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

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

Leave to amend was granted because the proposed amendments raised triable issues going to the real issues in dispute concerning the scope of duty and causation, and although the amendments might require the plaintiff to obtain further expert evidence, no trial date had been set and justice was best served by permitting the defendants to rely on the amendments, with costs of the motion and costs thrown away to be paid by the defendants.

Jurisdiction
Australia
Judgment Date
15 June 2021
Procedural Posture
Common Law Proceeding; Medical Negligence Claim / Notice of Motion by the First and Second Defendants for Leave to File Amended Defences
Outcome
Leave granted to the first and second defendants to file and serve amended defences; defendants ordered to pay the costs of the motion and costs thrown away by the amendments.
Legal Topics
['pleadings' 'amendment of Defences' 'late Application for Amendment' 'reasonable Prospects of Success' 'scope of Duty of Care' 'causation' 'prejudice and Case Management']
['civil Procedure' 'medical Negligence'] ['pleadings' 'amendment of Defences' 'late Application for Amendment' 'reasonable Prospects of Success' 'scope of Duty of Care' 'causation' 'prejudice and Case Management']

Case Brief

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Procedural Posture

Common Law Proceeding; Medical Negligence Claim / Notice of Motion by the First and Second Defendants for Leave to File Amended Defences

Legal Issues

  1. 1 ['Whether the first and second defendants should be granted leave under s 64(1) of the Civil Procedure Act 2005 (NSW) to file amended defences.' "Whether the proposed amendments raised triable issues about the scope of the defendants' duties of care and causation." 'Whether delay, prejudice, wasted costs and case management considerations warranted refusing leave to amend.']

Ratio Decidendi

Leave to amend was granted because the proposed amendments raised triable issues going to the real issues in dispute concerning the scope of duty and causation, and although the amendments might require the plaintiff to obtain further expert evidence, no trial date had been set and justice was best served by permitting the defendants to rely on the amendments, with costs of the motion and costs thrown away to be paid by the defendants.

Court Disposition

Leave granted to the first and second defendants to file and serve amended defences; defendants ordered to pay the costs of the motion and costs thrown away by the amendments.

Orders

  • ['The first and second defendants are to file and serve amended defences on or before 29 June 2021.' '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.']