O'Reilly v Western Sussex NHS Trust (No.4) [2013] NSWSC 1905

O'Reilly v Western Sussex NHS Trust (No.4) [2013] NSWSC 1905

Leave for the first amendment was granted because the third defendant's later statement and evidence materially changed the factual context, adequately explaining the plaintiff's delay and change of position, the proposed allegation was not shown to be futile, and the necessary evidence could be addressed by existing expert evidence without recalling witnesses, adjournment, real delay or undue expense. Leave to add paragraph 42 on the second application was refused because the estate claim had not been properly pleaded, the application was made very late, no satisfactory explanation was provided for not pleading or particularising it earlier, and the defendants would suffer real prejudice...

Jurisdiction
Australia
Judgment Date
19 December 2013
Procedural Posture
Common Law Procedural Ruling on Motions to Amend Pleadings in Consolidated Damages Proceedings / During the Hearing After Evidence Had Commenced; Reasons for Orders Made on 11 October 2013 and 4 November 2013
Outcome
First amendment application granted. Second amendment application granted in part, with paragraph 42 deleted, and otherwise dismissed. Plaintiff ordered to pay defendants' costs of and occasioned by the amendments and the costs of the Notice of Motion.
Legal Topics
['amendment of Statement of Claim' 'overriding Purpose Under Civil Procedure Act 2005' 'fatal Accidents Act 1976 (uk) Dependency and Bereavement Claims' 'estate Claim Under Law Reform (miscellaneous Provisions) Act 1934 (uk)' 'late Amendment and Prejudice']
['civil Procedure' 'medical Negligence' 'conflict of Laws' 'damages'] ['amendment of Statement of Claim' 'overriding Purpose Under Civil Procedure Act 2005' 'fatal Accidents Act 1976 (uk) Dependency and Bereavement Claims' 'estate Claim Under Law Reform (miscellaneous Provisions) Act 1934 (uk)' 'late Amendment and Prejudice']

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

Common Law Procedural Ruling on Motions to Amend Pleadings in Consolidated Damages Proceedings / During the Hearing After Evidence Had Commenced; Reasons for Orders Made on 11 October 2013 and 4 November 2013

Legal Issues

  1. 1 ['Whether the plaintiff should have leave to amend the statement of claim during the hearing to allege that the third defendant negligently failed to reach the splenic flexure during a flexible sigmoidoscopy and that the first defendant was vicariously liable.' "Whether the plaintiff should have leave to amend the statement of claim during the hearing to add or particularise an estate claim for the late David O'Reilly's pain, suffering, loss of enjoyment and loss of amenities before death." 'Whether the estate claim had previously been pleaded by references to the Law Reform (Miscellaneous Provisions) Act 1934 (UK).']

Ratio Decidendi

Leave for the first amendment was granted because the third defendant's later statement and evidence materially changed the factual context, adequately explaining the plaintiff's delay and change of position, the proposed allegation was not shown to be futile, and the necessary evidence could be addressed by existing expert evidence without recalling witnesses, adjournment, real delay or undue expense. Leave to add paragraph 42 on the second application was refused because the estate claim had not been properly pleaded, the application was made very late, no satisfactory explanation was provided for not pleading or particularising it earlier, and the defendants would suffer real prejudice...

Court Disposition

First amendment application granted. Second amendment application granted in part, with paragraph 42 deleted, and otherwise dismissed. Plaintiff ordered to pay defendants' costs of and occasioned by the amendments and the costs of the Notice of Motion.

Orders

  • ['On 11 October 2013, grant leave to the plaintiff to file a Second Further Amended Consolidated Statement of Claim by 10 am 17 October 2013.' "On 11 October 2013, order the plaintiff to pay the defendants' costs of and occasioned by the amendment." 'On 4 November 2013, grant leave to the plaintiff to file a Third...