Sydney South West Area Health Service v MD [2009] NSWCA 343

Sydney South West Area Health Service v MD [2009] NSWCA 343

Section 5O of the Civil Liability Act 2002 (NSW) is a defence that must be specifically pleaded in the defence. Although the trial judge erred in refusing the amendment and in excluding related expert evidence, those errors did not result in a substantial miscarriage of justice because, even if the evidence were admitted and s 5O considered, it would not have changed the outcome given the trial judge’s factual findings. Costs should follow the event, and the original cost order was not justified without evidence. The non-publication order was made without input from the parties and should be set aside and replaced with an order more narrowly tailored to protect the identities involved.

Jurisdiction
Australia
Judgment Date
16 September 2009
Procedural Posture
Civil Appeal / Appeal From Trial Judgment
Outcome
Appeal on liability dismissed; appeal on costs allowed; appeal as to non-publication order allowed.
Legal Topics
['pleading Requirements for Statutory Defences' 'duty of Care in Medical Treatment' 'standard of Care for Professionals' 'application of Civil Liability Act 2002 (nsw) S 5 O' 'costs Orders on Appeal' 'non Publication and Anonymisation Orders']
['civil Procedure' 'medical Negligence'] ['pleading Requirements for Statutory Defences' 'duty of Care in Medical Treatment' 'standard of Care for Professionals' 'application of Civil Liability Act 2002 (nsw) S 5 O' 'costs Orders on Appeal' 'non Publication and Anonymisation Orders']

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

Civil Appeal / Appeal From Trial Judgment

Legal Issues

  1. 1 ['Whether s 5O of the Civil Liability Act 2002 (NSW) must be specifically pleaded by a defendant to rely on it' 'Whether the trial judge erred in refusing leave to amend the defence to plead s 5O' 'Whether the exclusion of expert reports on peer professional opinion was in error' 'Whether there was a breach of duty of care by Dr Fulcher' 'Appropriateness of costs orders against the first appellant' 'Appropriateness of the non-publication order made in the trial court']

Ratio Decidendi

Section 5O of the Civil Liability Act 2002 (NSW) is a defence that must be specifically pleaded in the defence. Although the trial judge erred in refusing the amendment and in excluding related expert evidence, those errors did not result in a substantial miscarriage of justice because, even if the evidence were admitted and s 5O considered, it would not have changed the outcome given the trial judge’s factual findings. Costs should follow the event, and the original cost order was not justified without evidence. The non-publication order was made without input from the parties and should be set aside and replaced with an order more narrowly tailored to protect the identities involved.

Court Disposition

Appeal on liability dismissed; appeal on costs allowed; appeal as to non-publication order allowed.

Orders

  • ['Appeal on liability dismissed.' 'Appeal on costs allowed; the plaintiff to pay the costs of the first defendant of the proceedings.' 'Appeal as to non-publication order allowed; the non-publication order set aside and replaced with an order maintaining anonymisation of the plaintiff’s name in published judgments...