A claim for failure to warn of surgical risks is a new and distinct cause of action from a claim for negligent performance of surgery, notwithstanding that both may be characterised as breaches of the single comprehensive duty owed by a medical practitioner under Rogers v Whitaker. The characterisation of the duty at a general level does not determine whether an amendment raises a new cause of action for the purposes of r 376(4) UCPR; the relevant inquiry focuses on whether the breach alleged and its consequences are different. Where a failure-to-warn amendment is sought after the limitation period, the defendants' inability to recall whether warnings were given constitutes relevant prejudice warranting refusal of leave.
The full text is available to signed-in members, including the 30 later cases that cite this judgment.
12 of the 30 citing cases carry a classified treatment. How each court treated it is available to signed-in members.