Oakley by his tutor Annabel Robertson v State of New South Wales [2018] NSWSC 686

Supreme Court New South Wales

Medium Neutral Citation: Oakley by his tutor Annabel Robertson v State of New South Wales [2018] NSWSC 686 Hearing dates: 15 May 2018 Decision date: 15 May 2018 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to the defendant to file an amended defence in the form of the draft annexed to its notice of motion filed on 17 April 2018.

(2) Order the plaintiff to pay the defendant's costs of the defendant's notice of motion filed on 17 April 2018. Catchwords: PRACTICE AND PROCEDURE – application for defendant to amend defence to add defence under s 5M of the Civil Liability Act 2002 (NSW) – factual issues already the subject of evidence – no prejudice to the plaintiff demonstrated – amendment necessary to permit reliance on s 5M at the trial

COSTS – no reason to depart from general rule that costs ought follow the event Legislation Cited: Civil Liability Act 2002 (NSW) ss 5F, 5I, 5J, 5L, 5K, 5M Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Category: Procedural and other rulings Parties: Travis Oakley by his tutor Annabel Robertson (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Dr CE McConaghy (Plaintiff) S Glascott (Defendant)

Solicitors: Shine Lawyers (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2015/122042

Judgment – EX TEMPORE

Introduction 1. Travis Oakley by his tutor Annabel Robertson (the plaintiff) claims damages for the alleged negligence of the State of New South Wales (the defendant) arising from an accident which occurred when he was in Year 9. The plaintiff alleges that he injured himself when he performed the high jump in a physical education class at school. He alleged that he struck his head on the floor of the gymnasium and was injured. He alleged that he was not instructed as to the manner in which the jump ought be performed and that therefore the school was negligent and the defendant is liable for that negligence. 2. By notice of motion filed on 17 April 2018, the defendant seeks leave to file and serve an amended defence which is annexed to the notice of motion. The amendment sought is in paragraph 14, in which the defendant pleads by way of complete defence to the plaintiff's claim matters arising from s 5M of the Civil Liability Act 2002 (NSW) (the Act).