Introduction
In every personal injuries case, the parties are obliged to provide full and detailed particulars of the factual bases of their claims.[1] The Court of Appeal has considered how a number of personal injury cases were pleaded in practice and the intention of the legislature when enacting a number of the provisions of the Civil Liability and Courts Act 2004 (the 2004 Act). This is likely to have implications for legal practitioners and their clients.
The 2004 Act outlined a number of changes to how personal injury pleadings should be drafted. The Court of Appeal considered some of these in the case of Crean v Harty.[2]
In this medical negligence case, Mr Crean claimed that he did not provide consent for a third hip replacement operation. He argued that he had not been informed of the significantly increased risk of nerve damage. The clinician denied in their defence that the consent was deficient but did not provide specific reasons for this denial. Mr Crean sought further information about the consent process on foot of this denial. Mr Crean argued that he was entitled to further information about this denial, on the basis that he would be ambushed at trial as he was not aware of the clinician’s views of the consent process. In addition, he argued that the consent form may not have captured all of his interactions with the clinician.
The Court considered whether Mr Crean was allowed this information and ultimately decided in his favour. The reason for the...
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