Paul v Cooke [2011] NSWSC 959

Supreme Court New South Wales

Medium Neutral Citation: Paul v Cooke [2011] NSWSC 959 Hearing dates: 18/07/2011 Decision date: 18 July 2011 Jurisdiction: Common Law Before: Brereton J Decision: Leave refused to amend statement of claim to include additional particulars. Catchwords: PRACTICE AND PROCEDURE - Plaintiff seeks leave to amend statement of claim to include additional particulars - joint expert report contrary to proposed particulars - no contention court should reject joint expert report - compels finding on balance of probabilities - proposed particulars irrelevant - leave to amend refused. Category: Procedural and other rulings Parties: Christine Paul (plaintiff) Kenneth Cooke (defendant) Representation: Counsel: Mr D E Graham with Ms A Sandrine-Hughes (plaintiff) Mr J Kirk with Ms V Thomas (defendant) Solicitors: Maurice Blackburn Lawyers (plaintiff) Blake Dawson (defendant) File Number(s): 2008/20421

Judgment (ex tempore) 1The plaintiff seeks to amend the statement of claim by filing a third amended statement of claim. The amendments fall into two categories. The first is the addition to paragraph 25, under the heading "Particulars of Injuries" of three matters, to become subparagraphs (a), (b) and (c) of that paragraph. 2The parties have agreed as to the quantum of damages to which the plaintiff, if successful on causation, would be entitled. The plaintiff has indicated that she will not contend that the addition of these additional particulars makes any difference to the agreed quantum of her damages and, in turn, the defendant has indicated that on that footing it does not oppose the addition of those particulars. Accordingly, on that basis, I will allow the amendments proposed to the particulars to paragraph 25 of the statement of claim. 3The other proposed amendments are to paragraphs 21(c) and 24(b). In each case, the plaintiff seeks to amend an existing assertion that the wall of the aneurysm would have been weaker and thinner on 8 March 2006 (when the plaintiff eventually came to surgery) than in July 2003 (when it is alleged in the plaintiff's case that, with a proper and timely diagnosis by the defendant, she would have come to surgery), with the contention instead that the wall of the aneurysm "may have been" weaker and thinner at the later date than the earlier date. 4The expert neurosurgeons relied on by each of the parties have conferred and produced a joint report, which is tab 4 to exhibit PX01. In that report question 3 was: Is it more likely than not that the wall of the aneurysm was weaker in January-March 2006 than in July-September 2003? 5This was answered "No". 6Question 5 was: Is it more likely than not that the wall of the aneurysm was thinner in January-March 2006 than in July 2003? 7This, too, was answered "No". 8In the absence of any contention that the Court should reject the answer given by the experts in their joint report - and I do not apprehend or understand any such submission to have been foreshadowed - it would seem inevitable that the Court would conclude, on the balance of probabilities, that the aneurysm was no weaker, nor its walls thinner, in 2006 than in 2003. In that context, given that these allegations are made in connection with the different risks that attended the operations the plaintiff may have undergone in 2003, from that which she ultimately underwent in 2006, the possibility that the aneurysm may have been weaker and thinner at the later date is irrelevant. The finding on the balance of probabilities would be determinative. 9For that reason, I cannot see that the proposed amendments to 21(c) and 24(b) give rise to a triable relevant matter. They would be embarrassing, and I refuse leave therefore to amend paragraphs 21(c) and 24(b) in the manner proposed. 10I grant leave to the plaintiff to further amend the statement of claim by filing a further amended statement of claim adding the three additional particulars to paragraph 25 as contained in the document entitled "Third Amended Statement of Claim" initialled by me, dated this day and placed with the papers. I otherwise refuse leave to amend the further amended statement of claim.