Diaz v South Eastern Sydney Local Health District [2018] NSWSC 772

Diaz v South Eastern Sydney Local Health District [2018] NSWSC 772

The first defendant did not establish that the plaintiff's claim was completely untenable. Although the existing pleading did not adequately state the tenable case, Professor O'Connor's evidence provided an arguable basis that removal of a deeply embedded contraceptive implant required special experience and that...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 May 2018
Procedural Posture
Medical Negligence Proceeding / First Defendant's Application for Summary Dismissal by Notice of Motion Dated 27 April 2018
Outcome
The first defendant's application for summary dismissal was dismissed.
Legal Topics
['summary Dismissal' 'vicarious Liability' 'non Delegable Duty of Hospital' 'referral to Private Practitioner' 'median Nerve Injury From Removal of Contraceptive Implant']
['negligence' 'medical Negligence' 'civil Procedure'] ['summary Dismissal' 'vicarious Liability' 'non Delegable Duty of Hospital' 'referral to Private Practitioner' 'median Nerve Injury From Removal of Contraceptive Implant']

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Procedural Posture

Medical Negligence Proceeding / First Defendant's Application for Summary Dismissal by Notice of Motion Dated 27 April 2018

Legal Issues

  1. 1 ["Whether the plaintiff's claim against the first defendant was completely untenable so as to justify summary dismissal without trial." "Whether the Hospital could be vicariously liable for Professor Ledger's alleged breach in advising that he could perform, or referring the plaintiff to himself for, removal of a deeply embedded contraceptive implant." 'Whether the plaintiff had sufficiently pleaded a tenable cause of action against the Hospital.' 'Whether summary dismissal should be refused in a multi-defendant case before the case of all parties is closed.']

Ratio Decidendi

The first defendant did not establish that the plaintiff's claim was completely untenable. Although the existing pleading did not adequately state the tenable case, Professor O'Connor's evidence provided an arguable basis that removal of a deeply embedded contraceptive implant required special experience and that Professor Ledger, while acting in a capacity for which the Hospital could be vicariously liable, may have breached a duty by referring the plaintiff to himself or failing to refer her to a sufficiently experienced specialist. The application for summary dismissal was therefore refused, with directions for re-pleading.

Court Disposition

The first defendant's application for summary dismissal was dismissed.

Orders

  • ["The first defendant's Notice of Motion of 27 April 2018 is dismissed." 'Costs of the parties are costs in the cause.' 'Direct the plaintiff to file a Further Amended Statement of Claim in accordance with these reasons by 22 June 2018.' "Direct the plaintiff to serve any further opinion Professor O'Connor wishes to...