Thompson v Rosen [2020] NSWSC 356

Thompson v Rosen [2020] NSWSC 356

The proceedings were not an abuse of process and were not barred at this interlocutory stage. Gill concerned the liability of the manufacturer and supplier of Prolift, not the pleaded negligence of the defendant medical practitioners; Dr Rosen had no involvement with Prolift and Associate Professor Lam's alleged negligence involved treatment advice and procedures not determined in Gill. Any overlap in compensation could be addressed by deduction at trial. The expert report of Professor O'Connor supported a reasonable cause of action. On limitation, the defendants bore the onus and this was not one of the clearest cases: although the plaintiff knew early of injury and seriousness, it was...

Jurisdiction
Australia
Judgment Date
06 April 2020
Procedural Posture
Medical Negligence Proceedings; Interlocutory Application for Dismissal or Strike Out / Defendants' Notice of Motion Filed 30 July 2019 Under Uniform Civil Procedure Rules 2005 (nsw) Rr 13.4 and 14.28
Outcome
Defendants' notice of motion dismissed.
Legal Topics
['summary Dismissal' 'strike Out of Pleadings' 'abuse of Process' 'no Reasonable Cause of Action' 'discoverability of Personal Injury Claims' 'issue Estoppel and Res Judicata' 'class Action Overlap' 'double Compensation']
['practice and Procedure' 'limitation of Actions' 'medical Negligence' 'civil Procedure'] ['summary Dismissal' 'strike Out of Pleadings' 'abuse of Process' 'no Reasonable Cause of Action' 'discoverability of Personal Injury Claims' 'issue Estoppel and Res Judicata' 'class Action Overlap' 'double Compensation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Medical Negligence Proceedings; Interlocutory Application for Dismissal or Strike Out / Defendants' Notice of Motion Filed 30 July 2019 Under Uniform Civil Procedure Rules 2005 (nsw) Rr 13.4 and 14.28

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed under UCPR r 13.4 as an abuse of process because the plaintiff was a class member in Gill v Ethicon Sarl & Ors (No 5) [2019] FCA 1905 and had already been compensated for related damage.' 'Whether the proceedings disclosed no reasonable cause of action.' 'Whether the statement of claim should be struck out under UCPR r 14.28.' "Whether the plaintiff's claims against Dr David Rosen and Associate Professor Alan Lam were statute barred under the Limitation Act 1969 (NSW)." "Whether a Jones v Dunkel inference should be drawn from the plaintiff's failure to file affidavit evidence."]

Ratio Decidendi

The proceedings were not an abuse of process and were not barred at this interlocutory stage. Gill concerned the liability of the manufacturer and supplier of Prolift, not the pleaded negligence of the defendant medical practitioners; Dr Rosen had no involvement with Prolift and Associate Professor Lam's alleged negligence involved treatment advice and procedures not determined in Gill. Any overlap in compensation could be addressed by deduction at trial. The expert report of Professor O'Connor supported a reasonable cause of action. On limitation, the defendants bore the onus and this was not one of the clearest cases: although the plaintiff knew early of injury and seriousness, it was...

Court Disposition

Defendants' notice of motion dismissed.

Orders

  • ["The defendants' notice of motion filed 30 July 2019 is dismissed." "The defendants are to pay the plaintiff's costs on an ordinary basis."]