Bill Madden

This website provides updates on medical law and related issues, mostly in Australia. It is maintained by Bill Madden.

He is a lawyer in private practice in Australia, a Fellow of the Australian Academy of Law and also an Adjunct Fellow at the School of Law and at the School of Medicine, Western Sydney University, an Adjunct Professor at the Australian Centre for Health Law Research, Queensland University of Technology and a Senior Fellow, Melbourne Law Masters, University of Melbourne.

Court transfer application.

By Bill Madden

September 18, 2020

Pearson v Nepean Blue Mountains Health District [2020] NSWSC 1278 (on Caselaw) is a judical review of a decision by a Registrar to refuse transfer of three related claims (a compensation to relatives claim and two nervous shock claims) from the District Court to the Supreme Court. It is of interest for its restatement of the principles involved in assessing the merits of such transfers in respect of the potential quantum of claims. Ultimately…

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Intentional Conduct and the Operation of the Civil Liability Acts: Unanswered Questions.

By Bill Madden

September 17, 2020

A new and very helpful article by Professor Joachim Dietrich is available for download from the University of Queensland Law Journal site. The abstract reads: The Civil Liability Acts place significant limitations and caps on the damages that are recoverable for claims caught by those Acts or relevant parts thereof. Such limitations and preclusions significantly impact on what were plaintiffs’ existing common law rights prior to the passage of the CLAs. Importantly, however, many of…

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Appellate decision: Birth trauma, factual causation and ‘appropriate’ cases.

By Bill Madden

September 12, 2020

With thanks to Phil Gleeson for noting the publication of reasons for judgment in East Metropolitan Health Service v Ellis [2020] WASCA 147 (on JADE). There was no challenge to the findings of negligence by the primary judge. The Court, in a single judgment, dismissed an appeal by the Health Service which covered 22 different grounds of appeal, focusing on causation, with some overlapping themes (see [250]). This note is not aimed at the…

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Abuse: Appellate consideration of failed application to set aside settlement.

By Bill Madden

September 12, 2020

With thanks to Greg McAlister and also to Associate Professor Tina Cockburn for noting the long awaited appellate judgment in TRG v The Board of Trustees of the Brisbane Grammar School [2020] QCA 190 (on AUSTLII). The litigation arose from allegations of abuse of TRG by a counsellor employed by the School in about 1988. TRG retained later retained lawyers who issued proceedings on his behalf, which were settled following a mediation. An agreement…

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Medical negligence: Costs order where the parties failed to comply with an order for informal settlement conference / mediation.

By Bill Madden

September 12, 2020

Old v Miniter (No 2) [2020] NSWDC 519 (on Caselaw) followed on from a judgment in a medical negligence claim in which the plaintiff proved breach of duty but failed on causation, following a hearing of 8 days duration. (See Old v Miniter [2020] NSWDC 401.) As noted in the costs judgment at [11], a pre-trial interlocutory order had been made by the Judicial Registrar requiring that the parties participate in an informal settlement conference,…

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Abuse: Application to amend pleadings refused.

By Bill Madden

September 12, 2020

PWJ1 v The State of New South Wales [2020] NSWSC 1235 (on Caselaw) is of interest for its attention to the Court’s expectations in respect of pleadings, in a matter where plaintiff sought to join two further defendants to an existing claim against the State of New South Wales. The plaintiff claimed that whilst a resident at various residential institutions for children, for which the State was responsible, he was sexually and physically assaulted. The Court refused leave to file…

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Chemotherapy: Timing and perception of peril for mental harm + Omission of initial expert evidence report.

By Bill Madden

September 5, 2020

Barlow & Ors v St Vincent’s Hospital Sydney Limited [2020] NSWDC 500 (on Caselaw) arose against the background of a claim alleging chemotherapy ‘underdosing’ of cancer patients. Interlocutory motions requiried consideration by the Court. The relatively short decision contains a lot fact sensitive detail, however the following parts my be of broader interest. Timing of the peril. One issue was that of learning of the victim being put in peril after death of the…

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Abuse: Subpoenas in respect of documents which had been produced on discovery and later reported in a newspaper.

By Bill Madden

September 5, 2020

SL v Catholic Diocese of Lismore [2020] NSWSC 1203 (on Caselaw) arose in circumstances where the defendant had issued subpoenas to give evidence and to produce documents (to two lawyers) and a notice to produce (to a law firm). Those lawyers and the law firm had previosuly represented the plaintiff SL. The subpoenas sought the production of documents described in various ways, including notes, letters and memoranda and email communications, between the recipients of the subpoenas and…

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Proposed amendment of pleadings on retrial.

By Bill Madden

September 3, 2020

MacQuarrie v Hunter New England Local Health District [2020] NSWSC 1174 (on AUSTLII) required the Court to consider a plaintiff’s application to file a Further Amended Statement of Claim (PFASOC), in circumstances were the claim was returned to the Court for a retrial following a dispute at the first trial as to the admissibility of certain expert evidence. The primary issue in dispute in the substantive proceedings, as alleged by the plaintiff, is that…

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Advance copy: Good Medical Practice – Code of Conduct for Doctors in Australia

By Bill Madden

September 1, 2020

The Medical Board / AHPRA website now has available an advance copy of the new Good Medical Practice Code of Conduct for Doctors in Australia, which will come into effect on 1 October 2020. On the website page it appears immediately after the current Code, which remains in effect until 30 September 2020. A media release issued last week identified the major changes as: strengthened guidance about discrimination, bullying, sexual harassment and vexatious complaints; an…

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Court transfer application.

Intentional Conduct and the Operation of the Civil Liability Acts: Unanswered Questions.

Appellate decision: Birth trauma, factual causation and ‘appropriate’ cases.

Abuse: Appellate consideration of failed application to set aside settlement.

Medical negligence: Costs order where the parties failed to comply with an order for informal settlement conference / mediation.

Abuse: Application to amend pleadings refused.

Chemotherapy: Timing and perception of peril for mental harm + Omission of initial expert evidence report.

Abuse: Subpoenas in respect of documents which had been produced on discovery and later reported in a newspaper.

Proposed amendment of pleadings on retrial.

Advance copy: Good Medical Practice – Code of Conduct for Doctors in Australia

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