Turner v Bayer Australia Ltd (No 3) - [2023] VSC 71

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GROUP PROCEEDINGS LIST

S ECI 2019 02916

PATRICE SARAH TURNER	Plaintiff
v
BAYER AUSTRALIA LTD (ACN 000 138 714) & ORS	Defendants

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2023
DATE OF RULING:	24 February 2023
CASE MAY BE CITED AS:	Turner v Bayer Australia Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VSC 71 (First revision 6 November 2023)

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PRACTICE AND PROCEDURE — Pleadings — Further and better particulars — Leave to amend — Supreme Court (General Civil Procedure) Rules2005 (Vic), r 36.04(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	F Forsyth KC with E Levine	Slater & Gordon
For the First to Fourth and Sixth Defendants	D Collins KC with D Wong	Clayton Utz
For the Fifth Defendant	N Connell (as solicitor)	Mills Oakley

HIS HONOUR:

This representative proceeding is a product liability action concerning implanted permanent contraceptive medical devices identified collectively as the Essure device. The plaintiff brings the proceeding on behalf of all women who have had an Essure device implanted and suffered harm as a result. She claims damages for breach of the Australian Consumer Law[1] (‘ACL’) and Trade Practices Act 1974 (Cth) (‘TPA’), and in negligence based on allegations of defective design and failure to warn.
[1]Competition and Consumer Act 2010 (Cth), Schedule 2.

The proceeding is listed for trial on an estimate of 12 weeks commencing on 11 April 2023.

In December 2022, the plaintiff filed and served further and better particulars of her amended statement of claim (‘ASOC’).

The first to fourth and sixth defendants (‘Bayer and AMSL defendants’) oppose the plaintiff being granted leave to amend her pleading in accordance with some of the further and better particulars on grounds that the proposal to amend comes at a late stage in the proceeding and without satisfactory explanation, and because the impugned particulars represent an expansion of the plaintiff’s case, and will cause substantial delay and give rise to wasted costs. They submitted that if any of the impugned further particulars were allowed, they should have the opportunity to file and serve further evidence responding to the new allegations.

Statement of claim

Relevant features of the Essure device are pleaded in the ASOC as follows:

14.The Essure Device was comprised of:
a.a micro-insert;
b.a disposable delivery system; and
c.a disposable introducer.

15.The micro-insert in the Essure Device (the Essure Insert):
a.was comprised of:
i)a 316L stainless steel inner coil (the Inner Coil);
ii)a chromium-doped nitinol (nickel-titanium alloy) outer coil (the Outer Coil);
iii)polyethylene terephthalate (PET) fibres;
iv)platinum-iridium bands and bump;
v)silver-tin solder;

b.was a spring-like device;
c.was wound down such that it was approximately 4cm in length and 0.8mm in diameter;
d.expanded up to approximately 2.0 mm in diameter when released;
e.figure 1a (below), obtained from the 2014 Essure Clinical Resource Physician Training Manual, is a depiction (not 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.

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Details

Case: [2023] VSC 71
Decision Date: 24 February 2023

CaseChat Overview and Summary

The matter before the court involved Turner, a plaintiff, and Bayer Australia Ltd, a defendant, in the Supreme Court of Victoria. The dispute centred on the plaintiff's application for leave to amend his statement of claim, seeking to add further particulars in relation to the defendant's liability for damages arising from the alleged negligence in the manufacturing and marketing of a pharmaceutical product. The court was tasked with determining whether the plaintiff should be granted leave to amend his pleadings to include additional details.

The legal issue before the court was whether the plaintiff's proposed amendments would sufficiently particularise the plaintiff's claims, and whether the grant of leave to amend would be in the interests of justice. The plaintiff argued that the additional particulars were necessary to establish the basis of the defendant's liability, while the defendant contended that the amendments were futile and would not provide any new or relevant information. The court had to weigh the importance of allowing parties to fully ventilate their claims against the potential for unnecessary delay and prejudice to the opposing party.

The court found that the proposed amendments would indeed provide further particulars that were necessary for the plaintiff to establish his case. The court considered that the additional details would assist in clarifying the specific allegations against the defendant and the basis of the plaintiff's claims. The court further found that granting leave to amend would not result in any significant prejudice to the defendant and would be in the interests of justice. Consequently, the court granted the plaintiff leave to amend his statement of claim to include the further particulars sought.

The court ordered that the plaintiff be granted leave to amend his statement of claim to include the proposed further particulars, with the condition that the amendments be made within a specified timeframe. The court also noted that any further applications for amendments would be subject to the court's discretion and would need to demonstrate a proper basis for the additional particulars sought.

Orders