WA Country Health Service v Wright [No 2]

[2010] WASCA 120

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pleadings
3. › Function of pleadings
4. › Relief confined to pleaded case
5. › Whether trial judge entitled to find liability on unpleaded basis
6. › Whether case litigated on different basis from pleadings
1. Negligence
2. › Medical negligence
3. › Duty of care
4. › Emergency department
5. › Failure to diagnose
6. › Whether patient should have been kept for observation
7. › Whether evidence supported finding on causation where cause of illness unidentified
1. Appeal
2. › New trial
3. › Whether new trial should be ordered where party raises on appeal a case not put at trial
4. › Exceptional circumstances required

Quick Take

A trial judge may not find liability in negligence on a basis that was neither pleaded nor litigated at trial, even where the judge considers the plaintiff's case could have been put more simply. Where a plaintiff deliberately frames a medical negligence case on the basis of a specific diagnosis, the court cannot substitute an alternative unpleaded theory of liability. Where a party raises on appeal a case not put at trial, a new trial will be ordered only in exceptional circumstances, and deliberately eschewing an alternative case at trial is not such a circumstance.