McGarry v Southern NSW Local Health Network [2013] NSWSC 1109

McGarry v Southern NSW Local Health Network [2013] NSWSC 1109

Leave to amend was granted generally, but refused for the specified allegations against the second defendant because the materials relied on did not provide a sufficient expert or evidentiary basis for those allegations. The allegation of excessive or inappropriate force was speculative without expert adoption and nexus to the second defendant's conduct; the allegations concerning the flexible reamer and taper pin reamer or gouge were not connected by expert evidence to the plaintiff's harm or criticised conduct by the second defendant; and the allegation about recording procedures was unsupported against the second defendant and was contrary to the plaintiff's expert evidence that such...

Jurisdiction
Australia
Judgment Date
13 August 2013
Procedural Posture
Application for Leave to Amend Statement of Claim in Negligence Proceedings Arising From Hip Replacement Operation / Interlocutory Application
Outcome
Leave to file an amended statement of claim granted in part and refused in part; leave to replead refused.
Legal Topics
['amendment of Pleadings' 'expert Evidence' 'negligence Particulars' 'professional Negligence Expert Reports']
['practice and Procedure' 'professional Negligence' 'medical Negligence'] ['amendment of Pleadings' 'expert Evidence' 'negligence Particulars' 'professional Negligence Expert Reports']

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Procedural Posture

Application for Leave to Amend Statement of Claim in Negligence Proceedings Arising From Hip Replacement Operation / Interlocutory Application

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file an amended statement of claim.' 'Whether proposed allegations against the second defendant concerning excessive or inappropriate force, use of a flexible reamer, failure to use a taper pin reamer or gouge, and failure to record the number of procedures for which the reamer broach was used had a sufficient evidentiary or expert basis.']

Ratio Decidendi

Leave to amend was granted generally, but refused for the specified allegations against the second defendant because the materials relied on did not provide a sufficient expert or evidentiary basis for those allegations. The allegation of excessive or inappropriate force was speculative without expert adoption and nexus to the second defendant's conduct; the allegations concerning the flexible reamer and taper pin reamer or gouge were not connected by expert evidence to the plaintiff's harm or criticised conduct by the second defendant; and the allegation about recording procedures was unsupported against the second defendant and was contrary to the plaintiff's expert evidence that such...

Court Disposition

Leave to file an amended statement of claim granted in part and refused in part; leave to replead refused.

Orders

  • ['Grant leave to the plaintiff to file an amended statement of claim in the form of the document marked MFI 1, with the exception of the following paragraphs, in respect of which leave is refused: [20] (g), (i), (j) and (k) and [21] (g), (i), (j) and (k).']