Polsen v Harrison (No. 4) [2021] NSWSC 251 (on Caselaw) is of interest for its consideration of issues relevant to an application for amendment of a statement of claim during the hearing of a medical negligence action. The claim concerned gastric sleeve surgery.
The propsed amendments included a new claim in trespass / battery.
The trial judge held that to allow the extensive re-pleading proposed would amount to an “unduly permissive approach”, of the kind that French CJ said in Aon should not occur (at [86]).
The decision also provides reminders of the need to plead the risk of harm as required by section 5B of the Civil Liability Act 2002 (NSW), the content of the duty of care and (perhaps) pleading of material facts such that would allow the Court, pursuant to s 5D of the Civil Liability Act, to carry out the necessary causation analyses. ([26] – [28]).