW) or the material facts referred to in that section, as the section was a statutory defence that did not require specific pleading. The Court also found that the trial judge had erred in refusing to allow the Health Service to amend its defence, as the proposed amendment did not amount to a trial by ambush and the plaintiff would not be unduly prejudiced. However, the Court dismissed the appeal on the issue of liability, finding no error in the original finding of negligence. The Court allowed the appeal on costs, ordering that the plaintiff pay the costs of the Health Service in the original proceedings. The Court also varied a non-publication order, maintaining the anonymisation of the plaintiff's name and prohibiting media publication of the names of the plaintiff, her children, and their father.