Lange v O'Carrigan [2013] NSWDC 183

District Court New South Wales

Medium Neutral Citation: Lange v O'Carrigan [2013] NSWDC 183 Hearing dates: 2, 3, 4, 5, 6, & 27/09/2013 Decision date: 04 October 2013 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Application by defendant to amend defence to plead the materialisation of an inherent risk pursuant to s 5I of Civil Liability Act 2002 is dismissed; 2.The defendant is to pay the plaintiff's costs of the dismissed application; 3.Verdict and judgment for the defendant; 4.The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless otherwise ordered; 5.Each party is to bear their own costs associated with the expert evidence given concurrently by Dr Bracken, Dr Conrad and Dr Sullivan, such costs to include witness expenses and the cost of representation during the taking of that evidence; 6.The exhibits may be returned; 7.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - professional negligence - orthopaedic surgery - whether total hip replacement surgery resulting in leg lengthening of the affected side represented a departure from the required standard of medical practice - whether revision surgery was undertaken too hastily as claimed - whether treatment was in accordance with peer professional opinion widely accepted in Australia - s 5O of Civil Liability Act 2002; PRACTICE AND PROCEDURE - whether late application by defendant to plead defence of materialisation of an inherent risk pursuant to s 5I of Civil Liability Act 2002 should be granted after close of evidence and submissions Legislation Cited: Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5I, s 5O, s 15, s 16 Civil Procedure Act 2005, s 56, s 57, s 58, s 64 UCPR, r 17.3, r 22.1, r 24.3, r 31.20, r 31.24, r 31.27, Sch 7, cl 5(c) Cases Cited: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 Ainsworth v Levi [1995] NSWCA 9 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Breen v Williams [1996] HCA 57; (1996-1997) 186 CLR 71 Cox v Fellows [2013] NSWCA 206 Dobler v Halvorsen [2007] NSWCA 335; (2007) 70 NSWLR 151 Dasreef Pty Ltd v Hawchar [2011] HCA 21 Halvorsen v Dobler [2006] NSWSC 1307 Haywood v Collaroy Services Beach Club [2005] NSWSC 1203 Keating v South Sydney Illawarra Health Service (NSWSC, Hall J, No 20232 of 2005, 7 July 2006, unreported) Luxton v Vines [1952] HCA 19 at [8]; (1952) CLR 352 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Paul v Cooke [2013] NSWCA 311 Penrith City Council v Parks [2004] NSWCA 201 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Sidaway v Board of Governors of Bethlem Royal Hospital & Maudsley Hospital [1985] UKHL 1; [1985] AC 871 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Thake v Maurice [1986] QB 644 Vairy v Wyong Shire Council [HCA] 62; (2005) 223 CLR 442 Wallace v Kam [2013] HCA 19 Category: Principal judgment Parties: Kelly Lange (Plaintiff) Timothy O'Carrigan (Defendant) Representation: Mr D Elliott (Plaintiff) Mr M Fordham SC (Defendant) Gerard Malouf & Partners (Plaintiff) TressCox Lawyers (Defendant) File Number(s): 2012/185574 Publication restriction: None