Trupkovic v Finsbury (Instruments) Limited [2020] NSWSC 236

Supreme Court New South Wales

Medium Neutral Citation: Trupkovic v Finsbury (Instruments) Limited [2020] NSWSC 236 Hearing dates: 12 March 2020 Date of orders: 12 March 2020 Decision date: 12 March 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Leave is granted to add the fourth defendant in accordance with the proposed further amended statement of claim annexed to the affidavit of Sonya Teerman dated 12 February 2020 or in some similar form. (2) The plaintiff is to pay the costs of the first, second and third defendants thrown away by reason of the amendment. Catchwords: CIVIL PROCEDURE — originating process — amendment — no question of principle

CIVIL PROCEDURE — parties — addition of defendant — no question of principle Legislation Cited: Civil Procedure Act 2005 (NSW), s 64 Uniform Civil Procedure Rules 2005 (NSW), r 19.1 Category: Procedural and other rulings Parties: Mary Ann Trupkovic (Plaintiff) Finsbury (Instruments) Limited (First Defendant) Finsbury Orthopaedics International Limited (Second Defendant) Catholic Healthcare Limited (Third Defendant) Representation: Counsel: T McKenzie (Plaintiff)

Solicitors: Barry F Cosier & Associates (Plaintiff) Norton Rose Fulbright (First and Second Defendants) HWL Ebsworth Lawyers (Third Defendant) File Number(s): 2016/316883 Publication restriction: Nil

REVISED EX TEMPORE Judgment 1. The matter comes before the Court today by way of motion filed by the plaintiff on 14 February 2020 seeking leave pursuant to s 64 of the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) r 19.1 to add a fourth defendant. 2. Mr McKenzie of counsel appears on behalf of the plaintiff. Ms Walsh appears on behalf of the first and second defendants and Ms McCarthy appears on behalf of the third defendant. 3. The plaintiff relies on the affidavit of Sonya Teerman dated 12 February 2020. 4. The plaintiff underwent a hip replacement in 2007 and had an ADEPT hip prosthesis inserted with assistance from the proposed fourth defendant. In 2013, the plaintiff suffered a severe episode of hip pain and was referred for further treatment. It was determined there had been a catastrophic failure of the hip implant. She underwent revision surgery in February 2014. She maintains she continues to suffer pain, restriction of movement and has a limp. 5. She commenced proceedings against the first defendant as the manufacturer of the ADEPT hip prosthesis. The second defendant is a related company and the third defendant is the hospital where the procedure took place. The matter has been progressing for some time and the parties have already attended a mediation. 6. As set out in the affidavit of Ms Teerman, expert evidence was served on behalf of the defendants and then obtained on behalf of the plaintiff to the effect that it is possible that the operating surgeon may have a liability, in the sense that he may have been negligent. 7. Contrary to what has been previously alleged, it has been suggested in recent medical opinion that the problem arose not because of a deficiency in the implant but because a wrong sized implant was inserted. 8. Plainly this gives rise to an issue between the parties as to whether the cause of the plaintiff's injury and disability was a failure on the part of the treating surgeon or deficiencies in the implants provided by the first and second defendants. Hence the plaintiff wishes to join the doctor as the fourth defendant. 9. The matter has not yet been listed for hearing. The defendants do not oppose the application and, in effect, have nothing to say about it, it being a matter between the plaintiff and the Court. 10. I am satisfied that it is appropriate to grant leave to amend the statement of claim to add the proposed fourth defendant as a defendant to the proceedings. 11. I make the following orders: 1. Leave is granted to add the fourth defendant in accordance with the proposed further amended statement of claim annexed to the affidavit of Sonya Teerman dated 12 February 2020 or in some similar form. 2. The plaintiff is to pay the costs of the first, second and third defendants thrown away by reason of the amendment.