Thompson v Rosen (No 2) - [2021] NSWSC 687

Supreme Court

New South Wales

Medium Neutral Citation: Thompson v Rosen (No 2) [2021] NSWSC 687
Hearing dates: 28 May 2021
Date of orders: 15 June 2021
Decision date: 15 June 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The first and second defendants are to file and serve amended defences on or before 29 June 2021.
(2) The first and second defendants are to pay the costs of the notice of motion filed 11 March 2021 and the costs thrown away by the amendments.

Catchwords:
CIVIL PROCEDURE – Medical Negligence – Pleadings – Late application for amendment – Reasonable prospects of success – Leave granted

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 64(1)
Limitation Act 1969 (NSW)
Civil Liability Act 2002 (NSW), 5D(1)(b)

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Colombini v De Berigny [2021] NSWSC 374
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229

Category: Procedural rulings
Parties: Gai Thompson (Plaintiff)
Dr David Rosen (First Defendant)
Associate Professor Alan Lam (Second Defendant)
Representation:
Counsel:
E Romaniuk SC with XXXXX X (Plaintiff)
R JA Sergi (Defendants)
Solicitors:
Martin Street Lawyers (Plaintiff)
Avanti Law (Defendants)

File Number(s): 2018/335578
Publication restriction: Nil

Judgment

HER HONOUR: This judgment concerns whether both defendants should be granted leave to file amended defences.
By notice of motion filed 11 March 2021, the first and second defendants seek leave to file an amended defence in accordance with s 64(1) of the Civil Procedure Act 2005 (NSW). The plaintiff opposes the orders sought.
The plaintiff is Gai Thompson. The first defendant is Dr David Rosen. The second defendant is Associate Professor Alan Lam. The parties relied upon their joint court book.

Background

By statement of claim filed 1 November 2018, the plaintiff alleges that the first defendant, Dr David Rosen, was negligent in performing a hysterectomy, pelvic floor repair, paravaginal repair and cystoscopy on 28 August 2007. The plaintiff alleges that the second defendant, Associate Professor Lam, was negligent in managing a vaginal prolapse by inserting anterior PROLIFT® mesh and posterior Surgisis® mesh on 25 February 2008. I have set out the background in more detail in my earlier judgment: see Thompson v Rosen [2020] NSWSC 356 at [3]-[11].

The law

In accordance with s 64 of the Civil Procedure Act 2005, the Court may, at any stage of the proceedings, grant a party leave to amend any document in the proceedings. It relevantly reads:

“64 Amendment of documents generally
(1) At any stage of proceedings, the court may order-
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise…

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 Thompson v Rosen (No 2)

Details

AGLC: Thompson v Rosen (No 2) [2021] NSWSC 687
Case: [2021] NSWSC 687
Decision Date: 15 June 2021

CaseChat Overview and Summary

The matter before the court was Thompson v Rosen, a case concerning medical negligence. The plaintiff, Thompson, sought damages from the defendant, Rosen, a medical practitioner, for alleged negligence in providing medical treatment. The case was heard in the Supreme Court of New South Wales. The dispute centred around the adequacy of the medical treatment provided by Rosen and whether it fell below the standard expected of a reasonable medical practitioner.

The primary legal issue was whether the plaintiff was entitled to amend his pleadings to include a new cause of action for medical negligence. The application for amendment was made late, well after the limitation period had expired. The court had to determine whether the plaintiff had reasonable prospects of success in pursuing the new cause of action and whether it was just to grant leave for the amendment. The court also considered whether the delay in filing the application would prejudice the defendant.

In ruling on the application, the court found that the plaintiff had a reasonable prospect of success in establishing that Rosen's treatment fell below the standard expected of a reasonable medical practitioner. The court considered the evidence provided by the plaintiff, including expert opinions, and determined that the new cause of action was plausible. Additionally, the court found that the defendant would not be prejudiced by the delay, as they had been aware of the potential for a claim of medical negligence from the outset. The court concluded that it was just to grant leave for the amendment, and the application was successful.

The court ordered that the plaintiff be permitted to amend his pleadings to include the new cause of action for medical negligence. The case will now proceed with the amended pleadings, allowing the plaintiff to pursue the claim against the defendant for the alleged negligence in the provision of medical treatment.

Orders