MD v Sydney South West Area Health Service [2009] NSWDC 22
A defence under s 5O of the Civil Liability Act 2002 must be specifically pleaded and particularised before it can be relied upon. Since the defence was not pleaded until after the close of the defendant’s case, and allowing amendment would prejudice the plaintiff, leave to amend the defence is refused, and related expert reports are inadmissible to the extent they concern s 5O.
- Jurisdiction
- Australia
- Judgment Date
- 13 February 2009
- Procedural Posture
- Civil / Application for Leave to Amend Defence
- Outcome
- Application for leave to file amended defence refused
- Legal Topics
- ['pleading' 'standard of Care for Professionals' 'admissibility of Expert Evidence']
Case Brief
Summary, issues, holding and outcome
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Procedural Posture
Civil / Application for Leave to Amend Defence
Legal Issues
- 1 ['Whether a defence under Civil Liability Act 2002 s 5O must be specifically pleaded and particularised' 'Whether application for leave to amend defence to plead s 5O should be granted']
Ratio Decidendi
A defence under s 5O of the Civil Liability Act 2002 must be specifically pleaded and particularised before it can be relied upon. Since the defence was not pleaded until after the close of the defendant’s case, and allowing amendment would prejudice the plaintiff, leave to amend the defence is refused, and related expert reports are inadmissible to the extent they concern s 5O.
Court Disposition
Application for leave to file amended defence refused
Orders
- ['Application for leave to file amended defence refused' 'Reports of Dr Reid and Dr Boshell touching on s 5O are irrelevant and inadmissible']
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