Proposed amendment of pleadings on retrial.

MacQuarrie v Hunter New England Local Health District [2020] NSWSC 1174 (on AUSTLII) required the Court to consider a plaintiff’s application to file a Further Amended Statement of Claim (PFASOC), in circumstances were the claim was returned to the Court for a retrial following a dispute at the first trial as to the admissibility of certain expert evidence.

The primary issue in dispute in the substantive proceedings, as alleged by the plaintiff, is that the true cause of her condition remained undiagnosed for a period of time due to the defendants’ respective failures to take an adequate clinical history. Had the defendants taken her proper history in consideration the plaintiff would have been accurately diagnosed and treated at an earlier time. Thus, she alleged irreparable harm would have been avoided. The variations made by the PFASOC concern, what the plaintiff considers, appropriate procedures that the defendants should have followed to prevent the risk of harm.

The plaintiff accepted that the PFASOC was a complete redraft. The defendnant opposed the filing of the document as it advances a new case against the first defendant without an explanation as to why that is necessary or desirable; it does not meet the requirements of the Court’s rules as to pleadings and as it inadequately defines the plaintiff’s case against the first defendant.

The defendants also argued that the PFASOC  exceeds the bounds of the oral and expert evidence relied upon by the plaintiff at the first trial and in some respects was contrdictory to the evidence given by the plaintiff at the first trial. Various other criticisms of the pleading were made, including a failure to meet the staged approach required by ss 5B5C and 5D of the Civil Liability Act

Following a detailed consideration of the PFASOC the Court refused the plaintiff’s application.