KC & Ors v Shiley Inc & Anor [1995] FCA 1188

[88.4 28

JUDGMENT No. ...tsbosseecessssel covsnsessene

) ) sour ) No. NG 633 of 1995 ) )

BETWEEN: "KC" ie) Applicants AND: SHILEY INC & ANOR Respondents 15 JUNE 1995 REASONS FOR JUDGMENT

LOCKHART J.

The respondents seek to strike out certain paragraphs of the applicant's amended statement of claim filed on 22 February 1995 (the statement of claim) and of the amended application filed on the same day (the application). The motion is made after the filing by the respondents of their defences to the statement of claim. The relevant background facts as taken from the statement of claim may be briefly stated. The first applicant is the widow of the late Alan Kirkwood, the deceased, who died on 19 August 1990. The first applicant married the deceased on 18 June 1977. There are three children of the marriage born in 1982, 1984 and on 7 September 1990 (approximately three weeks after the death of the deceased). It is alleged that each of the applicants was

at all material times dependent upon the deceased.

The first respondent is a corporation incorporated in the

State of California, having its principal place of business

there and carrying on business in Australia. The second respondent is a corporation incorporated under the laws of the State of Delaware. It has its principal place of business in the State of New York and does business in Australia. The first respondent has been since March 1979 a wholly owned

subsidiary of the second respondent.

The deceased was surgically implanted with a heart valve, known as a Bjork Shiley 31 millimetre 70 degrees C/C, otherwise known as a convex/concave heart valve. On 19 August 1990 the strut in the valve fractured which caused the valve to fail, resulting in the death of the deceased (this is the

allegation made in paragraph 32 of the statement of claim).