Proceedings transfer, costs implications & pleadings

Verhoeven v Halliday [2017] NSWSC 77 saw an application by a plaintiff in proceedings which arose from alleged medical negligence (anaesthesia), to transfer the proceedings from the Supreme Court NSW to the District Court NSW.

Claims for nervous shock made on behalf of the deceased’s mother and his children had been settled, so that only quantification of the Compensation to Relatives Act aspect of the claim remained. Breach of duty and causation of the death had been admitted.

Although the defendant had indicated that  it would not raise any issues under UCPR 42.34, the plaintiff noted at [8] that it remained open to a trial judge to disregard this concession and make a costs order adverse to the plaintiff when the damages were finally assessed (if less than $500,000 in the Supreme Court).

Harrison J said at [10] that it was far more likely, if not in fact certain, that the defendant’s concession about costs that was made plain in correspondence would carry the day in a costs argument before any judge of the Court. Accordingly the plaintiff’s summons was dismissed with costs ordered in favour of the defendant.

In passing at [2], Harrison J made obiter comment about the level of detail required in a statement of claim, saying:

It should not, by way of example, contain a minute-by-minute journey through medical or surgical records referring to almost everything that might have happened to a patient whilst in an operation or under an anaesthetic. This type of approach regrettably seems to have gained favour with some members of the legal profession practising in the field of medical negligence but for reasons that entirely escape me. It is an approach or style that is not to be encouraged and I would actively discourage it.

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