Clarity in a defence: Vicarious liability / non-delegable duty

Although an interlocutory decision dealing with an application to postpone an expert witness conclave, Tinnock v Murrumbidgee Local Health District [2015] NSWSC 151 is perhaps of more interest for the comments on non-admissions / denials in a defence.

The application to postpone the conclave was made as the health authority adopted the position that it is not vicariously, or otherwise, liable for the conduct of a Visiting Medical Officer, Dr Michael Payne, who either undertook, or supervised the undertaking of, the surgery sued upon.

Garling J commented at [4] – [6]:

It must be said that the defence of the Local Health District does not clearly articulate as the Uniform Civil Procedure Rules (“UCPR”) require, the position of the Local Health District, namely, that it is not vicariously or otherwise liable for the conduct of Dr Payne.

Contrary to what the Civil Procedure Act 2005 and the UCPR require, the defence does not identify the real issues, but rather dances around the issue, toys with it, and effectively pretends that it doesn’t exist. The time has long since passed that institutions which are experienced litigants, can put on defences in such terms, and expect the other parties and the Court to take notice of them.

If there is a real issue to be determined as to whether the surgeon undertaking or overseeing the performance of an operation is a person for whom the Local Health District did not regard itself as liable, it was under an obligation to positively plead that. It did not do so in this case. A mere non-admission is, here, wholly inadequate.

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